author: HUGH GIBSON, District Judge.

text:
    BRAZOSPORT TOWING CO., INC. v. 3,838 TONS OF SORGHUM LADEN ON BOARD the BARGE NL NO. 703, OFFICIAL NO. 291237.
    No. C.A. G-82-211.
    United States District Court, S.D. Texas, Galveston Division.
    Aug. 16, 1984.

      L. Glen Kratochvil, Schirmery & Kra-tochvil, Houston, Tex., for plaintiff.
    Martin B. Mulroy, Hill, Rivkins, Carey, Loesberg, O’Brien & Mulroy, Houston, Tex., for defendant.
   ORDER

HUGH GIBSON, District Judge.

Before the court is Compañía Nacional de Subsistencias Populares’ (Conasupo) motion for relief from judgment. The parties appeared and presented arguments and authorities to the court on July 30, 1984. Upon consideration of the same the Court finds as follows:

Suit was filed on June 25, 1982, by Bra-zosport for the recovery of freight charges. Plaintiff asserted a maritime lien and brought suit in rem against the cargo of 3,838 tons of sorghum. On July 7, 1982, plaintiff made a motion for interlocutory sale and the res was sold on July 16, 1982. On July 27, 1982, defendant having failed to answer or otherwise plead, the Court entered a default judgment in favor of plaintiff. At that time there was nothing in the Court’s record to indicate that the owner of the cargo, Conasupo, was an instrumentality of the Mexican Government.

Conasupo alleges that the sorghum was carried from Brownsville, Texas, to Alvarado, Mexico, on May 18, 1980 pursuant to a contract dated April 29, 1981 between Co-nasupo and Flumgo, S.A. De C.V. hereinafter “FLUMGO”. The contract, executed in Mexico, identifies petitioner as a decentralized public agency of the Federal Mexican Government. Under the contract Co-nasupo obligated to pay “the carrier” FLUMGO within five working days following delivery. Any dispute between the parties was to be resolved in the appropriate Federal Courts in Mexico City, Federal District. Intervenor further urges that under Mexican law the contract was not assignable.

Brazosport, acting under color of an assignment from FLUMGO, transported the cargo to Mexico and when it was not paid returned the cargo to the port of Galveston. Conasupo refused to pay Brazosport under the invoice presented on April 20, 1982 by Brazosport, because it was in Bra-zosport’s name and not in the name of FLUMGO, and under the Special Power dated March 8, 1982 because it failed to meet the requirements of Mexican Law. On June 21, 1982 Conasupo paid FLUMGO the freight in the amount of $76,012.04.

The notice of this suit was mailed June 25, Í982, in English and addressed to “AV Juarez No. 925° Piso, Mexico, D.F.” It was not directed to the attention of any individual. Conasupo is located at address Number 92 on Avenida Juarez. The letter was received July 1, 1982 and passed to several individuals (who could not read English) before it reached the appropriate party in October of 1982.

Conasupo has made a motion for relief from the judgment and to declare the judgment void for want of subject matter jurisdiction under the Foreign Sovereign Immunities Act. (FSIA) 28 U.S.C. § 1602, et seq. (1976). Immunity extended to foreign states under FSIA extends to foreign states’ political subdivisions, agencies, and instrumentalities. Jet Line Services, Inc. v. M/V MARSA EL HARIGA, 462 F.Supp. 1165, 1171 (D.Md.1978), citing Gray v. Permanent Mission of the People’s Republic of the Congo to the United Nations, 443 F.Supp. 816, 820 (S.D.N.Y.1978).

Section 1605(b) of thé Act provides,

(b) A foreign state shall not be immune from the jurisdiction of the courts of the United States in any case in which a suit in admiralty is brought to enforce a maritime lien against a vessel or cargo of the foreign state, which maritime lien is based upon a commercial activity of the foreign state: Provided, That—
(1) notice of the suit is given by delivery of a copy of the summons and of the complaint to the person, or his agent, having possession of the vessel or cargo is arrested pursuant to process obtained on behalf of the party bringing the suit — unless the party was unaware that the vessel or cargo of a foreign state was involved, in which event the service of process of arrest shall be deemed to constitute valid delivery of such notice; and
(2) notice to the foreign state of the commencement of suit as provided in section 1608 of this title is initiated within ten days either of the delivery of notice as provided in subsection (b)(1) of this section or, in the case of a party who was unaware that the vessel or cargo of a foreign state was involved, of the date such party determined the existence of the foreign state’s interest.
Whenever notice is delivered under subsection (b)(1) of this section, the maritime lien shall thereafter be deemed to be an in personam claim against the foreign state which at that time owns the vessel or cargo involved: Provided, That a court may not award judgment against the foreign state in an amount greater than the value of the vessel or cargo upon which the maritime lien arose, such value to be determined as of the time notice is served under (b)(1) of this section.

Unless special arrangements have been made, service and notice under the FSIA Section 1608 can be accomplished by sending a copy of the summons and complaint and a notice of suit, together with a translation of each into the official language of the foreign state, by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned. If service cannot be accomplished by the foregoing within thirty (30) days, the clerk may dispatch two copies of the documents to the Secretary of State who shall transmit one copy of the papers through diplomatic channels to the foreign state. 28 U.S.C. §§ 1608(a), 1608(e).

In chambers Plaintiff did not contest petitioner’s status nor its ownership of the res, but asserted that at the inception of this suit he was not aware that Conasupo was a Mexican government agency. Petitioner presented evidence that plaintiff should have known, that because plaintiff’s contract with FLUMGO was represented as an assignment and the assigned contract identified petitioner as an instrumentality of the Mexican government. Though in personam jurisdiction over the sovereign is not forfeited when the party attaching the res could not have known that the owner was a foreign sovereign, such cases are clearly recognized as being rare. Jet Line Services, Inc. v. M/V MARSA EL HARIGA, supra, 462 F.Supp. 1176.

If a foreign sovereign engages in commercial activity which bears the requisite relation to the U.S. it is not entitled to immunity and the district court has subject matter jurisdiction over the claim. Texas Trading Mill Corp. v. Federal Republic of Nigeria, 647 F.2d 300, 308 (2nd Cir.) cert. denied, 454 U.S. 1148, 102 S.Ct. 1012, 71 L.Ed.2d 301 (1982). Once an exception to the foreign sovereign immunity has been alleged the burden of establishing immunity to the Court’s jurisdiction is on the foreign state. Arango v. Guzman Travel Advisors Corp., 621 F.2d 1371, 1378 (5th Cir.1980); Matter of Sedco, Inc., 543 F.Supp. 561, 564 (S.D.Tx.1982); DeSanchez v. Banco De Nicaragua, 515 F.Supp. 900, 903 (E.D.La.1981); see Alberti v. Empresa Nicaraguense De La Carne, 705 F.2d 250, 253 (7th Cir.1983). If none of the excep tions to immunity under the FSIA are present, “the district court lacks both statutory subject matter jurisdiction and personal jurisdiction.” Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 489, 103 S.Ct. 1962, 1969, 76 L.Ed.2d 81, 89 (1983). Jet Line Services, Inc. v. M/V MARSA EL HARIGA, supra, 462 F.Supp. 1165.

Section 1605(a)(2) defines the scope of commercial activity under the Act by providing that a foreign state shall not be immune from the jurisdiction of the courts of the United States in any case,

in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.

Under the Act, “a commercial activity means either a regular course of commercial conduct or a particular commercial transaction or act. The commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose.” 28 U.S.C. § 1603(d). The focus of the exception to immunity, “is not on whether the defendant generally engages in commercial enterprise or activity ... rather, it is on whether the particular conduct giving rise to the claim in question actually constitutes or is in connection with commercial activity, regardless of the defendant’s generally commercial or governmental character.” Arango v. Guzman Travel Advisors Corp., supra, 621 F.2d 1379. For example, mineral extraction and the recruitment or hiring of American citizens in the U.S. fall within the definition of “commercial activity”. Broadbent v. Organization of American States, 628 F.2d 27, 33-34 (D.C.Cir.1980).

To constitute an exception under § 1605, the “commercial activity” must have sufficient contacts to meet the due process requirement of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Further there must be a nexus between the “commercial activity” and the claim asserted. Texas Trading v. Federal Republic of Nigeria, supra 647 F.2d 300.

In the case at bar petitioner Conasu-po committed no acts with relationship to plaintiffs claim that constituted commercial activity within the U.S. Conasupo contracted with FLUMGO, a Mexican corporation, to transport the sorghum. Conasu-po’s contract with FLUMGO was executed in Mexico and governed by Mexican law. Petitioner’s transactions with plaintiff Bra-zosport occurred in Mexico.

In Ministry of Supply, Cairo v. Universe Tankships, Inc., 708 F.2d 80 (2d. Cir.1983) a consignee of cargo, an Egyptian government agency, was found to be engaged in commercial activity in the U.S. The Egyptian agency purchased commodities in the U.S. and arranged for its carriage to Egypt under COGS A bills of lading. Id. at 84. The Carriage of Goods by Sea Act defines “carriage of goods” as covering “the period from the time when the goods are loaded on to the time when they are discharged.” 46 U.S.C. § 1301(e). The Court held that the sovereign’s agency was not entitled to immunity in a demur-rage claim when the agency wrongfully halted the discharge of cargo at the Egyptian port and thus wrongfully denied the time charterer’s use of the vessel.

In the instant case petitioner’s contracted with a FLUMGO in Mexico for the transport of goods. Petitioner did not enter into any contract for carriage in the U.S., with U.S. parties, or under U.S. laws, as the Egyptian agency did in Ministry of Supply, Cairo v. Universe Tankships, Inc., supra. See also, Gemini Shipping, Inc. v. Foreign Trade Org’n. for Chemicals & Foodstuffs, 647 F.2d 317 (2d. Cir.1981).

Conasupo’s only connection with the U.S. was that when Brazosport was not paid, Conasupo’s cargo was reshipped to a U.S. port and seized. Conasupo urges that the cargo was to be delivered prepaid and it had no obligation to pay Brazosport. Clearly, the mere attachment of property of a foreign sovereign is insufficient to bring the sovereign within the jurisdiction of this court. See Behring International, Inc. v. Imperial Iranian Air Force, 475 F.Supp. 383, 393 (D.N.J.1979). The Court therefore concludes that petitioner was immune from suit under the FSIA and that the Court thereby acknowledged statutory subject matter and personal jurisdiction over petitioner Conasupo.

Petitioner has made motion under Rule 60(b)(4) Fed.R.Civ.P. to declare the judgment void; to vacate the judgment; and to retry this case. Petitioner’s motion was filed on November 14, 1983, sixteen (16) months after the entry of this Court’s judgment.

Rule 60(b)(4) provides that on motion and upon such terms as are just, the Court may relieve a party or his legal representative from a final judgment if the judgment is void. The one year time limitation under Rule 60 to make motion for relief from judgment for mistake, newly discovered evidence, and fraud is inapplicable to instances of void judgments. A void judgment is “a legal nullity and a court considering a motion to vacate has no discretion in determining whether it should be set aside.” Jordon v. Gilligan, 500 F.2d 701, 704 (6th Cir.1974); See 7 J. Moore, Federal Practice. 60.25[2] (2d Ed.1973).

Federal courts have the power to determine their own jurisdiction and error in that determination will not render a judgment void unless the judgment is a clear usurpation of the court’s power. Lubben v. Selective Service System, Local Bd. No. 27, 453 F.2d 645, 649 (1st Cir.1972). The remedy for error in jurisdictional determinations is appeal. Jackson v. Irving Trust Co., 311 U.S. 494, 503, 61 S.Ct. 326, 330, 85 L.Ed. 297 (1941). See, 311 U.S. at 500, 61 S.Ct. at 328, in which the court distinguishes the case where appeal was the remedy from U.S. v. United States Fidelity & Guarantee Co., 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894 (1940) in which the court found the judgment void for want of consent of the sovereign to be sued or of an attempt on the part of officials to waive the sovereign immunity of certain Indian nations. Default judgments entered without proper authority should, however, be set aside. U.S. v. Melichar, 56 F.R.D. 49, 50 (E.D.Wisc.1972).

In this instance no issue of jurisdiction over a foreign sovereign was presented to the Court. Under the FSIA, the seizure, sale of the res, and entry of judgment without notice were acts beyond the court’s statutory subject matter jurisdiction and the petitioner was beyond the court’s in personam jurisdiction. Further, a valid judgment cannot be rendered in an in rem proceeding if the court lacks jurisdiction over the res. Pennoyer v. Neff, 95 U.S. (5 Otto) 714, 24 L.Ed. 565 (1877); Hicklin v. Edwards, 226 F.2d 410 (8th Cir.1955).

This Court further finds that petitioner has made motion within a reasonable time. Accordingly, the Court concludes that the final judgment entered in this matter on July 27, 1982 is void and is hereby vacated under Rule 60(b)(4). Petitioner is granted leave to answer and intervene. The Clerk is directed to reinstate this matter on the Court’s docket for call to trial on the court’s October/November docket.

Plaintiff shall deposit into the. registry of the Court the value of the cargo at the time of sale, that being $226,500.00, within ten (10) days.


source: Caselaw Access Project

author: JAMES LAWRENCE KING, Chief Judge.

license: Public Domain

text:
    Michael HRTICA, Plaintiff, v. ARMSTRONG WORLD INDUSTRIES, etc., et al., Defendants.
    No. 83-3102-Civ-KING.
    United States District Court, S.D. Florida, Miami Division.
    Sept. 10, 1984.

      Frederick M. Baron, Baron & Associates, Dallas, Tex., Louis S. Robles, Miami, Fla., for plaintiff.
    James C. Rinaman, Jr., Marks, Gray, Conroy & Gibbs, Jacksonville, Fla., for Owens-Illinois, Inc.
    Jon W. Zeder, Miami, Fla., for GAF.
    Rodd R. Buell, Miami, Fla., for Owens-Corning.
    Susan J. Cole, Coral Gables, Fla., for Eagle Picher.
    Brian S. Keif, Miami, Fla., for Combustion Eng.
    Joel R. Wolpe, Miami, Fla., for H.K. Porter.
    Thomas J. Schulte, Miami, Fla., for Keene.
    Gilbert Haddad, Coral Gables, Fla., for Raymark Ind.
    C. Bryant Boydstun, Jr., St. Petersburg, Fla., for Fibreboard.
   ORDER GRANTING DEFENDANT RAPID-AMERICAN’S RENEWED MOTION TO DISMISS

JAMES LAWRENCE KING, Chief Judge.

This cause arises before the Court upon the defendant RAPID-AMERICAN’S renewed motion to dismiss and supplement thereto.

Defendant has moved to dismiss the complaint on the grounds that this Court lacks in personam jurisdiction over it. In its earlier motion to dismiss, which this Court denied, defendant made the argument that Florida’s current long arm statutes, § 48.-181 and § 48.193, Fla.Stat. (1983), could not confer in personam jurisdiction as they could not be applied retroactively. In this renewed motion to dismiss, defendant, without conceding its point on retroactive application, now argues that even assuming the current statutes did apply, this Court still lacks in personam jurisdiction. Defendant’s new argument is divided into two parts, which the Court will address separately, based upon the date, 1969, plaintiff moved to Florida.

Before addressing defendant’s argument, however, the Court finds it necessary to note the following preliminary matters: Plaintiff’s complaint alleges that defendant, who is also sued as a successor in interest to other corporations, engaged in the manufacture and distribution of asbestos insulation products which caused plaintiff’s injuries and that defendant sold asbestos products within the State of Florida similar to those that injured plaintiff. Defendant attacked these jurisdictional allegations in its earlier motion to dismiss and in response plaintiff stated, “any jurisdictional concern as to RAPID-AMERICAN should be resolved in favor of permitting jurisdictional discovery”. As noted earlier, the Court denied the motion to dismiss and allowed discovery to proceed but now that discovery has been completed, plaintiff has failed to substantiate its jurisdictional allegations. Plaintiff’s allegations as to jurisdiction are taken as true on a motion to dismiss only if they are undisputed. Electro Engineering Products Co. v. Lewis, 352 So.2d 862 (Fla.1977). In this case, defendant has disputed the applicability of the long arm statutes in an affidavit by defendant’s treasurer which, in the course of outlining the relevant corporate history of defendant and its corporate predecessors, establishes that neither defendant or its immediate predecessor ever engaged in an asbestos related business in Florida or elsewhere. The Court, therefore, considers defendant’s following arguments from the standpoint of the undisputed jurisdictional evidence submitted by defendant.

Defendant first argues that the plaintiff’s injury in this case did not result from the defendant’s, or its predecessor’s pre 1969 activities in Florida and, therefore, cannot, pursuant to Florida’s current long arm statutes § 48.181 and § 48.193, form the basis for in personam jurisdiction for any act which occurred prior to 1969.

The Court notes that both of the current long arm statutes require that the activities in Florida of a nonresident defendant, such as the defendant in this case, must have resulted in the injury complained of in order to confer jurisdiction. This requirement of “connexity” has been consistently upheld by judicial interpretation. Bloom v. A.H. Pond Co., Inc., 519 F.Supp. 1162 (S.D.Fla.1981); April Industries, Inc. v. Levy, 411 So.2d 303 (Fla. 3d DCA 1982). Prior to 1969, plaintiff was not exposed to any asbestos products in Florida attributable to the defendant or its predecessor. Therefore, as plaintiff’s cause of action is predicated upon his exposure to asbestos products, there is no con-nexity between the cause of action alleged and the pre 1969 activities of the defendant or its predecessor within Florida. In the absence of such connexity, the Court finds the defendant is not subject to in personam jurisdiction for any pre 1969 acts.

Defendant further argues that post 1969, any asbestos related activities in Florida were conducted only by its independent subsidiary and those activities are insufficient to subject the defendant to in person-am jurisdiction for plaintiff’s post 1969 asbestos exposure injury.

Here again, the Court notes, the only undisputed jurisdictional evidence before it is in the form of defendant’s affidavit which indicates that the subsidiary in question was independent of the nonresident defendant parent corporation and further, that the subsidiary’s activities in Florida were not controlled by the defendant. Case law holds that the transaction of business in Florida by a subsidiary corporation does not establish jurisdiction over the parent corporation under a long arm statute if that parent transacts no business in Florida. In order for the acts of the subsidiary to confer jurisdiction over the parent corporation, it must be established that the nonresident parent corporation exercised control over its subsidiary’s activities in Florida. MacMillan-Bloedel, Ltd. v. Canada, 391 So.2d 749 (Fla. 5th DCA 1980). Plaintiff has argued, in its memorandum opposing defendant’s renewed motion to dismiss, that defendant’s claim of independence from its subsidiary is irrelevant to a determination of either its responsibility or of this Court’s jurisdiction over it. Plaintiff bases its argument on the decision in Tretter v. Rapid-American Corporation, 514 F.Supp. 1344 (E.D.Mo.1981), which in denying defendant’s motion for summary judgment, held it was liable, as a result of its merger, for any asbestos exposure occurring prior to its merger. This Court agrees with defendant that the holding in Tretter speaks only to the issue of defendant’s liability and not to the issue of in personam jurisdiction. Therefore, as defendant’s subsidiary was independent of it, the Court finds that the subsidiary’s post 1969 activities in Florida cannot subject defendant to in personam jurisdiction.

As a final note, this Court does not find persuasive plaintiff’s argument that defendant was under a duty to warn plaintiff after he moved to Florida in 1969 of the dangers of asbestos and that the breach of this alleged duty to warn is a basis, under Fla.Stat. § 48.193(l)(b), for subjecting defendant to in personam jurisdiction. While a supplier of a product who knows or has reason to know that the product is dangerous has a duty to warn third persons, neither defendant or its predecessor ever manufactured, sold or supplied asbestos related products and therefore, defendant as a non supplier was under no duty to warn. See Cohen v. General Motors Corp., 427 So.2d 389, 390 (Fla. 4th DCA 1983). Moreover, succession by merger alone does not impose a duty to warn of recently discovered defects. Gee v. Tenneco, Inc., 615 F.2d 857, 866 (9th Cir.1980).

Accordingly, this Court, after considering oral argument of counsel at a hearing on August 10, 1984, and reviewing the renewed motion to dismiss, the memoranda of law in support and in opposition thereto, herein does:

ORDER and ADJUDGE that defendant’s motion to dismiss be, and it is, GRANTED. This case is DISMISSED as to defendant RAPID-AMERICAN.

DONE and ORDERED in chambers at the United States Courthouse, Miami, Dade County, Florida this 10th day of September, 1984.


author: ROBERT J. McNICHOLS, Chief Judge.

text:
    HANFORD ATOMIC METAL TRADES COUNCIL, a labor organization, Plaintiff, v. ROCKWELL INTERNATIONAL CORPORATION, d/b/a Rockwell Hanford Operations, a corporation, Defendant.
    No. C-84-115 RJM.
    United States District Court, E.D. Washington.
    Sept. 17, 1984.

      Daryl D. Jonson, of Cowan, Walker, Jonson & Moore, Richland, Wash., for plaintiff.
    Robert S. Gruhn, Chief Counsel, R.M. Carter, Staff Atty., Richland, Wash., for Hanford Operations.
   ORDER

ROBERT J. McNICHOLS, Chief Judge.

This action, ostensibly brought on behalf of the Hanford Atomic Metal Trades Council [HAMTC], seeks to enforce an arbitration clause and to compel Rockwell to submit the question of whether a newly developed work classification was improperly awarded. Cross-motions for summary judgment are currently pending. Pertinent chronology is as follows:

June 22, 1978 — United Brotherhood of Carpenters and Joiners Local 2403 [hereinafter 2403] and Oil, Chemical and Atomic Workers Union Local I-369 [hereinafter 1-369] entered into an agreement inter se that decontamination work would be handled by 1-369. This agreement was reaffirmed by the parties on February 5, 1982.
December 14, 1982 — Rockwell developed a new job classification under HAMTC’s jurisdiction; namely, “decommissioning and decontamination” [hereinafter D & D]. As the result of an agreement between Rockwell and HAMTC, this work was awarded to 1-369.
August 29, 1983 — Local 2403, believing that D & D work should have been given to its members, filed a ULP complaint with the NLRB which was subsequently withdrawn.
October 26, 1983 — 2403 sought permission from HAMTC to force Rockwell to arbitration on the issue. Leave was given for 2403 to pursue a grievance at its own expense. Rockwell refused to arbitrate.
February 1, 1984 — The instant action was filed in Benton County Superior Court and thereafter removed.
March 28, 1984 — HAMTC votes to “reaffirm the Council’s position that no arbitration that affects more than one affiliate can be processed without the concurrence of our legally retained General Counsel.”

Essentially, it is Rockwell’s position that HAMTC is the sole bargaining agent for all craft unions within its jurisdiction under the express terms of the CBA and that it would be an unfair labor practice for the company to bypass HAMTC and deal directly with 2403. It is argued that HAMTC by-laws provide for resolution of jurisdictional disputes, and that internecine warfare among competing affiliate unions must be solved internally in accord with those by-laws. It is plaintiff’s position that as a third-party beneficiary of the CBA, it is entitled to enforce the terms of that agreement in its own right and for its own benefit. It is further contended that interpretation of the substantive terms of the CBA, and more specifically, the arbitrability of a given dispute, is reserved to the arbitrator in the first instance, and that the Court’s only function is to determine the validity and enforceability of the arbitration clause.

Frankly, plaintiff’s position is not as groundless as it might at first glance appear. It is well-settled that:

Although it is true that the question of what issues are arbitrable is for the court, not the arbitrator, ... a court’s determination of arbitrability must be based on the arbitration clause, not on the substantive contract clauses.

Laborers International Union v. Town Concrete Pipe, 680 F.2d 1284, 1285 (9th Cir.), cert. denied, 459 U.S. 1039, 103 S.Ct. 453, 74 L.Ed.2d 606 (1982).

The rationale underlying this principle is explained in Haig Berberian, Inc. v. Can nery Warehousemen, 535 F.2d 496 (9th Cir.1976);

“The processing of even frivolous claims may have therapeutic values of which those who are not part of the plant environment may be quite unaware.” ... It is the arbitration clause, not the substantive contract clause in controversy, which governs whether a dispute must be submitted to arbitration. Arbitration is to be ordered “unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.”

Id. at 499 (citations omitted, emphasis original).

Thus, notwithstanding the lack of any genuine issue of fact as to HAMTC being the sole and exclusive bargaining agent for its constituent unions; that in such capacity HAMTC entered into an agreement with Rockwell in awarding D & D work; and that HAMTC has officially withdrawn support from 2403’s instant efforts, it may well be that plaintiff must prevail unless this Court can say, “with positive assurance,” that the arbitration clause itself is inapplicable. Stated another way, if the arbitration clause is even arguably operative, the Court must force Rockwell to the bargaining table with an entity other than the exclusive bargaining agent, and in so doing ignore one of the most firmly established principles of labor law. Cf., Emporium Capwell Co. v. Community Org., 420 U.S. 50, 95 S.Ct. 977, 43 L.Ed.2d 12 (1975).

In construing an arbitration clause, however, a court is not limited to the naked language of the clause itself, but may look to external evidence in ascertaining meaning. Haig Berberian, supra, at 499. The clause at issue, Article XIX of the CBA, expressly subsumes the terms of Article XVIII, which sets forth the various steps in the grievance procedure which must be exhausted before a dispute is in an arbitrable posture. XVIII(6) (Step III) clearly contemplates the necessity of Council authorization and involvement. With this prerequisite in mind, a brief review of the transactional events underlying 2403’s asserted authority to proceed in the name of HAMTC is in order.

At the time 2403 initially filed a grievance on August 31, 1983 it had not yet secured permission from HAMTC to do so. Such permission was granted, apparently nunc pro tunc, by unanimous vote of the Council on October 26, 1983. On that same date, Council President Todish signed an arbitration demand in HAMTC’s name, as required under Article XVIII(6). Subsequently, a motion was made before the Council to revoke the authorization granted on October 26th. This motion was tabled. On March 28, 1984 the following motion was brought to a vote and narrowly passed:

It has always been the rule within the Council that our General Council [sic] David E. Williams handles all legal matters on behalf of the Council. His retainer agreement and our By-Laws clearly spells out our attorneys duties.
Because of recent developments that may cast some doubt as to Council authority over the various affiliates, I hereby move that we reaffirm the Council’s position that no arbitration that affects more than one affiliate can be processed without the concurrence of our legally retained General Council [sic] or his duly elected representative. I further move that no affiliate, through any of its representatives, may act with the authority or use the name of the Council without the express approval of the legal delegate body.
I further move that a copy of this motion, a copy of our By-Laws and a copy of our attorneys retainer agreement be sent by certified mail to the legal address of all HAMTC affiliates.

Deposition of Pete J. Todish, April 3, 1984, Exhibit 1.

It is now HAMTC’s position, as least as interpreted by its president, that whatever authority 2403 may have enjoyed prior to March 28th of this year, such authority is now clearly and unambiguously revoked, and that 2403’s arbitration efforts now stand repudiated for failure to exhaust internal union remedies pertaining to jurisdictional disputes.

The only conclusion which can be drawn from the foregoing series of events is that “the arbitration clause is not susceptible of an interpretation that covers the asserted dispute” for lack of a necessary party in these proceedings; to wit, HAMTC.

THEREFORE IT IS ORDERED that:

(1) Plaintiff’s Motion for Summary Judgment is DENIED.

(2) Defendant’s Motion for Summary Judgment is GRANTED.

(3) Defendant’s Motion for Costs and Fees is DENIED.


author: OWEN, District Judge.

text:
    Miriam MEIRI, Plaintiff, v. Claudius DACON, Roger Woods, Maryanne Montedorisio, Stanley McKinley, Adele Stern and The Immigration and Naturalization Service, Defendants.
    No. 83 Civ. 0821(RO).
    United States District Court, S.D. New York.
    Sept. 26, 1984.
    Miriam Meiri, pro se.
    Rudolph W. Giuliani, U.S. Atty. for S.D. N.Y., New York City (Gerald T. Ford, Asst. U.S. Atty., New York City, of counsel), for defendants.
   OPINION AND ORDER

OWEN, District Judge.

Plaintiff Miriam Meiri was employed by the United States Immigration and Naturalization Service (INS) for one year in a Career Conditional appointment as a clerk-stenographer GS-4. Career Conditional appointments are subject to a one-year probationary period during which the employee is evaluated with a view toward a permanent appointment if his or her performance and conduct are adequate. Plaintiff was not retained past her probationary period and, after her discrimination complaint to the Equal Employment Opportunity Commission was rejected, she brought the instant action, alleging that she was not given a permanent position because of religious discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

Defendants now move for summary judgment, pursuant to Fed.R.Civ.P. 56, asserting that plaintiff has failed to make out a prima facie case under the standards of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). Plaintiff, proceeding pro se has cross-moved for summary judgment. For the reasons set forward below, summary judgment is granted to defendants and this action is dismissed in its entirety.

In addition to INS, plaintiff has named her former supervisor and several other INS employees as individual defendants. It is well settled that, pursuant to Section 717 of the Civil Rights Act, 42 U.S.C. § 2000e-16, the only proper defendant in an action for discrimination by a federal agency is the head of that agency or department. Brown v. GSA, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976); White v. GSA, 652 F.2d 913, 916-17 (9th Cir.1981). Plaintiff has not alleged any conduct on the part of any of the individual defendants which could possibly justify an exception to this rule and Alan C. Nelson, in his official capacity as INS Commissioner, is therefore the only appropriate defendant to this action. 42 U.S.C. § 2000e-16, Hackley v. Roudebush, 520 F.2d 108, 115 (D.C.Cir.1975).

As to the INS, I find that plaintiff has failed to establish a prima facie case of discrimination sufficient to shift the burden of going forward to the defendant. In order to make out a prima facie case of discriminatory termination, a plaintiff must show that he or she [1] is a member of a protected class, [2] was qualified for the position held, and was [3] discharged and [4] replaced by a person outside of the protected class. Lee v. Russell County Board of Education, 684 F.2d 769, 773 (11th Cir.1982).

Here the evidence clearly shows that, while plaintiff, an Orthodox Jew, is a member of a protected class and was discharged, she was not qualified for the position from which she was terminated. Claudius Dacon, plaintiffs former supervisor and a named defendant, listed twelve reasons for her termination. While plaintiff contests Mr. Dacon’s description of certain of the incidents which formed the basis of these reasons, she concedes that other incidents Mr. Dacon cites did occur. The undisputed incidents for which plaintiff was terminated include: the unauthorized sending of a letter to the United States Vice-Counsel in Vancouver, Canada; the sending of a harsh note to the supervisor of another unit criticizing his handling of timekeeping procedures; and the unauthorized mailing of a letter on official government stationery to an alien requesting that he contact her regarding what she described as “important documents.”

One of the more serious of plaintiff’s failings in her job was her habit of engaging certain attorneys and other INS visitors in unnecessary conversations, including conversations in foreign languages. This was a matter of particular concern to the INS because it had, at the time, been the focus of charges of favoritism in its procedures. Mr. Dacon’s affidavit indicates that he attempted to discuss this and other problems with plaintiff, but that she was impatient and unresponsive. Plaintiff continues to assert that it was her right to engage in these conversations. (“I am guilty of talking with intelligent individuals in languages which I learned in school whenever the occasion presented itself.” Plaintiff’s “answer” to defendants' answer, April 18, 1988 at P. 4).

These and other incidents described in the record demonstrate that plaintiff was simply not qualified for a permanent INS position. The Federal Personnel Manual and the INS Administrative Manual, §§ 2231.01 and 2231.02 provide that:

During the probationary period, the employee’s conduct and performance in the actual duties of the position may be observed and, if circumstances warrant, the employee may be separated without undue formality.

In this case, plaintiff broke too many rules and, apparently without realizing it, was just too difficult a person to work with to be offered a permanent job. As plaintiff has failed to demonstrate that she was qualified for the job from which she was terminated, she has failed to establish a prima facie case of discrimination. I also note that, plaintiff’s position was eliminated after she was terminated, so she was not “replaced by a person outside the protected class.”

Summary judgment is granted in defendant’s favor and this action is dismissed.

So ordered.

      . After unsuccessful attempts to find an attorney to handle this case, plaintiff requested that I appoint counsel to represent her. I denied this request in October 1983, stating that on the record as of that date, it did not seem appropriate. It was clear at that point that the government intended to rely for its defense on the twelve reasons for termination of which plaintiff had already been made aware in the INS and EEOC proceedings which preceded this litigation and which, in certain respects, she had conceded were accurate.
      Furthermore, plaintiff has not offered any evidence that she is unable to afford a private attorney or suggested how her relatively competent prosecution of this matter was impeded in any meaningful way by her lack of counsel.

      . In her deposition, plaintiff referred to this letter, which the government accurately describes as "acerbic,” as a "friendly note.” Her insensitivity to the likely effect of her words is consistent with Mr. Dacon’s description of her as someone who was difficult to supervise or work with in an office situation.

      . Even if the record could be viewed as establishing a prima facie case of discrimination, sufficient to shift the burden of going forward, defendants have more than met that burden by demonstrating that plaintiff was terminated for legitimate, nondiscriminatory reasons. Furthermore, plaintiff has presented no evidence whatsoever to show that these reasons were a pretext for discrimination, and defendants have submitted the affidavits of two other Jewish INS employees to whom plaintiff referred in her deposition, stating that they were never discriminated against in any way by Mr. Dacon. Thus, even if I view the record as the rebuttal of "the presumption of discrimination” required after a prima facie case is established, summary judgment in defendants’ favor is appropriate. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).


author: MANSFIELD, Circuit Judge:

text:
    STATE OF CONNECTICUT, Plaintiff, v. TUG CYNTHIA MORAN, her engines, boilers, tackle, etc.; TUG CYNTHIA MORAN, INC.; and Moran Towing & Transportation Co., Inc., Defendants and Third-Party Plaintiffs, v. CONSOLIDATED RAIL CORPORATION, Third-Party Defendant.
    No. H-80-465.
    United States District Court, D. Connecticut.
    Oct. 2, 1984.

      Burlingham Underwood & Lord by W. Thaddeus Miller, Robert B. Pohl, New York City, for defendants & third-party plaintiffs.
    Cooney, Scully & Dowling, by Patrick J. Flaherty, Maura A. Chase, Hartford, Conn., for third-party defendant.
   MANSFIELD, Circuit Judge:

This is an action by the State of Connecticut (“State”) against the Tug Cynthia Moran (the “Tug”), Tug Cynthia Moran, Inc. (the “Tug Company”), and Moran Towing & Transportation Co., Inc. (“Moran”), for damages caused to the fendering system of the Moses Wheeler Bridge (“1-95 Bridge”), owned by the State, when the bridge was hit by the barge Sea Horse I (“Barge”), proceeding north on the Housatonic River by Devon, Conn, on July 31, 1978, in push tow of the Tug. The Tug Company, a Delaware corporation, was at all relevant times the owner of the Tug. Moran, a New York corporation, was the bareboat charterer of the Tug. Jurisdiction over the subject matter, an admiralty and maritime claim, exists pursuant to Title 28 U.S.C. § 1333. The State claims that it suffered $205,000 damages to its bridge fender as a result of the negligent operation of the Tug and Barge.

The defendants filed a third-party complaint against Consolidated Rail Corporation (“Conrail”) claiming that it is liable in whole or part for the allision because of the negligence of the tender of a Conrail-owned bridge (the “Railroad Bridge”), located approximately 50 yards to the north of the 1-95 Bridge. The tender allegedly failed to open the leaves of the Railroad Bridge in time, as he had represented that he would do and therefore caused the Tug and Barge to change course in order to avoid a collision with the Railroad Bridge and thus to strike the 1-95 Bridge fender.

On September 11, 1984, the defendants settled the State’s claim against them. The defendants’ third-party claim against Conrail was bifurcated and on September 17, 1984, the issue of liability was tried before me, sitting without a jury. The following constitute my findings of fact pursuant to Rule 52(a), F.R.Civ.P., and conclusions of law with respect to the issue of liability.

The Tug is a single screw steel motor tug of 239 gross tons and 162 net tons built in 1957. It is 100.25' in length, 27' breadth and 15' depth, and has a diesel engine producing about 1,757 h.p. with pilot house control. The Barge is a tank barge 290.1' in length, 60' breadth and 18.5' depth.

On July 31, 1978, the Tug carried a crew of six men, namely a master, mate, engineer, two deck hands and a cook, all employed by Moran and all competent and qualified. The Tug was seaworthy and adequately manned and equipped for the towing of barge Sea Horse I.

The 1-95 Bridge spans the Housatonic River near the City of Devon. It is an unmanned fixed bridge located wholly within the State of Connecticut and has a fender system on the east and west sides of the channel. These fenders parallel the outer boundaries of the draw under the bridge.

The 1-95 Bridge and its fender system were constructed by the State pursuant to a permit and plans issued under the Federal General Bridge Act of 1946 and signed on behalf of the Chief of Engineers on February 25, 1955, and on behalf of the Secretary of the Army on February 28, 1955. The State owns the 1-95 Bridge and its fender system and is responsible for their maintenance.

Conrail owns, operates and maintains the Railroad Bridge, which spans the Housa-tonic River and is located about 50 yards north of the 1-95 Bridge. The Railroad Bridge is a bascule type bridge consisting of two parallel leaves. The end of the leaves touching on the west side of the river are fixed so that the east side of the leaves raise when the Bridge is placed in an elevated position. It is necessary for the Railroad Bridge to elevate its leaves for tugs and barges to proceed upriver north of that Bridge.

Approximately 525 to 535 yards south of the 1-95 Bridge is the Devon Highway Bridge (“Highway Bridge”). The Highway Bridge is a bascule type bridge which also spans the Housatonic River. When proceeding northbound on the Housatonic River, a vessel must pass through the draw of the Highway Bridge in order to make its approach up the river to the 1-95 Bridge, thence to proceed through the draw of the Railroad Bridge.

At about 8:00 A.M. on July 31, 1978, the Tug with the Barge in push tow ahead arrived at Buoy # 1 at the mouth of the Housatonic River on Long Island Sound. The captain was William E. Clifford, an experienced and licensed master and navigator of tugs, who had towed barges on about 100 occasions prior to the accident in this case, including 50 or more trips up the Housatonic River, of which approximately 12 trips were with the Barge (Sea Horse I) in tow. The mate of the Tug on the present voyage was Bruce Allen, also well experienced in freight towing. At all times in question Clifford acted as pilot and Allen as lookout and both were in the wheelhouse of the Tug. The tow arrangement was one whereby the bow of the Tug was fitted into the stern of the Barge, which had been notched for that purpose, and the Barge and Tug were held together by cables tightened by winches. The total overall length of the Barge (290 + feet) and Tug (100 + feet) was reduced about 20 feet by the depth of the Barge’s notch, into which the bow of the Tug fitted.

Upon arriving at Buoy # 1 Clifford communicated by VHF radio channel 13 with the drawbridge operators of the Highway Bridge and the Railroad Bridge, respectively, advising them that the Tug and Barge would be at their bridges in about an hour. Each bridge tender responded that he would be ready.

At about 8:50 A.M. the flotilla consisting of the Barge and Tug arrived near Buoy # 23, just south of the Highway Bridge. Clifford first advised the Highway Bridge operator by VHF radio that he was now making his approach and was told that that drawbridge operator would open the Highway Bridge, which he did. Immediately after talking with the Highway Bridge operator, Captain Clifford contacted the Railroad Bridge operator, informed him of the flotilla’s location, and was advised that the Railroad Bridge would be “going up,” i.e., opening so that the flotilla could pass through. Then, at about 9:05 A.M. or 9:10 A.M. Clifford, as he was entering the draw of the Highway Bridge, again communicated by his VHF radio, channel 13, with Robert Giannotti, the drawbridge operator of the Railroad Bridge, who had seen the flotilla and the Highway Bridge being raised, and had overheard the conversation between Clifford and the drawbridge operator of the Highway Bridge. Clifford advised Giannotti that he was making his “final approach.” Giannotti again replied that he would be “going up.”

At both times when Giannotti assured Clifford that the Railroad Bridge would be open when the Tug and Barge reached it, Giannotti had not yet obtained the authority to open it. To obtain that permission he first had to telephone the Railroad’s nearest tower operator, Edward Mattler, located some 1,500 yards away on the line. Mattler, in turn, had to obtain telephone permission from a railroad train dispatcher, located in New York. Since the opening of the Railroad Bridge must be coordinated with the passage of trains across the bridge and since the New York train dispatcher sometimes was busy handling other train scheduling instructions, clearance to open the Railroad Bridge might sometimes be delayed indefinitely.

When the Tug and Barge were entering the Highway Bridge draw, Giannotti did not radio Clifford that permission had not yet been obtained to open the Railroad Bridge but instead indicated that, there was no such problem by assuring Clifford that the Railroad Bridge would be opened. After carefully observing Giannotti I find myself unable to credit his testimony that he simply told Clifford in response to his radioed request for an opening that he (Gian-notti) “would see what he could do.” I am satisfied that he led Clifford to believe that the Railroad Bridge would be open when the Tug and Barge got to it. Giannotti’s testimony on this issue conflicts with that of Clifford and Allen, the captain and mate, respectively, of the Tug, which I credit. Since a train was scheduled to cross the Railroad Bridge at 9:07 A.M., and did pass over that bridge at 9:11 A.M., and the next train was not scheduled to pass until 9:29 A.M., Giannotti may have believed that permission to open the Railroad Bridge would be obtained before the Tug reached it, which would be at approximately 9:20 A.M. However, such permission was not obtained by him until 9:30 A.M.

In the meantime, believing that the Railroad Bridge would be opened when he reached it, Clifford did not stop at the Highway Bridge and tie up to it, which he would have done if he had been advised that Giannotti had not yet obtained permission to open the Railroad Bridge. Instead the flotilla passed through the opened Highway Bridge draw northward toward the Railroad Bridge, some 575 to 585 yards away. As they passed through the Highway Bridge, Clifford and Allen found that their view of the draw leaves of the Railroad Bridge was partially obstructed by the Highway Bridge and the stanchions and fenders of the 1-95 Bridge, so that they could not at that point determine whether the leaves were being raised. Posting of a lookout on the bow of the barge would not have improved visibility since the barge’s bow was only about 9 feet above water level and more likely to have its line of sight blocked by the fenders than that of the pilot house which was 25 feet above water level. Visibility was also hampered by the fact that as the Housatonic goes northward from the Highway Bridge it turns about 30° in a dogleg to the left at a point about halfway to the Railroad Bridge. Although visibility is better from the center of the top of the Highway Bridge, which is about 35-40 feet above the water at flood tide, the Tug’s wheelhouse, where Clifford and Allen were located, was only 25 feet above the water, or approximately 10-15 feet lower than the top of that bridge.

As the flotilla passed through the Highway Bridge toward the Railroad Bridge the Tug proceeded at dead low speed (less than 1 knot per hour) with additional speed of approximately 1 knot from the flood tide flowing upriver, giving the flotilla a land speed of less than 2 knots per hour.

When the flotilla reached a point about one-third of the distance from the Highway Bridge to the Railroad Bridge, Clifford and Allen were able to see for the first time that the Railroad Bridge had not been opened. Clifford immediately radioed Gi-annotti asking him to open the bridge. Gi-annotti replied for the first time that a call had been made to New York for permission to open the bridge and that he could not open the bridge until -permission was received. Clifford then told Giannotti that he should open the bridge or else the barge might hit it. At the same time Captain Clifford immediately stopped the engines of the boat. The flotilla began to slow down, but continued to drift upriver for approximately 5 minutes. Clifford next put the Tug’s engines at full astern, which caused the Tug to move toward its port side and the bow of the barge to veer to the right. He followed with a “back and fill” maneuver, alternately putting the engine speed forward and in reverse in an effort to straighten out and slow down the barge. The barge, however, continued to veer slowly to the right and struck the 1-95 fendering system at a point between the 1-95 Bridge and the Railroad Bridge, causing damage to that system. The barge then was backed out and halted with its port side by the opposite fender on the west side of the river and with its bow under the Railroad Bridge. There a deck hand put out a line, which held the flotilla in position until the Railroad Bridge was finally opened, which did not occur until 9:30 A.M. The flotilla then passed through the draw and the bridge was closed at 9:38 A.M.

The action taken by Captain Clifford upon finding that the Railroad Bridge was not open and would not be opened for an indefinite period of time represented prudent seamanship under the circumstances with which he was faced. Until he saw that the Railroad Bridge was not opened or being opened he was entitled to rely on that bridge operator’s statement made a few minutes earlier that he was opening up the bridge. At the point where Clifford first discovered that the bridge was closed, he was justified in stopping the Tug’s engines and waiting for several minutes before commencing the back and fill procedure, which could be attempted more safely between the fenders of the 1-95 Bridge than in the open stretch of the river since the fenders could be used to check the right swing of the bow of the barge that would be caused by backing the tug full astern. He could not safely attempt to anchor the Tug and turn the flotilla around. Until the flotilla was slowed down a dropped anchor might tear a hole in the bottom of the barge. An anchor might also foul underwater cables on the bottom. The flood tide also might have swept the flotilla up against the 1-95 Bridge or might have run it aground. The channel was only 450 feet wide and the flotilla approximately 390-400 feet long, in addition to which the anchor line could add another 80 feet to 90 feet to the length. The depth* of the water west of the channel varied from 5 feet to 12 feet at mean low tide, although under the conditions that existed at the time of the accident, the depths would have ranged from 10 feet to 17 or more feet. The barge, on the other hand, drew 16-17 feet and the Tug 15 feet. On the issue of the prudency of Capt. Clifford’s maneuver under the circumstances I credit the expert testimony of Capt. Jim M. Jenkins and reject that of Capt. Richard H. Riley, whose only experience piloting on that stretch of the Housatonic River took place 20 years ago.

CONCLUSIONS

The accident in which the Barge struck the fendering system of the 1-95 Bridge was caused solely by Conrail’s negligence in not opening the Railroad Bridge in time for the flotilla to pass through that bridge after Capt. Clifford signalled by radio that his flotilla wished to pass and the bridge operator represented to Capt. Clifford that the Railroad Bridge would be timely opened for passage.

Conrail owed a duty, upon being requested for an opening, either to advise the captain of-the flotilla that it could not assure that the bridge could be opened in time for prompt passage as requested or to open the bridge as requested. Title 33 U.S.C. §§ 494, 499, 512; Nassau County Bridge Auth. v. Tug Dorothy McAllister, 207 F.Supp. 167, 170-71 (E.D.N.Y.1962), aff'd, 315 F.2d 631 (2d Cir.1963); Fla. East Coast Ry. Co. v. Revilo Corp., 637 F.2d 1060, 1064 (5th Cir.1981). The failure of the Railroad Bridge operator to so advise the Tug captain or to open that bridge on time as he had represented that he would do violated Conrail’s duty. Indeed, his response to Capt. Clifford’s request amounted to an invitation to the flotilla to proceed and entitled Clifford reasonably to believe that the Railroad Bridge would be promptly opened for the flotilla’s passage. Pennsylvania Railroad Co. v. S.S. Marie Leonhardt, 202 F.Supp. 368, 378 (E.D.Pa.1962), aff'd, 320 F.2d 262 (3d Cir.1963); Clement v. Metropolitan West Side El. Ry. Co., 123 F. 271, 273 (7th Cir.1903). If the Railroad Bridge operator had opened that bridge as he was obligated to do under the circumstances the flotilla would have passed through the bridge without accident.

There was no contributory fault or negligence on the part of the Tug and third-party plaintiffs. The Tug followed the correct procedure in making a timely request for opening of the Railroad Bridge. Capt. Clifford reasonably relied on the bridge operator’s statement that the bridge would be opened. He was not negligent in failing to learn at an earlier time that the bridge would not be timely opened. Nor was he negligent in not posting a lookout at the barge’s bow since doing so would not improve line-of-sight visibility to the Railroad Bridge over that from the pilot house. See The Mamei, 152 F.2d 924, 929 (3d Cir.1945), cert. denied, 328 U.S. 836, 66 S.Ct. 981, 90 L.Ed. 1611 (1946). When he first saw that the bridge was closed and learned that it would not be opened in time for the flotilla to pass without incident he took all reasonable precautions and exercised prudent seamanship to avoid a collision but he was unable to do so only because of the bridge operator’s negligence in failing to timely advise him that the bridge would not be opened in time for the flotilla to pass as orally scheduled.

Judgment shall be entered in favor of the third-party plaintiffs against Conrail on their claim that Conrail is liable for damages sustained by them as a result of the allision.

Unless the issue of damages is disposed of by settlement with Conrail the issue will be tried on October 22, 1984. The parties are requested to advise the court on or before October 10, 1984, whether trial of the damages issue will be necessary.

It is so ordered.

       Of the United States Court of Appeals for the Second Circuit, sitting by designation.

      . The case for holding Conrail liable is stronger in view of Conrail's breach of its statutory duty to open the bridge in a timely manner. See 33 C.F.R. § 117.125(b). This breach gives rise to a presumption that Conrail’s fault was ‘‘at least a contributory cause of the disaster" and shifts to Conrail the burden of proving that the breach "could not have been” a cause of the accident. The Pennsylvania, 86 U.S. (19 Wall.) 125, 136, 22 L.Ed. 148 (1874). Although Conrail did not rebut this presumption, I find no need to rely on the Pennsylvania rule in reaching my decision in the case since without the rule the evidence establishes that the allision was caused solely by its negligence.


author: TOM S. LEE, District Judge.

text:
    Don L. PRICE, Administrator of the Estate of Lee Allan Price Deceased, Plaintiff, v. LITTON SYSTEMS, INC. and International Telephone and Telegraph Corporation, Defendants. Yusun DONALDSON, Administratrix of the Estate of Richard Doyle Donaldson, Deceased, Plaintiff, v. LITTON SYSTEMS, INC. and International Telephone and Telegraph Corporation, Defendants.
    Civ. A. Nos. J84-0022(L), J84-0023(L).
    United States District Court, S.D. Mississippi, Jackson Division.
    Nov. 21, 1984.
    Wayne E. Ferrell, Jr., Jackson, Miss., Donald C. McCabe, Nomberg & McCabe, Daleville, Ala., for plaintiff.
    Christopher A. Shapley, Brunini, Grant-ham, Grower & Hewes, Jackson, Miss., for Litton.
    John Roach, Jackson, Miss., and Jack Hall, Birmingham, Ala., for ITT.
   MEMORANDUM OPINION

TOM S. LEE, District Judge.

This cause is before the court on motions for summary judgment filed by the defendants, Litton Systems, Inc. and International Telephone and Telegraph Corporation. These two cases, consolidated by order of this court dated October 9, 1984, have been brought to recover damages for the deaths of Don L. Price and Richard Doyle Donaldson, allegedly caused by defective night vision goggles worn by the plaintiffs’ decedents during a night helicopter flight training exercise at Fort Rucker, Alabama, on July 14, 1978. The defendants, manufacturers of night vision goggles, have filed their motions for summary judgment primarily contending that plaintiffs’ right to bring these suits expired under the two year statute of limitations provisions of Alabama’s Wrongful Death Act. Ala.Code § 6-5-410 (1975).

Since this is a diversity action, this court is Erie-bound to apply the substantive law of Mississippi, which includes Mississippi’s conflict of laws rules. Klaxon Comp. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). The parties are in agreement that the controlling conflict of laws case in tort actions in Mississippi is Mitchell v. Craft, 211 So.2d 509 (Miss.1968). In that case the Mississippi Supreme Court, quoting the Restatement (Second) Conflict of Laws § 175, “Right of Action for Death” stated:

Ordinarily, the local law of the state where the injury occurred will determine the rights and liabilities of the parties, ‘unless with respect to the particular issue, some other state has a more significant relationship to the occurrence and the parties, in which event the local law of the other state will be applied.’ 211 So.2d at 516.

The court also adopted § 145 of the Restatement (Second) Conflict of Laws, which sets forth the following four factors to be considered in determining which state had the most significant relationship with the case:

(A) the place where the injury occurred;
(B) the place where the conduct causing the injury occurred;
(C) the domicile, residence, nationality, place of incorporation and place of business of the parties; and
(D) the place where the relationship, if any, between the parties is centered.

Defendants contend that no state has a more significant relationship than Alabama and that, consequently, Alabama law must apply. The plaintiffs allege that they are residents of Iowa and Texas, that the products in question were manufactured either in California or Virginia, that these products were delivered to the Army in California, and that the contract for the sale of the products was entered into in New Jersey. For these reasons, the plaintiffs contend that other states have a more significant interest and that Alabama law, therefore, is not applicable. This position is without merit and is not supported by the recent Fifth Circuit decision in Davis v. National Gypsum Company, 743 F.2d 1132 (5th Cir.1984).

In Davis, the plaintiff’s decedent, a soldier in the Army stationed in Fort Carson, Colorado, was killed by shrapnel fragments from a mortar explosion. The trial court held that, under Mississippi conflict of laws rules, Mississippi courts would apply the law of the place of the injury, in that case Colorado, unless another state has a more substantial relationship to the action. The Fifth Circuit affirmed the holding of the trial court that the substantive law of Colorado, the place of the injury, would apply.

It is clear that no state has a more significant relationship to this case than does the State of Alabama, the place of the injury, and, therefore, that state’s substantive law will be applied. Accordingly, Alabama’s two year statute of limitations for wrongful death actions will also apply if it is substantive law rather than procedural.

Generally, Mississippi follows the traditional rule that a statute of limitations is procedural for purposes of choice of law, and the statute of limitations of the forum state applies to a cause of action arising under the laws of another jurisdiction. An exception to this general rule has been recognized where application of the statute of limitations of the other state would not only bar the remedy but also extinguish the legal right of action. Hamilton v. Cooper, 1 Miss. 542 (1832). This exception is most often seen in cases where the limitation is “built in” or “in the same enactment” as the statute which creates the right to bring the action. Bethlehem Steel Co. v. Payne, 183 So.2d 912 (Miss.1966); Steele v. G.D. Searle and Company, 428 F.Supp. 646 (S.D.Miss.1977); See also Davis v. National Gypsum Co., 743 F.2d 1132 (5th Cir.1984).

The limitation period included in the Alabama wrongful death statute question has been consistently interpreted as being the substantive law of Alabama. McMickens v. Waldrop, 406 So.2d 867 (Ala.1981); Downtown Nursing Home, Inc. v. Pool, 375 So.2d 465 (Ala.1979); and Tomlin v. Boeing Co., 650 F.2d 1065 (9th Cir.1981). In Downtown Nursing Home, Inc., the Alabama Supreme Court, in construing the statute, stated: “The statute requires that the action must be brought within two years after the death of the testator or intestate. This two year period is part of the substantive action and is not to be treated as a statute of limitation.” 375 So.2d at 466. Because Alabama courts have also held that actions for wrongful death can only arise and be processed under the wrongful death statute, the plaintiffs claims based on strict liability and breach of expressed or implied warranties are also barred. See Geohagan v. General Motors Corp., 291 Ala. 167, 279 So.2d 436, 440 (1973).

For the reasons stated hereinabove, it is the court’s opinion that the plaintiffs are barred from bringing these actions by the two year limitation period found in the Alabama Wrongful Death Act and that the defendants’ motions for summary judgment should be granted. A judgment shall be submitted by the parties in accordance with the local rules.


text:
    Ethel LEVY, Plaintiff, v. FEDERATED DEPARTMENT STORES and Howard Goldfeder, Chairman, President and Chief Executive Officer, and, Adrian Arpel, Inc., and Adrian Newman, It’s President, and Seligman & Latz, Inc., and Richard Hart, It’s President, and Liberty Mutual Insurance Corporation and Melvin B. Bradshaw, Chairman of the Board, and Department of Professional Regulation, An Agency of the State of Florida and Joseph W. Lawrence, II, Deputy General Counsel, and Member of the Florida Bar, Defendants.
    No. 84-2507-CIV-KING.
    United States District Court, S.D. Florida, Miami Division.
    Dec. 3, 1984.

      Ethel Levy, pro se.
    Edward L. Magill, Magill, Reid & Lewis, P.A., Miami, Fla., for defendants Federated and Howard Goldfeder.
    Larry L. Cook, Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, Fla., for defendant Liberty Mut. Ins. Co.
   ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS AND DISMISSING ACTION AS FRIVOLOUS

JAMES LAWRENCE KING, Chief Judge.

This cause arises before the Court upon its sua sponte review of the record.

On October 23, 1984, the above styled action was inadvertently allowed to commence in forma pauperis. Plaintiff’s complaint was docketed and service of process issued without prepayment of any fees and costs, despite the fact that this Court had not ruled on plaintiff’s motion to proceed in forma pauperis which was also filed on October 23rd. The record currently reflects that answers have been filed and the motion to proceed in forma pauperis is still pending before this Court.

Under 28 U.S.C. § 1915(a) a district court is allowed to authorize the commencement of a civil action without prepayment of fees or costs or the giving of security therefor, if the potential plaintiff has filed an affidavit that he is unable to pay such costs or give such security. As the Court in Watson v. Ault, 525 F.2d 886, 891 (5th Cir.1976) explains, “Under subsection (a), the commencement or filing of the suit depends solely on whether the affiant is economically eligible. The only determination to be made by the Court under § 1915(a), therefore, is whether the statements in the affidavit satisfy the requirements of poverty.”

At the outset, this Court notes that had it been given the opportunity to rule on the motion to proceed in forma pauperis prior to the filing of plaintiff’s complaint, which is the procedure contemplated under § 1915(a), it would have denied such a request as plaintiff’s affidavit is facially insufficient to demonstrate economic justification for in forma pauperis status. It bears emphasizing that 28 U.S.C. § 1915 creates no absolute right to proceed in civil actions without payment of costs. Indeed, to the contrary, the statute conveys only a privilege to proceed to those litigants unable to pay costs without undue hardship. Startti v. United States, 415 F.2d 1115 (5th Cir.1969). Moreover, while the privilege of proceeding in forma pau-peris does not require a litigant to demonstrate absolute destitution, it is also clear that “something more than mere statement and an affidavit that a man is ‘poor’ should be required before a claimant is allowed to proceed in forma pauperis.” Evensky v. Wright, 45 F.R.D. 506, 507-508 (N.D.Miss.1968).

The affidavit and supporting statement filed by plaintiff on October 23, 1984 states that she is an unemployed senior citizen. However, the affidavit goes on to state that during the past twelve months plaintiff has received other forms of income, the sources and amounts of which she does not specify. In addition, the affidavit also reflects that plaintiff owns cash or checking or savings accounts in the amount of $12,000 and other valuable property, which she again neglects to specify, in the amount of $30,000. While there are admittedly no set formulas for making the determination that the requisite in forma pauperis status is present, this Court is nevertheless of the view that there is something incongruous in an in forma pauperis application by an individual with the obvious financial resources of the plaintiff herein. Accordingly, it is this Court’s finding that plaintiff's motion to proceed in forma pauperis should have been and is hereby denied as plaintiff is well able to finance the costs of her litigation without any apparent undue hardship.

At this point the Court notes that, as it was precluded from making a proper and timely determination of plaintiff’s economic eligibility under § 1915(a), it is still faced with a cause of action which was commenced and allowed to proceed in for-ma pauperis. Normally, once a suit has been properly accepted for docketing as an in forma pauperis action, the district court is allowed a measure of control over the suit under § 1915(d) which provides for dismissal of such a suit where the Court is satisfied it is frivolous or malicious. Watson v. Ault, 525 F.2d at 891. As plaintiff's suit was indeed accepted for docketing as an in forma pauperis action, albeit improperly, this Court finds it appropriate to now proceed to the question presented under § 1915(d) of whether plaintiff’s action is frivolous or malicious.

Plaintiff’s complaint alleges claims based on negligence/res ipsa loquitur in Count I; continuing conspiracies against plaintiff’s rights as a citizen under 18 U.S.C. § 51, 241, 242 and 1503 in Count II; and violations of the Civil Rights Acts in Count III. In addition, paragraph 3 of the complaint alleges that the action also arises under the Rico Act Title 18, U.S.C. § 1961(1)(A), (B), (C) although there are no further allegations or references to the Act in either Counts I, II or III. The complaint prays for injunctive relief as well as compensatory damages in the amount of two million dollars and punitive damages in the amount of ten million dollars against each of the defendants. As far as this Court is able to determine, plaintiff’s claims originate from a beauty treatment which was allegedly negligently administered to her at a division of defendant FEDERATED DEPARTMENT STORES.

The words frivolous or malicious are not defined under § 1915(d) nor does the statute state how a district court is to become satisfied that an action is either frivolous or malicious such as to warrant its dismissal. However, courts have consistently interpreted § 1915(d) as a very broad grant of discretion and have dismissed actions as frivolous under § 1915 where “upon due examination of the tendered complaint, that pleading be determined to be devoid of merit, or to be inadequate to present a substantial claim worthy of consideration in litigation, or to be vulnerable to a motion to dismiss for failure to state a claim on which relief can be granted...” Rhodes v. Houston, 258 F.Supp 546, 579 (D.Neb.1966). In light of this very liberal interpretation, this Court has determined that plaintiff’s claims are frivolous and therefore subject to dismissal. Viewing the complaint herein in the light most favorable to the plaintiff, and with due regard for the fact that this plaintiff is pro se, this Court finds that Counts I, II and III of plaintiffs complaint cannot be construed as stating a claim for which relief can be granted.

For all the foregoing reasons, therefore, leave to proceed in forma pauperis with the above styled action is hereby denied, and the action is hereby dismissed as frivolous under § 1915(d).

The Court does now:

ORDER and ADJUDGE that plaintiffs motion to proceed in forma pauperis be, and it is, DENIED. The Court does further:

ORDER and ADJUDGE that the Complaint is hereby DISMISSED.


author: TEITELBAUM, Chief Judge.

text:
    ALLEGHENY LUDLUM STEEL CORPORATION, Plaintiff, v. PACIFIC GAS AND ELECTRIC COMPANY, Defendant.
    Civ. A. No. 84-1608.
    United States District Court, W.D. Pennsylvania.
    Dec. 27, 1984.

      David McClenahan, Kirkpatrick Lock-hart, Pittsburgh, Pa., for plaintiff.
    Leonard Fornella, Corcoran, Hardesty, Ewart, Whyte & Polito, Pittsburgh, Pa., for defendant.
   MEMORANDUM OPINION

TEITELBAUM, Chief Judge.

In this diversity action for breach of contract, defendant moves to dismiss for lack of personal jurisdiction or, in the alternative, to transfer to a more convenient forum. For the reasons set forth below, the action will be transferred.

Allegheny Ludlum Steel Corporation is a Pennsylvania corporation with its principal place of business in Pennsylvania. It manufactures stainless and specialty steel. Pacific Gas and Electric Company (PG & E) is a California corporation with its principal place of business in California. It provides electricity and gas to customers in northern and central California.

Allegheny Ludlum alleges the parties entered into a contract under which Allegheny Ludlum was to manufacture and sell and PG & E to buy stainless steel condenser tubing for use in the construction of units 16 and 20 of a power plant in California. Allegheny Ludlum alleges the contract called for delivery of the tubing for unit 20 to a company in Pennsylvania and for delivery of the tubing for unit 16 to the jobsite in California. Allegheny Ludlum further alleges the tubing for unit 20 was delivered but that PG & E wrongfully can-celled the contract for tubing for unit 16.

Subject matter jurisdiction is alleged on the basis of diversity of citizenship and amount in controversy. Personal jurisdiction over PG & E is asserted under Pennsylvania’s long-arm statute. PG & E moves to dismiss for lack of personal jurisdiction, to dismiss under the doctrine of forum non conveniens, or to transfer to a more convenient forum.

Fed.R.Civ.P. 4(e) provides for service of process upon a party not an inhabitant of or found within the state, under the circumstances and in the manner prescribed in the statutes of the state in which the district court is held. Pennsylvania’s long-arm statute, 42 Pa.C.S.A. § 5301 et seq., provides for exercise of personal jurisdiction “to the fullest extent allowed under the Constitution of the United States.”

Federal courts sitting in diversity are bound by the highest state court’s interpretations of its own statutes, but are not bound by state judicial interpretations of the due process clause of the United States Constitution. Empire Abrasive Equipment Corp. v. H.H. Watson, Inc., 567 F.2d 554, 556 n. 1 (3d Cir.1977). Thus, the Court of Appeals for the Third Circuit has undertaken an independent assessment of the phrase “to the fullest extent allowed under the Constitution of the United States.” Id.

In determining whether an assertion of personal jurisdiction comports with due process, initially it must be determined whether the cause of action arises from defendant’s forum-related activities or whether the cause of action arises from defendant’s non-forum-related activities. See Reliance Steel Products Co. v. Watson, Ess, Marshall & Enggas, 675 F.2d 587, 588 (3d Cir.1982). If the cause of action arises from defendant’s forum-related activities, the defendant is subject to the so-called “special” or “transactional” jurisdiction if the defendant had sufficient contacts with the forum arising out of that transaction. Id. If the cause of action arises from defendant’s non-forum-related activities, the defendant is subject to the so-called “general” jurisdiction, if, in other respects, the defendant had continuous and substantial forum affiliations. Id.

The due process clause imposes two limitations on the exercise of specific jurisdiction. Empire Abrasive Equipment, 567 F.2d at 557. First, out of respect for values of federalism, the due process clause forbids a state from exercising its adjudicatory authority in a manner that encroaches upon the sovereignity of a sister state. Id. “A state must have some palpable interest — rationally connected with public policy — in adjudicating a dispute within its borders for jurisdiction to be lawfully acquired.” Id. Second, the due process clause “prevents a state of plaintiff’s choosing from coercing defense of a suit in a forum which, because of its remoteness from defendant’s residence and from witnesses and proof, would be fundamentally unfair.” Id.

Pennsylvania’s long-arm statute reflects this dichotomy between specific and general jurisdiction. Compagnie des Bauxites de Guinee v. L’Union, 723 F.2d 357, 362 (3d Cir.1983). A single forum-related contact is sufficient to give jurisdiction under 42 Pa.C.S.A. § 5322, but the cause of action must arise out of that contact. Id. 42 Pa.C.S.A. § 5301 provides for general jurisdiction over a corporation which does continuous and systematic business in the state, regardless of whether the event or transaction sued on took place in Pennsylvania. Id.

Defendant’s challenge to the court’s exercise of personal jurisdiction imposes on the plaintiff the burden of coming forward with facts, by affidavit or otherwise, in support of personal jurisdiction. Compagnie des Bauxites de Guinea v. Insurance Company of North America, 651 F.2d 877, 880 (3d Cir.1981), aff'd, 456 U.S. 694, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982).

General jurisdiction over PG & E

Allegheny Ludlum contends PG & E is subject to both general and specific jurisdiction. Allegheny Ludlum first contends PG & E maintains continuous and substantial business activities in Pennsylvania so that it is generally amenable to process in a lawsuit unrelated to these Pennsylvania activities. To support its assertion that PG & E maintains continuous and substantial business activities in Pennsylvania, Allegheny Ludlum relies on a list of more than 200 businesses with which PG & E has transacted business over the years and to which PG & E has directed payment in Pennsylvania.

In Helicopteros Nacionales de Colombia v. Hall, — U.S. -, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) the Supreme Court held that a non-resident defendant’s substantial purchases of goods and services in the forum did not establish continuous and systematic business activity for the exercise of general jurisdiction. In Helicópte-ros a wrongful death action had been brought against a Colombian defendant in Texas; the cause of action arose from the crash of defendant’s helicopter in Peru, but it was asserted that defendant’s other contacts with Texas made defendant generally subject to the jurisdiction of the Texas courts.

The defendant had the following contacts with Texas: defendant’s Chief Executive Officer attended a contract negotiation session in Texas; over a seven year period defendant purchased helicopters, spare parts and accessories for more than $4,000,000 from a Texas company; defendant sent prospective pilots to Texas for training and to ferry aircraft back to South America; defendant sent management and maintenance personnel to visit a Texas company to receive plant familiarization and for technical consultation; defendant received over $5,000,000 in payments drawn upon a Texas bank.

The court held defendant’s contacts with Texas were not continuous and systematic. With respect to the purchase of goods and services in Texas, the court held that “mere purchases, even if occurring at regular intervals, are not enough to warrant a State’s assertion of in personam jurisdiction over a nonresident corporation in a cause of action not related to those purchase transactions.” Helicopteros, — U.S. at -, 104 S.Ct. at 1874, 80 L.Ed.2d at 413.

Under Helicópteros Allegheny Ludlum has not shown that PG & E is subject to general jurisdiction.

Specific jurisdiction over PG & E

Allegheny Ludlum next contends this action arises from PG & E’s activities in Pennsylvania so that PG & E is subject to personal jurisdiction.

Neither the contract negotiations, nor the contract formation, nor the contract’s performance according to its terms, nor its termination occurred in Pennsylvania. Allegheny Ludlum maintained a sales office in California and solicited business in California. PG & E solicited a bid from Allegheny Ludlum by mailing a bid invitation to Allegheny Ludlum’s California sales office. Allegheny Ludlum responded by mailing a proposal to PG & E from Allegheny Ludlum’s Connecticut office. Thereafter, PG & E awarded two purchase orders to Allegheny Ludlum, mailing them to Allegheny Ludlum’s California and Connecticut offices.

The contract was with the Allegheny Ludlum division located in Connecticut. The contract documents were executed in California or Connecticut. The only state law referenced in the contract was California’s, and the contract did not state that the tubing was to be manufactured in Pennsylvania. All invoices, shipping documents, drawings and bills of lading were to be mailed to PG & E in California. Allegheny Ludlum’s invoices were sent to PG & E from Allegheny Ludlum’s Connecticut office and requested payment forwarded to Allegheny Ludlum’s California office.

All correspondence and communications with respect to the termination of the contract took place in California, or between California and Connecticut or between California and Oklahoma.

Nevertheless, Allegheny Ludlum has identified three PG & E contacts with Pennsylvania which it contends permit the exercise of specific jurisdiction. First, that

Allegheny Ludlum is the largest stainless and specialty steel company in the United States and its headquarters and principal manufacturing facilities have always been located in Pittsburgh. These facts are well known in the stainless steel industry and are certainly known by PG & E, which has had many prior dealings with Allegheny Ludlum.

Second, that the condenser tubes for unit 20 were delivered to a company in Pennsylvania which was constructing the condenser. Third, that PG & E employs five inspectors who are assigned the eastern half of the United States but reside in Pennsylvania.

In determining whether PG & E is subject to specific jurisdiction it is necessary to first consider the due process limitation derived from federalism. In Empire Abrasive Equipment, 567 F.2d 554, a Pennsylvania seller brought suit against a Rhode Island bank in Pennsylvania for the bank’s wrongful cancellation of a letter of credit. Because Pennsylvania was the corporate residence of the plaintiff beneficiary, and the letter of credit was issued in connection with the sale of goods by that Pennsylvania seller, the court found Pennsylvania had a sovereign interest in adjudicating the dispute. Here Pennsylvania is the corporate residence of Allegheny Ludlum and the contract was for tubing manufactured in Pennsylvania by Allegheny Ludlum. These contacts likewise establish Pennsylvania’s sovereign interest in adjudicating the dispute between Allegheny Ludlum and PG & E.

It is next necessary to consider the due process limitation derived from fundamental fairness. “At the outset it is clear that a straightforward rule which permits a court to assert jurisdiction over any nonresident defendant that purchases goods from a resident would be constitutionally unacceptable.” Strick Corp. v. A.J.F. Warehouse Distributors, Inc., 532 F.Supp. 951, 958 (E.D.Pa.1982). Thus, jurisdiction over PG & E can not be premised on the knowledge of the stainless steel industry, or of PG & E through its prior dealings with Allegheny Ludlum, that Allegheny Ludlum manufactures its tubing in Pennsylvania.

Stride identified four factors significant in gauging the extent to which a defendant may have been able reasonably to foresee that his breach of that contract would subject him to suit in the forum: (1) the character of the pre-contract negotiations; (2) the location of those negotiations; (3) the terms of the sales agreement; (4) the type of goods sold. Id. Whereas PG & E’s non-passive role in pre-contract negotiations and the sophisticated, high-priced industrial equipment purchased would suggest PG & E may have been able to reasonably foresee being haled into court in Pennsylvania, see Strick, 532 F.Supp. at 959; the location of the pre-contract negotiations in California and the terms of the contract suggest an unfairness in forcing PG & E to litigate in Pennsylvania. Id.

The second and third PG & E contacts identified by Allegheny Ludlum do not tip the scales in favor of Allegheny Ludlum. The fact that the condenser tubes for unit 20 were delivered to a company in Pennsylvania is of little relevance because the present action is for the alleged wrongful cancellation of the contract to supply condenser tubes for unit 16. That is, the delivery of the tubes for unit 20 to a Pennsylvania company is not a forum-related activity which gives rise to this cause of action.

Similarly, the fact that PG & E employs five inspectors who reside in Pennsylvania and work in a territory that includes Pennsylvania is not a forum-related activity which gives rise to this cause of action. Allegheny Ludlum has not suggested that the tubing for unit 16, or unit 20 for that matter, was inspected in Pennsylvania, or elsewhere, by, an inspector residing in Pennsylvania.

In Empire Abrasive Equipment, 567 F.2d at 558, the court concluded the issue of fairness could best be decided by reference to the expectations of the parties to the contract. The court looked at not only what was undertaken hut also. alternative courses of conduct which were rejected. Here Allegheny Ludlum chose to conduct activities outside of Pennsylvania. PG & E did nothing in Pennsylvania. PG & E in no way invoked the protection of Pennsylvania law.

Consideration of the factors enumerated in Strick and Empire Abrasive raises grave doubts as to the fairness of compelling PG & E to defend in Pennsylvania.

Transfer under 28 U.S.C. § 1404(a).

Having found that PG & E is not subject to general jurisdiction under Helicópteros and that the exercise of specific jurisdiction is likely constitutionally infirm, the Court is left with either dismissing the case or transferring it to the Northern District of California.

Transferring the case would certainly be more convenient for PG & E and the witnesses it would call on its behalf. On the other hand, Allegheny Ludlum will obviously be inconvenienced by a transfer. However, a dismissal would cause Allegheny Ludlum even greater inconvenience. See Omni Exploration, Inc. v. Graham Engineering Corp., 562 F.Supp. 449, 455 (E.D.Pa.1983).

Accordingly, the case will be transferred to the Northern District of California, at San Francisco, under 28 U.S.C. § 1404(a).

An appropriate order will be entered.


author: DITTER, District Judge.

text:
    Bernard KIRSHBAUM v. GOVERNMENT EMPLOYEES INSURANCE CO. v. OHIO CASUALTY INSURANCE COMPANY.
    Civ. A. No. 83-3121.
    United States District Court, E.D.Pennsylvania.
    Dec. 28, 1984.
    Jonathan D. Herbst, Philadelphia, Pa., for plaintiff.
    George J. Lavin, Philadelphia, Pa., William H. Kinkead, III, William H. Bradbury, III, Norristown, Pa., for Government Employees Ins. Co.

      Susan Warnock Thomas, Philadelphia, Pa., for Ohio Cas.
   MEMORANDUM AND ORDER

DITTER, District Judge.

In this declaratory judgment action, plaintiff seeks a judicial determination that he qualifies as an insured under the terms of an automobile liability policy issued to one Rita Korn by the defendant, Government Employees Insurance Company (GEI-CO). Allegedly, Miss Korn was injured while a passenger in her own car, while the car was being driven by plaintiff. She claims damages from him and he seeks the protection of her insurance. The crux of the case is whether an exclusion clause which by its terms precludes payment to an “insured” (here Miss Korn) is void as against public policy. Arguing that the provision is valid, GEICO asserts there is no duty to defend plaintiff because Miss Korn, cannot receive any of the policy’s proceeds. For the reasons that follow, and in the absence of Pennsylvania state court precedent, I find the provision void. In doing so, I have considered that all doubts as to legislative intent in enacting the No-fault Act should be resolved in favor of finding coverage. See Bills v. Nationwide Mutual Insurance Co., 317 Pa.Super. 188, 463 A.2d 1148 (1983).

The clause at the core of this dispute excludes recovery for injuries to “any insured or any member of the family of an insured residing in the same household as the insured.” In a long line of cases, Pennsylvania courts have upheld the validity of similar clauses. See Puller v. Puller, 380 Pa. 219, 110 A.2d 175 (1955); Paiano v. The Home Insurance Co., 253 Pa.Super. 519, 385 A.2d 460 (1978). On a prior occasion, I have followed this line of cases. Home Insurance Co. v. Monaco, 405 F.Supp. 321 (E.D.Pa.), aff'd, 544 F.2d 512 (1975). Plaintiff, however, argues that these cases have no precedential value because they were decided prior to enactment of the Pennsylvania No-fault Motor Vehicle Insurance Act. Defendant has not addressed this argument, but rather relies upon them without discussion of the effect of the No-fault Act. I find that enactment of the No-fault Act, and its underlying social policies, requires they be reassessed because “freedom to contract”, the justification for enforcement of the exclusion in the past, see Cornett v. Curd, 21 Pa.D. & C.3d 599 (1981), must give way to the legislature’s express intent to provide “uniformity as to the essential elements of the system of motor vehicle accident and insurance law to avoid confusion, complexity, uncertainty, and chaos_” 40 P.S. § 1009.102(a)(8).

The Pennsylvania No-fault Act has as its purpose establishment of “a statewide system of prompt and adequate basic loss benefits for motor vehicle accident victims.” 40 P.S. § 1009.102(b). In furtherance of this purpose the act established “a compulsory first party insurance system in which the victim is to be paid for economic loss directly by his own insurer or by the company insuring the owner of the vehicle.” Pennsylvania Assigned Claims Plan v. Insurance Commissioner, 54 Pa. Cmwlth. 93, 420 A.2d 25, 28 (1980). In this case, the victim is also the owner of the vehicle. Therefore, the victim’s insurer and the owner’s insurer are one and the same, GEICO. To give effect to the exclusion would be to insulate GEICO from liability for the victim’s injuries. This would frustrate both the Act’s intent to provide compensation for accident victims, see Swezey v. Home Indemnity Co., 571 F.Supp. 224, 225, 227 (D.Del.1983), and the intent that such compensation should be accomplished through a “compulsory first party insurance system.” See Greider v. Pennsylvania Assigned Claims Plan, 316 Pa.Super. 146, 462 A.2d 836 (1983) (noting that tort liability is abolished, subject to the exceptions contained in 40 P.S. § 1009.301, for injuries that take place within the Commonwealth).

Other states have reached a similar result. See DeWitt v. Young, 229 Kan. 474, 625 P.2d 478 (1981) (exclusion void but only as to statutorily mandated minimum coverage); Detroit Automobile Inter-Insurance Exchange v. VanSlyke, 82 Mich.App. 237, 266 N.W. 771 (1978) (exclusion void as to claims by third parties — indicating in dicta that exclusion is completely void); Neal v. Farmers Insurance Exchange, 93 Nev. 348, 566 P.2d 81 (Nev.1977) (exclusion void but only as to statutorily mandated minimum coverage); Stevens v. State Farm Mutual Automobile Insurance Co., 21 Ariz.App. 392, 519 P.2d 1157 (1974) (completely void as to third parties).

To the extent the above cases hold the exclusion is void only as to the statutorily mandated minimum coverage, I am inclined to agree with their underlying reasoning. However, in the case sub judice, there has been no allegation that the desired coverage exceeds the minimum required by law. Therefore, I need not reach that issue. As to those decisions which indicate the exclusion is void only as to injuries suffered by parties other than the owner of the vehicle, that is third parties, I must disagree.

The decisions which void the exclusion only as to third parties rest upon the assumption that it does not violate public policy for an owner to contract away his own right to recovery. However, this reasoning overlooks the flip side of the coin; namely to deny the owner recovery under the policy, is to deny coverage under the policy to the permissive user. It is this denial of coverage which runs afoul of the legislative purpose behind the No-fault Act, because it forces the parties to resort to the courts, and the tort system of recovery. Dissatisfaction with the high cost of the tort system was a major motivating force behind enactment of the No-fault Act. 40 P.S. § 1009.102(a).

For all the above reasons, I conclude the Pennsylvania Supreme Court, if presented with the issue, would find the inter-family exclusion clause void as repugnant to the legislative intent which prompted enactment of the Pennsylvania No-fault Motor Vehicle Insurance Act.

      . As of this writing the Pennsylvania No-fault Act has been repealed. 1984 Pa.Legis.Serv., Act 11, § 8. However, it remains applicable to the subject matter of this case.