text:
    Emil KELLNER and Natalie Kellner, Plaintiffs, v. The AETNA CASUALTY AND SURETY COMPANY, Defendants. Emil KELLNER and Natalie Kellner, Plaintiffs, v. ROYAL-INDEMNITY COMPANY, Third-Party Plaintiff, v. WHAMB LEASING INC. t/a Montgomery Sportswear, Inc. and Miss Cassie Fashions; Heim, George F., Jr.; United States Casualty Corp.; and Aetna Casualty & Surety Co., Third-Party.
    Civ. Nos. 80-0794, 81-0299.
    United States District Court, M.D. Pennsylvania, Civil Division.
    Aug. 29, 1984.

      Martin J. Meyer, Kingston, Pa., for plaintiffs.
    Clifford A. Rieders, Murphy, Mussina, Harris & Rieders, Williamsport, Pa., for third party defendants Whamb Leasing, Inc. T/A Montgomery Sportswear, Inc., Miss Cassie Fashions and George F. Heim, Jr.
    Cozen, Begier & O’Connor, David R. Strawbridge, Philadelphia, Pa., for Royal Indem. Co.
    Jeffrey B. Rettig, Harrisburg, Pa., for Aetna Cas. & Sur. Co.
    Timothy E. Foley, Bour, Gallager, & Foley, Scranton, Pa., for Royal Indem. Co. (defendant).
    Miller, Kistler & Campbell, Inc., Richard L. Campbell, State College, Pa., for U.S. Cas. Corp.
   MEMORANDUM AND ORDER

CONABOY, District Judge.

These actions, filed against Aetna Casualty & Surety Company (“Aetna”) and Royal Indemnity Company (“Royal”) on July 28, 1980 and March 4, 1981 respectively, seek recovery of insurance proceeds allegedly due under co-extensive policies. On July 6, 1981 the cases were joined for administrative purposes. This Court, in reliance on Pennsylvania case law as it existed at the time, granted summary judgment to Royal against the Kellners on May 14, 1982. 605 F.Supp. 322. In the wake of that decision, Aetna, now the only party to whom the Kellners could look for indemnification, appealed to the United States Court of Appeals for the Third Circuit. The Court of Appeals, with benefit of a case determined by the Pennsylvania Supreme Court subsequent to this Court’s decision in Kellner v. Royal, ordered the case remanded and consolidated with Kellner v. Aetna. The Court of Appeals further ordered that these cases be re-examined in light of potentially new precedent established by Giacobetti v. Insurance Placement Facility of Pa., 500 Pa. 447, 457 A.2d 853 (1983). We now consider cross-motions for summary judgment by the various parties. For the reasons set forth below, Plaintiff Kellners will prevail against Defendants Royal and Aetna. Also, Royal’s motion to dismiss a cross-claim for indemnification brought against it by Third-Party Defendant Whamb Leasing, Inc. is granted.

It is, of course, well settled that for a moving party to prevail on a motion for summary judgment, he must show (a) that there is no genuine issue as to any material fact, and (b) that he is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); See WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL SECTION 2712. Thus, the Court cannot try issues of fact on a Rule 56 motion, but only is empowered to determine whether there are issues to be tried. Janek v. Celebreeze, 336 F.2d 828 (3rd Cir.1964). Finally, in determining whether an issue of material fact does exist, all inferences must be drawn against the moving party. See 6 MOORE’S FEDERAL PRACTICE H 56.-04[2],

I. KELLNER VS. ROYAL

Prior to Giacobetti, it was clearly the law in Pennsylvania that the fraudulent or intentionally destructive act of an insured would bar recovery by any co-insured even if said co-insured was totally innocent of complicity in the matter. Indeed, this had been the law in Pennsylvania since Bowers Co. v. London Assurance Corp., 90 Pa.Super. 121 (1926). This case of ancient lineage was controlling for some six decades.

The subject of insurance in Bowers was an automobile under a bailment lease the terms of which required the purchaser/lessee to maintain insurance during the life of the lease against loss or damage by fire. The automobile was destroyed by fire, a fire subsequently determined to have been caused by the purchaser. When the insurance company refused payment to the seller he successfully brought suit. However, the Superior Court, perhaps sensitive to the possibility of collusion between co-insureds in such a situation, reversed and established the principle of barring recovery to all insureds when any co-insured was culpable. This principle survived until Giacobetti and doubtless deprived many innocent insureds of benefits which they had every reason to expect to recover. Not yet armed with Giacobetti, this Court had no recourse but to rule for Royal the first time it was confronted by this matter.

As we have already intimated, Giacobetti has changed insurance law in Pennsylvania. The subject of insurance in Giacobetti was a building which was a portion of the corpus of a trust settled by a Louis Manusov in 1954 to function as a continuous source of income to himself and several members of his family. In 1974 after the death of Louis Manusov, his nephew, Harry Kracoff, assumed control of the trust property with consent of the other beneficiaries due to his superior knowledge of the grocery business conducted thereon. Harry Kracoff procured the fire insurance policy which came to be the focus of Giacobetti. The insurance policy named Harry Kracoff and the other income beneficiaries of the Manusov Trust as co-insureds. The building and inventory therein were destroyed by fire in April of 1975. The Philadelphia Court of Common Pleas determined in October of 1978 that Harry Kracoff had arranged the arson of the building and denied recovery as to him and, in accord with Bowers, the other beneficiaries under the policy as well. After affirmance by the Superior Court, the Supreme Court of Pennsylvania agreed to hear an appeal.

The Supreme Court reversed and, while still denying recovery to Harry Kracoff and his heirs, ordered the insurance company to make pro rata payments to the innocent insureds. The Supreme Court stated in pertinent part:

“Absent evidence that the other beneficiaries assisted in or approved of Harry Kracoff's wrongful conduct, there is no basis for prohibiting recovery by the other beneficiaries.”

The implications of this statement by the Pennsylvania Supreme Court for Royal’s cause are negative and obvious. Just as Harry Kracoff’s co-insureds were innocent and, hence, allowed to recover, so, too, are George F. Heim, Jr.’s co-insureds innocent. How, then, should the Kellners be denied the insurance proceeds at issue in this case?

In its brief Royal cites several aspects of its relationship to the Kellners which, Royal urges, differentiate this situation from that in Giacobetti. Royal first makes much of the fact that the interests of the various Manusov beneficiaries in the trust property in Giacobetti were several while the interests of Heim (equitable title) and the Kellners (legal title) were joint. We see no magic in this distinction. Nowhere in the Giacobetti decision did the Supreme Court even infer that it was allowing the innocent co-insureds to recover on the policy for the reason that their interest was several and, hence, easily severable from that of the culpable party. Rather, the Supreme Court seemed intent on preventing the culpable party from profiting by his own wrong while avoiding the punishment of innocent parties. To reiterate, there is no indication that the Supreme Court considered the joint/several dichotomy crucial or even a factor in its decision. This Court, likewise, is unimpressed by its import. Even if the interests of Heim and the Kellners were joint in the technical sense, in reality their interests were disparate, perhaps even adverse. The relationship between the Kellners and Heim was an arms-length buyer/seller scenario with the Kellners reserving the right to repossess the property should Heim default in the schedule of payments. To characterize their relationship as joint is legally correct but factually misleading. The public policy that is given effect by the rule in Bowers is the prevention of unjust enrichment of a fraudulent insured due to indemnification of a co-insured whose interests are closely related. This is decidedly not the type of relationship which exists between the Kellners and George Heim.

Another argument relied upon by Royal is that the conspicuous absence of reference to Bowers or its progeny in the Giacobetti opinion indicates that the Supreme Court did not intend to overrule Bowers and that Giacobetti is to be narrowly construed on its precise facts. We draw another inference and conclude that if the Supreme Court did not intend broad application of the principle espoused in Giacobetti it would have made an unequivocal statement to that effect.

Finally, on page seven (7) of the brief submitted to this Court by Royal on November 4, 1983, this statement concerning Giacobetti is made: “The only principle upon which the Court relied was that a trustee is not considered an agent of the beneficiary.” Apart from the fact that the use of the word “only” makes this statement inaccurate, we fail to see its significance. Would Royal have this Court decide that because the Kellner/Heim contract allocated the task of procuring insurance to Heim that he had become the Kellners’ agent? The logical next step would be to find that under the principle of respondeat superior the Kellners would be vicariously liable for Heim’s acts and, thus, precluded from recovering on the policy issued by Royal. However, a close examination of the facts of Giacobetti reveals that Harry Kracoff, the culpable party therein, had been entrusted with far more responsibility by his co-trustees than the mere procurement of insurance. Yet, in the words of the Supreme Court, “... appellee has failed to establish that Harry Kracoff became the agent of any of the other beneficiaries for all purposes ” (emphasis ours). Giacobetti, supra, 457 A.2d at 857. From this it becomes evident that the Pennsylvania Supreme Court is reluctant to deny recovery to innocent co-insureds on this “agency through acquiescence” theory. This Court shares that reluctance. Moreover, we note that the relationship between the Kellners and Heim was far more tenuous than that between Harry Kracoff and his co-beneficiaries. It would, therefore, be even less just to characterize George Heim as the agent of the Kellners.

In conclusion, we find none of Royal’s arguments compelling enough to alter our conviction that Giacobetti has profoundly changed the decisional law which must govern this matter. Accordingly, we grant summary judgment to Plaintiff Kellners as to Royal. This grant does not, of course, affect Royal’s right to seek contribution or indemnification from Aetna.

II. ROYAL VS. WHAMB LEASING, INC.

On June 12, 1981, Third-Party Plaintiff Royal filed a complaint alleging a right of indemnification against Whamb Leasing, Inc. (Whamb) for any sum it might be found to owe the Kellners. Whamb cross-claimed on the policy procured by George Heim which named it as an additional insured. Royal then moved for summary judgment asserting a defense of res judicata on grounds that the Court of Common Pleas of Lycoming County had already reached a decision on the merits in this matter, a decision which included the finding that Heim had procured said arson on behalf of Whamb. This, of course, precluded Whamb’s recovery on the aforementioned policy.

For the defense of res judicata to succeed four elements must be present: “(1) Identity in the thing sued upon; (2) identity of the cause of action; (3) identity of persons and parties to the action; and (4) identity of the quality or capacity of the parties suing or sued”. Stevenson v. Silverman, 417 Pa. 187, 190-91, 208 A.2d 786 (1965). Because each of these elements is present in the instant case, Royal’s position seems to be firmly grounded.

Whamb argues, however, that for a decision to be binding for res judicata purposes it must be final (emphasis ours). Whamb cites Bailey v. Christian, 733 F.2d 279 (3rd Cir.1984), for the proposition that a judgment is not final in any case where appeals have not been exhausted. This Court, however, does not read that case as an interpretation by the Court of Appeals that the law of Pennsylvania does not regard a decision on the merits by a Court of Common Pleas as “final”. Rather, a close reading of that case reveals that the linchpin of the decision was the Court of Appeal’s fear that the statute of limitations might extinguish a civil rights claim of the plaintiff and, so, ordered a stay in the federal proceedings.

The decision in Bailey, then, does not herald a revision of Pennsylvania law on the finality of judgments. That law, in the opinion of this Court remains consistent with this statement from Helmig v. Rockwell Manufacturing Co., 389 Pa. 21, 131 A.2d 622 (1957):

“Broadly stated, the rule of res judicata is that when a court of competent jurisdiction has determined a litigated case on the merits, the judgment entered, until reversed, is, forever and under all circumstances, final and conclusive as between the parties to the suit and their privies ...” (emphasis ours).

This statement on when a judgment is final for purposes of res judicata has since been highlighted in Bearoff v. Bearoff Bros., Inc., 458 Pa. 494, 498, 327 A.2d 72 (1974). This Court can only conclude that the judgment on the merits of any Pennsylvania Court of Common Pleas is final for purposes of res judicata until reversed.

Due to the foregoing analysis we find that Whamb’s cross-claim against Royal must fail under the principle of res judicata. Therefore, Royal’s motion for summary judgment as to Whamb is granted.

III. KELLNER VS. AETNA

On August 10, 1982 this Court granted Plaintiff Kellners’ motion for summary judgment against Defendant Aetna. It was undisputed that the Kellners had an insurable interest, had paid premiums to protect that interest and had submitted proper proof of loss. Aetna, therefore, was liable as a matter of law. The holding in Giacobetti has done nothing to diminish that liability. We hold today that summary judgment is granted the Kellners against Aetna. Mirroring part I of this decision, we note that Aetna is in no way hampered from seeking contribution or indemnification from Royal.

IV. DAMAGES

In a stipulation of counsel entered into on December 14, 1982 Royal and Aetna agreed that the Kellners were entitled to damages of $52,898.00. It was further stipulated that post-judgment interest would commence to run as of December 1, 1982 on said sum. This Court considers that stipulation to be binding and, as indicated in parts I and III of this decision, Royal and Aetna are jointly and severally liable to the Kellners in this amount. Plaintiff Kellners are now free to proceed against either Defendant for judgment in the amount stipulated.

ORDER

AND NOW, August 29, 1984, in view of the foregoing, IT IS ORDERED AS FOLLOWS:

1. Judgment in the amount of $52,-898.00 with interest from December 1, 1982 is hereby entered in favor of Emil Kellner and Natalie Kellner against the Aetna Casualty and Surety Company and the Royal Indemnity Company.

2. In the cross-claim of Whamb Leasing, Inc. t/a Montgomery Sportswear, Inc. and Miss Cassie Fashions, against the Royal Indemnity Company, judgment is hereby entered in favor of the Royal Indemnity Company.

      . The facts which underlie these actions are set out at length in the memorandum and order issued by this Court on May 14, 1982. We incorporate by reference pages two (2) through four (4) of that document.

      . The prospect of reversal in this case looks exceedingly dim since the Superior Court affirmed the judgment of the Lycoming County Court of Common Pleas which is the root of this dispute on August 10, 1984.


source: Caselaw Access Project

author: CONABOY, District Judge.

license: Public Domain

text:
    Emil KELLNER and Natalie Kellner, Plaintiffs, v. The AETNA CASUALTY AND SURETY COMPANY, Defendants. Emil KELLNER and Natalie Kellner, Plaintiffs, v. ROYAL INDEMNITY COMPANY, Third-Party Plaintiff, v. WHAMB LEASING INC. t/a Montgomery Sportswear, Inc. and Miss Cassie Fashions; Heim, George F., Jr.; United States Casualty Corp.; and Aetna Casualty & Surety Co., Third-Party Defendants.
    Civ. Nos. 80-0794, 81-0299.
    United States District Court, M.D. Pennsylvania, Civil Division.
    Nov. 14, 1984.

      Martin J. Meyer, Kingston, Pa., for plaintiffs.
    Clifford A. Rieders, Murphy, Mussina, Harris & Rieders, Williamsport, Pa., for third party defendants Whamb Leasing, Inc. t/a Montgomery Sportswear, Inc., Miss Cassie Fashions, George F. Heim, Jr.
    Timothy E. Foley, Bour, Gallager, & Foley, Scranton, Pa., Cozen, Begier & O’Con-nor, David R. Strawbridge, Philadelphia, Pa., for Royal Indemnity.
    Jeffrey B. Rettig, Harrisburg, Pa., for Aetna Casualty & Surety Co.
    Miller, Kistler & Campbell, Inc., Richard L. Campbell, State College, Pa., for United States Casualty Corp.
   MEMORANDUM AND ORDER

CONABOY, District Judge.

We consider here motions for reconsideration of this Court’s order of August 29, 1984, 605 F.Supp. 326, by Royal Indemnity Company (Royal) and Aetna Casualty and Surety Company (Aetna). Only Royal has filed a support brief. Royal and Aetna Casualty and Surety Company (Aetna) were made jointly and severally liable to the Plaintiffs in the amount of $52,898.00. Royal asserts that the Court has not addressed several affirmative defenses which should change the outcome of this case. Royal also asserts that since it was Royal who moved for summary judgment against the Plaintiffs, who never made a cross-motion for summary judgment in this matter, our grant of summary judgment to the Plaintiffs vis-a-vis Royal was inappropriate.

We address first Royal’s contention that our grant of summary judgment to the Plaintiffs was inappropriate. Actually, the grant of summary judgment to a non-moving party is a relatively frequent occurrence in federal courts. Witness the statement:

... the weight of authority is that summary judgment may be rendered in favor of the opposing party even though he has made no formal cross-motion under Rule 56.

Wright & Miller, Federal Practice and Procedure: Civil § 2720, pages 467-68.

This is in keeping with the objective of Rule 56 of the Federal Rules of Civil Procedure to expedite the disposition of cases and, somewhat more remotely, with the mandate of Rule 54(c) requiring the court to grant the relief to which a party is entitled “even if the party has not demanded such relief in his pleadings.” Teamsters Local Union No. 205 v. Carl Colteryahn Dairy, Inc., 436 F.Supp. 341 (W.D.Pa.1977). Thus, our grant of summary judgment to the Plaintiffs vis-a-vis Royal was procedurally proper. Moreover, since there is no material fact in dispute between Plaintiffs and Royal, summary judgment for Plaintiffs in this matter expedited what this Court considers the just disposition of this case in light of the decision in Giacobetti v. Insurance Placement Facility of Pennsylvania, 457 A.2d 853, 500 Pa. 447, 456 (1983).

Concerning the matter of Royal’s unaddressed affirmative defenses, it appears that two of them are no defense at all. The first, that the Kellners had no insurable interest in the premises which is the subject of this claim, is refuted by the facts. It is an elementary principle of insurance law that an insurable interest exists in any party who would be exposed to financial loss by the destruction of a certain property. 4 Appleman, Insurance Law and Practice, § 2123 at 40-41. Since Plaintiffs had reserved the right to repossess the property in question if George F. Heim reneged on his payment obligation, it is clear they would be exposed to financial loss should that property be destroyed. It is equally clear that they had an insurable interest in the property.

The second of Royal’s affirmative defenses, that there was no coverage under the binder issued to George F. Heim because he never paid a premium on said binder, is not in conformance with the law. The issuance of a binder evidences a complete, temporary, or preliminary contract of insurance effective from that time until issuance of the formal policy or until rejection of the risk. 12 A Appleman, Insurance Law and Practice, § 7227 at 149, Carideo v. Phoenix Assurance Company, 317 F.Supp. 607 (E.D.Pa.1970). Moreover, payment of premiums is not a necessary condition precedent to the validity of a binder. Carideo, supra at 611, citing Rossi v. Firemen’s Insurance Company, 310 Pa. 242, 165 A. 16 (1932). Therefore, since Royal neither issued an actual policy nor rejected the risk in this matter, their defense of insufficient consideration is ineffectual.

The last surviving affirmative defense of Royal, the contention that its coverage of the Heim/Kellner property was in the nature of excess coverage to be used only after the primary insurer, Aetna, had disbursed the limits of its policy to the Plaintiffs, requires more detailed analysis. It must be noted that Royal never actually issued an insurance policy on the building which burned. Any coverage they provided on that structure stems from the binder discussed previously herein in relation to Royal’s lack of consideration defense. Royal would have us determine that, since the binder was to be incorporated into an existing policy which covered the contents of the burned structure and the contents of another building in Montgomery County as well, its coverage was in the nature of “blanket” insurance and therefore excess to the more specific policy provided on the same site by Aetna. Royal then cites Pennsylvania cases which arguably hold that when two policies cover the same loss and one specifically covers the damaged property only while the other covers a variety of risks including the damaged property, the former policy is primary and the latter excess.

This Court cannot reach that conclusion in this case for several reasons. First, we are not willing to make the assumption that the binder actually issued by Royal would have ultimately become part of a “blanket” policy. Even if we were to make such an assumption, the fact remains that the binder issued by Royal is the document that controlled the extent of its liability in this situation. As noted earlier, binders are effective until supplanted by a formal policy or the company gives notice that it has rejected the risk. Since neither of these events occurred, we are-unwilling to discuss the nuances of a “policy” which never existed.

Thus, Royal’s binder to Heim/Wham must be compared to Aetna’s policy with the Kellners. These two documents are equally specific in that they refer only to the structure at 148-50 Main Street, Jersey Shore, Pennsylvania. It is primarily for this reason that we cannot say, as a matter of law, that the Aetna policy was primary and Royal’s excess or vice versa.

There are also factual distinctions between the instant case and those cited by Royal. First, in this case it is not the same party who secured both coverages. There were two distinct insurable interests in the property, the legal interest of the Kellners and the equitable interest of Wham/Heim. The cases Royal offers in support of its position all concern situations where one party took out different types of coverage on the same location. We think this an important factual distinction. Second, both the policy issued by Aetna and the policy which Royal claims would have been issued in extension of its binder contain “other insurance” clauses which assert the right to be considered as excess coverage. If this type of “boilerplate” is to be given effect what will be the recourse of an insured who takes out two equally specific policies with two separate carriers to cover the same property? If each can be considered excess neither would ever pay. One of the most widely respected commentators on insurance law has declared “... where one has conflicting excess clauses, they are mutually repugnant—in other words, they cannot be excess to each other since they are identical.” 8 A Appleman, Insurance Law and Practice, § 4909 at 399.

For the foregoing reasons we hold that Royal’s various unaddressed affirmative defenses are neither individually nor collectively persuasive enough to warrant changing our original judgment in this matter. We note that Royal’s right to seek proration before the Pennsylvania Insurance Commission of any sum it is forced to pay pursuant to this judgment is unaffected. Consequently, we issue the following.

ORDER

AND NOW, this 14th day of November, 1984, IT IS HEREBY ORDERED as follows:

1. Royal’s motion for reconsideration of judgment in this matter is denied.

2. Aetna’s motion for reconsideration in this matter is denied.

3. Royal’s motion for summary judgment against Aetna is denied.

      . Meigs V. I.N.A., 205 Pa. 378, 54 A. 1053 (1903); Blue Anchor Overall Co. v. Pennsylvania Lumbermen's Mutual Insurance Co., 385 Pa. 394, 123 A.2d 413 (1956) etc.

      . Since Aetna has not filed a memorandum in support of its motion and since the motion itself was untimely with respect to Local Rule 604, it is unnecessary to rationalize our denial of Aetna’s motion.


author: DALY, Chief Judge.

text:
    Ronald Raymond ADDVENSKY, Petitioner, v. Robert GUNNELL, Warden, F.C.I. Danbury, Connecticut, Respondent.
    Civ. No. B-83-73.
    United States District Court, D. Connecticut.
    July 11, 1983.

      M. Yvonne Gonzalez, Branford, Conn., for petitioner.
    Kurt F. Zimmermann, Asst. U.S. Atty., New Haven, Conn., for respondent.
   RULING ON PETITION FOR WRIT OF HABEAS CORPUS

DALY, Chief Judge.

Petitioner, Ronald A. Addvensky, was sentenced by United States District Judge George Carr, in the Middle District of Florida, to four years imprisonment, pursuant to 18 U.S.C. § 4205(b)(1), upon being convicted of transportation of forged securities. 18 U.S.C. § 2314. Petitioner is currently incarcerated at the F.C.I. in Dan-bury, Connecticut. Petitioner was afforded an initial parole hearing resulting in the Parole Commission finding an applicable guideline range of 36-48 months, based upon a salient factor score of seven (7) and an offense severity rating of “very high.” Upon petitioner’s appeal from this decision, the Regional Commissioner reduced the guideline range to 20-26 months, finding a lower offense severity rating of “high” to combine with the unchanged salient factor score of seven (7). The Regional Commissioner’s decision, affirmed by the National Appeal Board, was to continue petitioner to a presumptive parole date, after 26 months, of March 18, 1984.

Petitioner challenges this decision for three principal reasons. First, petitioner claims that the Parole Commission decision to establish a presumptive parole date at the top of the guidelines is unlawful and violative of his due process rights. Second, petitioner claims that this decision is further unlawful and violative of his due process rights in view of both Judge Carr’s remarks at sentencing and his comment on the Form AO 235 on which Judge Carr wrote, “[i]t is the intent and desire of this Court that the defendant be paroled upon service of one (1) year of the sentence.” Third, and more fundamentally, petitioner alleges that the Parole Commission, in violation of petitioner’s constitutional rights, arrived at a salient factor score by considering three prior convictions at which petitioner was not represented by counsel. In view of these claims, petitioner asks for a new parole hearing, at which the Commission cannot rely on these uncounseled convictions in computing the salient factor score. Petitioner’s papers, although not explicit on the point, can also be read to ask this Court to direct the Commission to follow the sentencing judge’s recommendation or to decide on the lower end of the guideline range, or to at least explain its decision on the resulting presumptive parole date, even if that date is not outside the guideline range.

The status of the case as it comes to this Court is that the Parole Commission considered petitioner as having four prior convictions for purposes of calculating his salient factor score. The first conviction, on March 3, 1972, was for receiving stolen property, for which petitioner was sentenced to 2 years probation. The second conviction, also on March 3, 1972, and resulting in a concurrent 2 year probation term, was for breaking and entering and for larceny. Although this “second conviction” was on two separate charges, the Parole Commission considers the charges as a single conviction as they arise from the same offense behavior. Petitioner does not challenge either his “first” or “second” conviction.

The “third” and “fourth” convictions are at the center of petitioner’s complaint. The “third” conviction resulted from an arrest on December 1, 1973 on charges of disorderly person and simple assault on a police officer. On December 20th of that year, petitioner was fined $50.00 on the disorderly person charge and was fined $100.00 on the simple assault charge. The New Jersey Court’s judgment orders demonstrate that petitioner pleaded guilty to the charge of disorderly person, see Supplemental Traverse, Exh. B, and pleaded not guilty to simple assault on a police officer, see id.., Exh. A. Petitioner alleges that these proceedings, a trial to the court on the simple assault charge, and the guilty plea on the disorderly person charge, “were conducted over protests of [petitioner that his retained counsel was not present.” Id., at 2. The judgment order of the simple assault charge affirmatively shows that petitioner was without counsel, id., Exh. A, while the judgment order on the disorderly person charge indicates neither the presence nor absence of counsel, id., Exh. B. There is no allegation that petitioner waived the right to counsel on either charge or that petitioner was not an indigent. The Court notes that these judgment orders indicate that both proceedings occurred on the same date, apparently before the same judge. On this basis, the Court finds that petitioner did not have the assistance of counsel during these December 20, 1973 proceedings, and petitioner did not waive the right to counsel.

The “fourth” conviction resulted from charges of simple assault and malicious damages. See Government’s Response to Order to Show Cause, Affidavit of Jack Schneider, at 4, ¶ 11; Supplemental Traverse, Exh. E. The judgment order relating to these two charges show that counsel was not present during the proceeding. Supplemental Traverse, Exh. E. Further, in relation to these charges, there is no dispute that petitioner was indigent and there is no allegation, let alone a demonstration by the government, that petitioner waived his right to counsel. Thus, the Court finds that the “fourth” conviction arising from the proceeding in Secaucus Municipal Court on October 31, 1979, resulting in petitioner being fined $100.00 with $50.00 suspended, was conducted without counsel and without petitioner waiving his right to the assistance of counsel.

It is undisputed that the offenses underlying petitioner’s “third” and “fourth” convictions were misdemeanors for which petitioner received only fines and no periods of incarceration. It is further uncontested that if either the “third” or “fourth” conviction, or both of them, cannot be counted toward item A of the salient factor score, petitioner will have two or three prior convictions and will therefore be entitled to one additional point on his salient factor score. See Government’s Response to Order to Show Cause, Exh. B, at 2. This would result in a total salient factor score of 8, which when combined with the “high” offense severity rating, would produce the applicable guideline range of 14-20 months. Thus, if petitioner is correct that uncounseled misdemeanor convictions that did not result in incarceration are invalid for the purpose of enhancing imprisonment under the parole guidelines, when considered as prior convictions for salient factor score computation, petitioner must be afforded a new hearing by the Commission.

The Parole Commission established petitioner’s salient factor score in accordance with its Rules and Procedures Manual. The applicable provision, section 2.20-07.-A.7, directs that convictions where the indigent defendant was both uncounseled and had not waived the right to counsel and where the offense was either a felony or a lesser offense for which incarceration resulted, are not to be counted in computing this score. It is agreed that the petitioner’s “third” and “fourth” convictions were lesser offenses for which incarceration was not imposed, and thus, there is no basis for concluding that the Commission acted contrary to their rules when including these convictions in their score computation. Instead, petitioner’s claim is that in following these guidelines and thereby including these convictions as prior convictions in Item A, the Commission deprived petitioner of rights guaranteed to him under the constitution.

The Supreme Court has ruled that, even absent a waiver, an uncounseled indigent defendant’s Sixth and Fourteenth Amendment rights to counsel are not violated when that defendant is tried for a non-felony offense for which the defendant is not actually incarcerated. Scott v. Illinois, 440 U.S. 367, 373-74, 99 S.Ct. 1158, 1161-62, 59 L.Ed.2d 383 (1979) (right to counsel requires only that “no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense”). Such convictions, even without counsel and a waiver of counsel, are, in and of themselves, valid convictions. Id.; see Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S.Ct. 2006, 2012, 32 L.Ed.2d 530 (1972). Petitioner argues that while his “third” and “fourth” convictions are valid under the rule announced in Scott v. Illinois to the extent that they did not result in incarceration, they are not valid for the purpose of enhancing imprisonment on his incarceration for a subsequent offense, and were so used when employed by the Parole Commission as prior convictions in computing petitioner’s salient factor score. The basis of petitioner’s position is the case of Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), where the court found it an unconstitutional practice to allow a misdemeanor conviction to be converted into a felony conviction with a prison term simply because of a prior misdemeanor conviction that was valid under Scott v. Illinois only because the indigent uncounseled defendant had not there been incarcerated.

Petitioner’s argument is not without significant force. Although Baldasar is a per curiam opinion, with the five Justices who joined it separating into three concurring opinions, courts have nevertheless drawn from it the proposition that convictions valid under Scott v. Illinois, precisely because no incarceration resulted, are invalid when used subsequently to deprive that convicted defendant of his or her liberty. See Schindler v. Clerk of Circuit Court, 551 F.Supp. 561 (W.D.Wis.1982) (citing concurring opinion of Marshall, J.); People v. Rocha, 650 P.2d 569, 570 (Colo.1982); Hollingsworth v. Alabama, 410 So.2d 133, 134 (Crim.App.Ala.1981). But see United States v. Robles-Sandoval, 637 F.2d 692, 693 n. 1 (9th Cir.1981). Petitioner forcefully argues that the parole guidelines are very important considerations as to the actual time spent incarcerated, and that the decrease in his salient factor score due to including these uncounseled convictions as prior convictions, places petitioner in a higher guideline range, thus enhancing incarceration on his present federal sentence specifically because these prior convictions complied with Scott v. Illinois.

It is important to note that a vital reason underlying the invalidity of convictions obtained without counsel is their inherent unreliability based on the resulting impeachment of the fact-finding process. Baldasar v. Illinois, 446 U.S. 222, 227-28, 100 S.Ct. 1585, 1587-88, 64 L.Ed.2d 169 (1980) (Marshall, J., concurring); Lewis v. United States, 445 U.S. 55, 67, 100 S.Ct. 915, 921, 63 L.Ed.2d 198 (1980); Id., at 72, 100 S.Ct. at 924 (Brennan, J., dissenting); Argersinger v. Hamlin, 407 U.S. 25, 31-36, 92 S.Ct. 2006, 2009-12, 32 L.Ed.2d 530 (1972); Loper v. Beto, 405 U.S. 473, 483-84, 92 S.Ct. 1014, 1019, 31 L.Ed.2d 374 (1972) (opinion of Stewart, J.); Gilday v. Scafati, 428 F.2d 1027, 1029 (1st Cir.1970). This unreliability continues to exist even in uncounseled non-felony convictions. Argersinger v. Hamlin, 407 U.S. 25, 34-37, 92 S.Ct. 2006, 2011-12, 32 L.Ed.2d 530 (1972). The decision by the Supreme Court in Scott v. Illinois that a conviction of an indigent uncounseled defendant who was not actually incarcerated is a valid conviction did not rest on the reliability of this type of conviction. Rather, the Scott decision that these convictions are valid relied upon the qualitative difference between actual incarceration as punishment and the imposition of criminal penalties that do not include incarceration. 440 U.S. 367, 373, 99 S.Ct. 1158, 1161, 59 L.Ed.2d 383 (1979). The question then is whether the Parole Commission can enhance petitioner’s incarceration by counting these convictions as prior convictions in computing the salient factor score, even though these convictions possess some large degree of unreliability and were valid solely because incarceration did not result.

The government argues that the Parole Commission is attempting to predict the parole risk that would attend the petitioner’s release by considering these convictions as prior convictions. However, at the same time, the government asserts that the Commission is concerned with the fact of conviction rather than the “reliability” of these convictions in making this risk assessment. Citing Lewis v. United States, the government proposes that, consequently, the Commission should be able to consider these convictions, clouded by unreliability, as prior convictions in reaching the salient factor score. It would seem that the convictions would have little or no relevance to predicting whether a person would be a good or bad parole risk if the assessor of that risk did not know that the conviction was reliable. Surely any meaningful correlation between a conviction, considered as a prior conviction, and parole risk must assume that the defendant was properly and reliably convicted, so that such a conviction is a trustworthy indicator of actual prior criminal activity by the defendant. In any event, the Court now merely notes the seeming inapplicability of Lewis v. United States to this case. The Lewis court found that Congress intended that 18 U.S.C.App. § 1202(a)(1) define a criminal offense when a convicted felon is in possession of a firearm even when the underlying felony conviction is invalid due to a denial of the defendant’s Sixth and Fourteenth Amendment rights to counsel. 445 U.S. 55, 65, 100 S.Ct. 915, 920, 63 L.Ed.2d 198 (1980). Thus, under Lewis, it is the fact of conviction on which Congress intended to base the possession offense, as long as that underlying conviction has not been vacated prior to possession of the firearm. 445 U.S. 55, 60, 63-65, 100 S.Ct. 915, 918, 919-20, 63 L.Ed.2d 198 (1980). The same cannot be said for the Parole Commission’s use of convictions as prior convictions in calculating a salient factor score. The Rules and Procedures Manual specifically excludes from Item A of the Salient Factor Score convictions invalid under Scott v. Illinois, see section 2.20-07, thus clearly demonstrating the absence of an intent to rely on the fact of conviction, and buttressing the notion that the reliability of such conviction is a prime consideration of the Parole Commission when including prior convictions in computing an inmate’s salient factor score.

Nevertheless, mindful of the admonition that Federal Courts should not decide constitutional questions unless absolutely necessary, and based on the present state of the record, the Court will not reach the constitutional question submitted on the use of Scott v. Illinois convictions, or the other due process issues raised by petitioner. Rather, this Court directs the Parole Commission, for the reasons set forth below, to give petitioner a new parole hearing within 30 days of this Ruling.

With regard to the “third” conviction, the Court is not convinced that upon a new hearing, these charges would be considered as a prior conviction for the purpose of computing the salient factor score. The Parole Commission’s Rules and Procedures Manual was recently revised by Amendment 83/3, a part of which may alter this case. Section 2.20-07.A.2, formerly entitled Minor Offenses and listing misdemeanors that should not be counted as prior convictions in computing the salient factor score, has been deleted by this amendment. In its place, the Parole Commission has substituted the following:

“A.2 Convictions
(a) Felony convictions are counted. Non-felony convictions are counted, except as listed under (b) and (c). Convictions for driving while intoxicated/while under the influence/while impaired are counted. Where it is established by the preponderance of evidence that the underlying offense behavior was more serious than the offense of conviction. Assess the conviction using the criteria applicable to the underlying offense behavior.
(b) Convictions for the following offenses are counted only if the sentence resulting was a commitment of more than thirty days (as defined in item B) or probation of one year or more (as defined in Item E), or if the record indicates that the offense was classified by the jurisdiction as a felony (regardless of sentence):
1. contempt of court;
2. disorderly conduct/disorderly person/breach of the peace/disturbing the peace;
3. driving without a licence (sic)/with a revoked or suspended license/with a false license;
4. false information to a police officer;
5. fish and game violations;
6. gambling;
7. loitering;
8. non-support;
9. prostitution;
10. resisting arrest;
11. trespassing.
(c) Convictions for certain minor offenses are not counted, regardless of sentence. These include:
1. hitchhiking;
2. local regulatory violations;
3. public intoxication/possession of alcohol by a minor/ possession of alcohol in an open container;
4. traffic violations (except as specifically listed);
5. vagrancy.”

Applying the new Convictions section to the petitioner’s “third” conviction, it is clear that under A.2(b)2 the Commission would not count petitioner’s disorderly person charge as a prior conviction.

With regard to the simple assault charge, the situation is a little different, but the Court feels that the Commission should have a chance to decide whether this is to be counted as a prior conviction for purposes of the salient factor score in light of this new amendment to the procedure manual. Specifically, the Court notes that the Commission has the discretion to analogize when considering situations not explicitly covered by the Procedural Manual to those that are covered when implementing the guideline structure. See Shahid v. Crawford, 599 F.2d 666, 671 (5th Cir.1979) (offense severity determined when offense not specifically listed in offense severity table); Wilkes v. U.S., Civil No. B-82-164, Slip Opinion at 1-2 (D.Conn. January 5, 1983) (same); Lieberman v. Gunnell, Civil No. B-82-657, Slip Opinion at 4 (D.Conn. June 27, 1983) (same); cf. McCown v. Gunnell, Civil No. B-82-600, Slip Opinion at 9-14 (D.Conn. May 3, 1983) (Commission could consider entire offense behavior in establishing offense severity); Payton v. Thomas, 486 F.Supp. 64, 68 (S.D.N.Y.1980) (same). While this offense is not explicitly covered in the new section A.2(b)2, the Court notes the description of the offense in the original complaint as demonstrating the minor character of the offense. The charging police officer complained that petitioner, while in custody, “when asked to give his Brown Leather Jacket to Complainant ... flung it with force, hitting Complainant in the face.” The Court believes it possible that the Commission, when reviewing this offense in light of the new Convictions Amendment, may deem it analogous to or of the severity of “resisting arrest,” see Amendment 83/3, Section 2.20-07.A.2(b)10, an offense now not to be considered in the salient factor score computation which was not previously listed in the minor offense category. This may be true particularly in view of the fact that the recordings of the court proceedings on this issue have been erased, see Supplemental Traverse, at 2 & Exh. C, the description of the offense is fairly benign, and petitioner was without counsel. If the Parole Commission was to decide that this conviction should not be included as a prior conviction, the Court would then not need to reach the constitutional issues. Based on this possibility, the Court hereby orders that the Parole Commission conduct a new hearing on petitioner’s ease, addressing the salient factor score in light of the 83/3 Amendment.

There is a second, and possibly more compelling reason why the Court feels that it is appropriate to direct the Commission to conduct a new parole hearing in this case. The petitioner’s “fourth” conviction resulted from the proceeding in Secaucus Municipal Court in New Jersey on October 31, 1979. See Supplemental Traverse, Exh. E. Virtually all of the government’s papers state that at this proceeding, petitioner pleaded guilty to simple assault while the malicious damage charge was dismissed. See Government’s Response to Order to Show Cause, at 3 (discussing petitioner’s “1979 simple assault conviction”); Affidavit of Jack Schneider, attached thereto, at 4, ¶ 11 (on October 31, 1979 petitioner “pleaded guilty to the [simple] assault and was fined $250.00”) (apparently relying on the presentence report); Government’s Response to Supplemental Traverse, at 1 (“in 1979, when [petitioner] was convicted of simple assault”). The petitioner, unrepresented at this 1979 proceeding, also asserts in his papers that he was convicted there on the charge of simple assault. See Petition for Writ of Habeas Corpus, at 7 (pages unnumbered) & Exh. D, at 4 (page unnumbered); Supplemental Traverse, at 2 (discussing uncounseled “1979 simple assault conviction”). The Court has good reason to believe that all parties are in error, and that petitioner’s October 31, 1979 conviction was for malicious damage and not for simple assault.

The judgment order from the Secaucus Municipal Court lists the two charges and their dispositions. The order clearly lists a plea of guilty to the charge of malicious damage, not to the charge of simple assault. See Supplemental Traverse, Exh. E. Further, the order shows a fine of $100 levied against the petitioner, with $50 of that fine suspended, id., rather than the fine of $250 that the government asserts was levied against petitioner. See e.g. Affidavit of Jack Schneider, at 4, ¶ 11. Moreover, the judgment order clearly shows the simple assault charge listed as dismissed by the court. See Supplemental Traverse, Exh. E. The accuracy of the judgment order in regard to the above is corroborated by the transcript of the October 31, 1979 proceeding, which petitioner offered at the May 20, 1983 hearing in this Court, and to which the government did not object (marked as Pltf’s. Ex. # 1 for identification). Thus, it appears that all parties, including the Parole Commission, have been proceeding in this matter based on the erroneous belief that on October 31, 1979 the petitioner was convicted of simple assault and the malicious damage charge was dismissed, while the reverse is in fact correct.

As with the petitioner’s “third” conviction, the Court believes that the Parole Commission should have the opportunity to review the October 31, 1979 proceedings, and determine whether there is a prior conviction, within the meaning of § 2.20-07 A.2(b), for the purpose of computing the salient factor score. Although not explicitly covered in the 83/3 Amendment to the Rules and Procedure Manual, a malicious damage charge may be deemed by the Parole Commission to be analogous to the listed offense of disorderly conduct/disorderly person/breach of the peace/disturbing the peace, see Amendment 83/3, Section 2.20-07 A.2, or to the listed offense of resisting arrest, id. A.2.(b)(10). This may be the case considering the truly minor nature of the offense. Revealing the character of the offense, the judgment order describes the offense behavior as “kick and damage the water cooler at Police [Headquarters].” In any event, the Court feels that the initial determination as to whether this offense, not previously considered by the Parole Commission, should be counted as a prior conviction for salient factor score purposes, must be made by the Parole Commission. This belief is supported by the fact that if the Commission decides that this offense should not be counted, petitioner will have a salient factor score of 8 to be considered with the offense severity rating of “high” in a new parole hearing, which is the thrust of the relief that petitioner seeks, thus eliminating the necessity of this Court deciding the constitutional questions.

The Court cannot help but note that in this case where petitioner is claiming the unreliability of uncounseled convictions, all parties, including the petitioner, are mistaken as to what offense petitioner pleaded guilty on October 31, 1979. It is a telling commentary indeed, in the face of the government’s position that the October 31, 1979 conviction should be includable as a prior conviction in computing petitioner’s salient factor score, that the petitioner, uneounseled at the 1979 proceeding, did not know to what offense he had there pleaded, and was thus unable to bring the true state of events to the attention of the government.

Based on the above, the Parole Commission is ordered to conduct a new parole hearing on petitioner’s case, addressing the issues noted herein, within 30 days of this date. Petitioner has been incarcerated for approximately 18 months, and if petitioner is correct on the constitutional issues raised herein, or if the “third” or “fourth” conviction, or either of them, are not counted as (a) prior conviction(s), petitioner is entitled to a hearing based on a guideline range of 14-20 months. This consideration dictates the immediacy of the new hearing. The Court will retain jurisdiction in this matter, and petitioner shall be permitted to apply to this Court for relief, if he feels it necessary to do so, from the result of the new hearing, without further exhaustion of administrative remedies.

It is SO ORDERED.

      . Two of these uncounseled convictions, on charges of disorderly person and simple assault, occurred on December 20, 1973, and were considered by the Parole Commission as a single conviction arising from the same offense behavior. These were considered as petitioner’s "third” conviction. The remaining uncounseled conviction on October 31, 1979 was considered as petitioner’s "fourth” conviction.

      . Item A of the Salient Factor Score Computation Sheet relates to prior convictions and is as follows:
      A. Prior Convictions/Adjudications (Adult or Juvenile)
      None............................... =3
      One................................ =2
      Two or three....................... =1
      Four or more....................... =0
      Petitioner was considered as having four prior convictions and therefore received no points toward his salient factor score in Item A. See Government’s Response to Order to Show Cause, Exh. B, page 2.

      . The Court notes that the government is correct that Baldasar and Schindler v. Clerk of Circuit Court, 551 F.Supp. 561 (W.D.Wis.1982), are distinguishable from the facts in this case in that in each case the convictions and sentence were predicated on an uncounseled conviction. This distinction is not, however, dispositive of this case. The question is whether these uncounseled convictions, when considered as prior convictions in the salient factor score computation, are being used by the Parole Commission to enhance the actual incarceration of petitioner on the unrelated subsequent sentence, and whether this use offends the constitution as did the practice in Baldasar.

      Petitioner is seeking a very limited ruling in that he challenges only the Parole Commission’s use of these uncounseled convictions as prior convictions. Petitioner acknowledges the Commission’s right to consider "a wide range of information, including information based on hearsay and unproved allegations of criminal conduct” in making its parole decision Supplemental Traverse, at 6. Thus, petitioner does not seek to prevent the Commission from considering these incidents, as general considerations but only seeks to prevent their consideration as prior convictions.

      . This trustworthiness, in the first instance, results from convictions being returned only upon a finding by a jury or the court that the government has carried its burden and has established all essential elements of the crime beyond a reasonable doubt, or by an admission by the defendant, in a plea of guilty, that the defendant in fact committed the offense. The trustworthiness of a conviction is diminished and the conviction itself is impugned, when it is arrived at where the defendant is without the assistance of counsel. And where the defendant is an indigent and has not waived the right to assistance of counsel, the defendant cannot be made to surrender the reliability of such a conviction and have that conviction enhance incarceration. See Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979); Baldosar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980) (per curiam); id. at 226-29, 100 S.Ct. at 1587 (Marshall, J., concurring).

      . The Lewis Court held that the statute defined as an offense, possession of a firearm by a convicted felon “until the conviction is vacated or the felon is relieved of his disability by some affirmative action.” 445 U.S. 55, 60-61, 100 S.Ct. 915, 918, 63 L.Ed.2d 198. The Court rejected the notion that the statute was intended to include a convicted felon who had his or her underlying conviction reversed on appeal. Id. at 61 n. 5, 100 S.Ct. at 918 n. 5. Thus, the Court in Lewis noted that the convicted felon was not without a remedy in that he or she could appeal the underlying conviction directly raising the issue of denial of the right to counsel. Id. at 64, 100 S.Ct. at 920. The Court did not allow a collateral attack on the underlying felony conviction in raising a defense to the possession charge. Id. at 65, 67, 100 S.Ct. at 920-21. This Court notes that petitioner, who has a conviction valid under Scott v. Illinois, has no such similar opportunity to raise the issue of denial of the right to counsel on direct appeal, as this conviction is not subject to being vacated on this ground.


author: URBOM, Chief Judge.

text:
    Lee A. BEANS, Petitioner, v. Charles BLACK, Warden, Nebraska State Penitentiary, Respondent.
    No. CV83-L-97.
    United States District Court, D. Nebraska.
    March 9, 1984.
    On Motion to Amend April 9, 1984.

      John Tarrell, Kearney, Neb., for petitioner.
    Harold Mosher, Asst. Atty. Gen., Lincoln, Neb'., for respondent.
   MEMORANDUM OF DECISION

URBOM, Chief Judge.

Lee A. Beans’ petition for a writ of habeas corpus raises, inter alia, the difficult issue of the extent of a defense counsel’s duty to a client who has been declared competent to stand trial and who appears determined to plead guilty against his attorney’s advice. While I retain a substantial doubt about whether the disposition of the petitioner’s case in the state courts accurately reflects the proper level of his culpability for the slaying of his wife in 1976,1 must conclude, within the limits set by 28 U.S.C. sec. 2254, that the petitioner has received all of the process due to him and that his incarceration is not the result of ineffective assistance of counsel.

The review available in a federal habeas corpus proceeding is limited by sec. 2254(d). The federal courts must defer to findings of basic, primary, or historical fact made by the state court, unless the state fact-finding procedure is found to be deficient in one of the ways set out in see. 2254(d)(1-7), the record from the state court does not fairly support the state findings, sec. 2254(d)(8), or new evidence presented to the federal court establishes by convincing evidence that the factual determination made by the state court was erroneous. See Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), and 455 U.S. 591, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982). Such deference is due even in the absence of an express finding of fact accepting or rejecting particular evidence, where the state court follows the proper legal standard and makes a legal ruling which is inconsistent with an opposite view of that evidence. Marshall v. Lonberger, 459 U.S. 422, 430, 103 S.Ct. 843, 848, 74 L.Ed.2d 646 (1983).

The Nebraska Supreme Court set out the facts of the case, as it found them, in some detail in State v. Beans, 212 Neb. 31, 321 N.W.2d 72 (1982). See also, 199 Neb. 807, 261 N.W.2d 749. To the extent that the state court’s narrative represents facts, as opposed to questions of law or mixed fact and law, I am bound to follow it. I have previously denied the petitioner’s request for an evidentiary hearing, because he failed to specify what new evidence he needed to present. An examination of the record fails to disclose any of the section 2254(d) deficiencies in the state fact-finding process, and each of the relevant facts appears to be fairly supported by the record, although it may be possible to find support in the record for contrary findings. Because of this I will not reproduce here the facts of the case as described in State v. Beans.

The petitioner’s claims concern his mental competency at the time he pled guilty to first degree murder and the effectiveness of his appointed counsel in representing him during the course of the state criminal proceedings.

A court may not accept a guilty plea from a person who is mentally incapable of understanding the nature of the charge against him or the rights waived by the plea without violating that person’s right to due process, and a criminal defendant may not waive his procedural rights for determining competency. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). Robinson illustrates one method for challenging a conviction of an incompetent defendant: Where a substantial doubt as to competency is raised either before or at trial, the trial court must resolve the doubt before proceeding. The fact that the judge ordered a psychiatric evaluation may be enough to establish such a doubt under Robinson. See Brizendine v. Swenson, 302 F.Supp. 1011, 1019 (W.D.Mo.1969). Even though the resulting report indicates competency to stand trial, the trial judge should give the defendant an opportunity to challenge the report and to present evidence to the contrary. See Speedy v. Wyrick, 702 F.2d 723 (8th Cir.1983); cf. Floyd v. United States, 365 F.2d 368 (5th Cir.1966) (section 2255 proceeding). But cf. State v. Anderson, 186 Neb. 435, 183 N.W.2d 766 (1971) (no need for hearing if report indicates competency and nothing to contrary appears). Where a Robinson hearing is not held to resolve a substantial doubt as to competency, the federal court need not try to determine retroactively whether the defendant was in fact incompetent at the time of trial, because of the difficulty of doing so at such a late date.

An alternative to the Robinson approach is for the defendant to undertake the heavy burden of proving actual incompetency at the critical time. Johnson v. Estelle, 704 F.2d 232, 238 (5th Cir.1983); Blackwell v. Wolff, 403 F.Supp. 759 (D.Neb.), aff’d, 526 F.2d 1142 (8th Cir.1975).

Neither approach is helpful to the petitioner here. The trial court committed the petitioner to the Lincoln Regional Center for evaluation of his competency to stand trial on three separate occasions, and even rejected an earlier guilty plea in order to obtain further testing. The same doctors who had questioned his competency in earlier reports to the court reported in December 1976 that the petitioner’s condition had improved enough that he could cooperate with his counsel. The trial judge accepted the report into evidence without objection and gave the petitioner a chance to be heard. When no evidence was forthcoming, other than defense counsel’s bare assertion that he believed his client to be incompetent, the judge found the petitioner to be competent. The judge noted that even counsel’s statement did not contradict the psychiatric report, because counsel had explained that his client was refusing to cooperate in his defense, not that he was incapable of cooperating. Unlike Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103, nothing in the record shows that the petitioner’s later behavior should have put the judge on notice that the petitioner was not competent at the time of the arraignment or the factual basis hearing or the sentencing, such that a new evaluation or hearing would be necessary.

As for actual incompetency, everything before this court was before the state court in the post-conviction proceedings, including Dr. James Cole’s criticism of the December 1976 report. The state supreme court chose to rely upon the opinion of the psychiatrists and psychologists at the Regional Center, who had been examining the petitioner for over half a year, ratner than that of Dr. Cole, a psychologist who had never examined the petitioner and who based his opinion on incomplete records. Impliedly, the state courts also rejected the lay opinion of Terry Dowling, who had visited the petitioner during the critical period. This determination of competency by the state court is a finding of fact entitled to deference under section 2254(d). White Hawk v. Solem, 693 F.2d 825, 829 (8th Cir.1982), cert. denied, 460 U.S. 1054, 103 S.Ct. 1505, 75 L.Ed.2d 934 (1983). It is fairly supported by the record, and nothing new has been presented to show it to be erroneous.

Neither is there any ground for finding a constitutional violation with respect to other aspects of the requirement that a guilty plea be voluntarily, intelligently and knowingly made. The state court found that the defense counsel advised the petitioner of the nature of the charge, the element of intent to kill or to do bodily harm, and the possible defense of self defense, as well as other defenses. The record shows that the trial judge informed the petitioner of the nature of the charge and its elements and determined that he understood both the rights he was waiving by pleading guilty and the consequences of doing so. This was adequate to satisfy due process. See Wabasha v. Solem, 694 F.2d 155 (8th Cir.1982).

The trial judge found that the evidence adduced at the factual basis hearing supported the plea to first degree murder. The judge hinted, and I tend to agree, that the evidence also would have supported lesser degrees of homicide, or even self defense. However, the establishment of a factual basis for a guilty plea is not a requirement of due process. Wabasha v. Solem, supra; White Hawk v. Solem, supra. A factual basis is required constitutionally only if the guilty plea is accompanied by a protestation of innocence. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Here the petitioner proclaimed his guilt without reservation. A guilty plea made by a competent person is valid if it “represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” Id. at 31, 91 S.Ct. at 164.

The Sixth Amendment claim has various aspects. One contention concerns the alleged failure of the defense counsel, Gary Giese, to investigate the facts of the shooting or to interview the four eyewitness or other potential witnesses for the prosecution. The state court found that the investigation was adequate under the circumstances, but this is a mixed question of fact and law not subject to section 2254(d). See McQueen v. Swenson, 498 F.2d 207 (8th Cir.1974). However, even assuming that counsel's inactivity in this regard violated the duty to investigate established by McQueen, the second prong of the federal test, that the substandard performance materially prejudiced the defense, is not established. Unlike the situations in Hawkman v. Parratt, 661 F.2d 1161 (8th Cir.1981), and Morrow v. Parratt, 574 F.2d 411 (8th Cir.1978), the defense attorney here did not advise his client to plead guilty. Rather, as the state court found, he advised him to plead not guilty and even objected to entry of the guilty plea. The state court found, and the record shows, that the defendant refused to cooperate with counsel and arrived at the decision to plead guilty on his own. Prejudice in the cases named above existed because an investigation would have uncovered information or evidence helpful to the defense which might have induced counsel to advise his client differently. Here counsel already was advising against a guilty plea, and there appears to have been nothing not already known to counsel or the petitioner which would have been so significant as to have an effect on the petitioner’s resolve to plead guilty.

Similarly, defense counsel’s failure to pursue plea negotiations past an initial rejection by the prosecutor was not prejudicial to the petitioner. The state court found that the petitioner rejected the possibility of a plea bargain and continued to insist upon pleading guilty to first degree murder. There is fair support in the record for this finding.

An overtone in the petitioner’s argument is that he refused to cooperate with his appointed counsel because of frustration over what he saw as his counsel’s failure to do anything to prepare a defense or to get him out of the Regional Center, and because counsel lied to him about why he was being kept at the Center. The petitioner told the judge at his final arraignment that his attorney had lied to him, and there is some evidence that an earlier attempt to ask the judge to remove Giese as defense counsel was thwarted, but the petitioner told the judge at the final arraignment that he was satisfied with the legal advice he had received. The state court impliedly rejected the foregoing as a basis for an involuntary plea, and I see little in the record to warrant further examination.

The petitioner testified at his post-conviction hearing that his attorney never discussed with him the elements of the charge or the possibility of a lesser charge or the availability of defenses. However, Giese testified to the contrary, and the state court believed Giese. Even so, the petitioner was adequately notified of the nature of the charge he was admitting by means of the information and the trial judge’s discussion of the elements of the offense at the final arraignment.

A more complex aspect of the Sixth Amendment claim is that involving defense counsel’s effectiveness regarding the competency question. At the October 6, 1976, competency hearing, after a report was received from the Lincoln Regional Center saying that the petitioner was still mentally incompetent, Giese told the court that his client wanted an evaluation by a second psychiatrist. The judge refused to order another evaluation, other than that to be done at the Regional Center, but told Giese that the court would cooperate if he wanted to obtain an independent evaluation on his own. Another competency hearing was held December 23, 1976, at which the prosecution introduced a report from the Regional Center stating that a team of two psychiatrists and two psychologists found that the petitioner now was capable of standing trial and cooperating with his attorney. Giese made three statements in response: He said that his client had no objection to the report, he objected to the portion of the report containing statements made by the petitioner about the shooting, and he stated that he believed that his client was incompetent to stand trial because he was refusing to participate in his own defense “for various reasons which will come out at a later hearing, I believe.” Giese did not offer any evidence to rebut the conclusion drawn by the Regional Center team, nor did he ever obtain an independent evaluation. The transcripts of later hearings do not explain what the “various reasons” were. The petitioner pled guilty December 27, 1976. At the close of that hearing, Giese told the court that the plea was against the advice of counsel and that he would explain at the next hearing. Giese did not address the competency question at the next hearing, held January 4 and 5, 1977, to establish a factual basis for the plea, but he did vigorously cross-examine the state’s witnesses. Giese did not present any evidence, saying that Beans had consistently refused to cooperate, had no desire to defend himself, and did not want to take the stand. At the January 20, 1977, sentencing hearing, Giese called a witness to attempt to establish mitigating circumstances.

To establish a claim for ineffective assistance of counsel, the petitioner must show, first, that his attorney failed to exercise the customary skills and diligence that a reasonably competent attorney would perform under similar circumstances, and, second, that such actions or inactions of his attorney materially prejudiced the defense. Morrow v. Parratt, 574 F.2d 411, 412-13 (8th Cir.1978).

I tend to agree with the petitioner’s position that where a defense attorney believes that his client is incompetent to stand trial, even after a psychiatrist has issued an opinion to the contrary, the attorney has a duty to investigate the issue further, whether that means to obtain a review of the original opinion or to obtain an independent evaluation of his client’s current mental state. The same duty would exist where the defendant’s mental condition appears to deteriorate after the competency hearing such that a doubt exists about his competency at the time of arraignment or trial. Also, it is not reasonable for counsel to follow his client’s instructions as to bypassing a critical objection if counsel believes, or has reason to believe, that his client is mentally incompetent. However, this duty did not arise in the present case. Giese testified at the post-conviction hearing that he believed at the time of competency hearing that Beans was competent to stand trial. He explained that he argued incompetence to the judge only because Beans was refusing to cooperate. This is consistent with Giese’s statement on December 23, 1976, as shown in the hearing transcript. Giese also testified that he did not observe any change in his client’s condition during the course of the December 1976 and January 1977 hearings. While the state courts did not pass on the weight to be given Giese’s testimony on this subject compared with that due the petitioner’s testimony and that of Terry Dowling to the effect that the petitioner was incompetent during this period, my own examination of the record favors Giese’s version. Giese had the opportunity to observe his client over the span of several months, both in the early phase of the process when all concerned agreed that Beans was incompetent, and throughout the final series of hearings. Absent any inconsistent behavior on the part of Beans, it was not unreasonable for Giese to believe the opinion of the Regional Center doctors. Giese’s observation that Beans’ condition did not change after the final competency hearing is bolstered by the testimony of Deputy Sheriff Glen Schleve, who saw Beans at the Buffalo County jail several times a week from December 20, 1976, to January 20, 1977, that he was “pretty well depressed” but that his condition did not change and was better than the previous May. The Regional Center team which found him competent to stand trial had also said Beans was still depressed, but had improved. Dowling also saw him during this period, but his bare conclusion that Beans was incompetent to stand trial was not backed up with the specific observations at the base of that lay opinion. Thus, I conclude that Giese did not act unreasonably when he did not challenge the competency ruling.

Even if Giese had performed inadequately in failing to investigate his client’s competency during the final series of hearings, the petitioner has failed to show that there was anything helpful to the defense which Giese might have found. There is nothing in the record to raise a substantial doubt that Beans actually was incompetent during December 1976 or January 1977; therefore, there is no reason to believe that a second opinion would have been different than the first. Also, assuming that Giese could have obtained Dr. Cole’s review of the Regional Center’s report and used it at the December competency hearing, the Cole report would not have carried the day, as shown by the trial judge’s rejection of it during the post-conviction proceeding in favor of the more credible Regional Center opinion.

The state court found that after the January 20, 1977, sentencing hearing—contrary to Beans’ testimony that it happened on January 4, but consistent with Giese’s testimony—Beans signed a “Notice of Intent Not to Appeal” which absolved Giese and the Public Defender’s office of further responsibility for representing Beans. Giese testified that he believed at the time that Beans actually intended not to appeal, but that he came to believe later that Beans wanted another attorney to file an appeal. Giese testified that he had advised Beans about his appeal rights and the deadlines for doing so. On January 27, 1977, Beans did file a notice of appeal, and the court appointed John Tarrell to represent him. No motion for a new trial was filed, although some time remained for doing so, and the Nebraska Supreme Court rejected the appeal because of the lack of a motion for new trial. Given these circumstances, I do not perceive any inadequacy on Giese's part, either in not filing a motion for new trial himself or in preventing Beans from doing so. Giese’s only remaining responsibility to his client, who he still believed to be competent, was to advise him of his appeal rights, which he did, and to break off the relationship when Beans told him to. Assuming that Tarrell was derelict in pursuing a doomed appeal without filing a motion for new trial, nothing in the record shows that Beans would have been entitled to withdraw his guilty plea at that late date had a motion been filed. See State v. Holtan, 216 Neb. 594, 344 N.W.2d 661 (1984).

ON MOTION TO AMEND

Upon consideration of the petitioner’s motion to amend the court’s findings of fact and conclusions of law or for new trial, filing 20, I conclude that I shall stand by my denial of the petition for writ of habeas corpus but shall make some amendment of the memorandum of decision.

In my memorandum of March 9 I treated January 20, 1977, as the date from which the ten-day period for filing a motion for new trial began to run. See § 29-2103, R.R.S.Neb. (Reissue 1979). After noting that the petitioner had discharged his trial counsel on January 20 and that new counsel was appointed on January 27—the day that the petitioner filed a pro se notice of appeal—I stated that the newly appointed attorney still had time in which to file a motion for new trial, thereby preserving for appeal the issues which the Supreme Court of Nebraska later refused to review because of the failure to file a motion for new trial. This was not correct. Nebraska law consistently has held that a motion for new trial must be filed within ten days after the verdict, not after the sentencing. State v. Lacy, 195 Neb. 299, 237 N.W.2d 650 (1976). The verdict in this case was rendered on January 5 and the sentencing occurred on January 20. Therefore, by the time Mr. Tarrell was appointed, any meaningful direct appeal already had been lost.

However, this does not change the outcome of this case. The petitioner remained adamant throughout the course of his relationship with Mr. Giese—the attorney originally appointed to represent him—that he intended to plead guilty and did not intend to appeal. It is unclear just when Giese advised the petitioner of his appeal rights, but on January 20 the petitioner discharged Giese and signed a notice of intention not to appeal. This is strong evidence that the petitioner would have made the same decision five or more days earlier—before the time for moving for a new trial had expired. It is clear that Giese was following his client’s wishes when he let the ten days elapse without filing a motion for new trial. He had no duty under the Constitution to do otherwise, in light of the state courts’ finding that the petitioner was competent throughout this period and my finding that nothing in the record is sufficient to overturn that finding.

Additionally, even if Giese had violated some duty to the petitioner by not filing a timely motion for new trial, I have no reason to change my earlier finding that nothing in the record shows that the petitioner would have been entitled to withdraw his guilty plea had a timely motion been filed.

IT THEREFORE IS ORDERED that, except as otherwise reflected in this memorandum, the petitioner’s motion, filing 20, is denied.


author: RYMER, District Judge.

text:
    Anthony OVERMAN, Plaintiff, v. UNIVERSAL CITY STUDIOS, INC., a corporation, and Richard Pryor, Defendants.
    No. CV 82-3604-PAR.
    United States District Court, C.D. California.
    April 26, 1984.

      Theodore Nunes, Beverly Hills, Cal., for plaintiff.
    Edward A. Ruttenberg, Youngman, Hun-gate & Leopold, Los Angeles, Cal., for defendants.
   MEMORANDUM OF DECISION AND ORDER

RYMER, District Judge.

This is an action for copyright infringement and fraud brought by the author of a 1977 screenplay entitled “Easy Money” against the producers of the movie, “Bus-tin’ Loose.” “Bustin’ Loose” starred Richard Pryor and plaintiff contends his screenplay was written with Pryor in mind. The complaint sets forth a number of alleged similarities: in subject matter, being the story of a black neer-do-well who transports a moralistic black woman and a brood of children from one place to another in a vehicle; and specific expression, such as the use in both “Bustin’ Loose” and “Easy Money” of a peaceful interlude by a lake to bring the man and woman closer together, the presence in both works of a conflict pitting the man and woman against a pair of criminals in which the woman saves the man from danger by destroying the valuable object sought by the criminals, and the fact that both works end with the man, woman and children starting a new life together in a rural setting.

Defendants have moved for summary judgment on the copyright claim, contending that, as a matter of law, “Bustin’ Loose” does not infringe plaintiff’s copyright since there is no substantial similarity between the two works. Both access and ownership are conceded for purposes of this motion. Overman’s 1977 screenplay was the product of numerous revisions of an earlier work originally authored by Overman and two others in 1971. The two co-authors, Irving Cowley and Connie Blackwell, transferred all of their ownership rights in the 1971 draft to Overman in October of 1971. This draft was not copyrighted until April of 1983. While defendants argue that only those aspects of Over-man’s screenplay that originated with the 1977 version should be considered, they claim that even if the entire “Easy Money” screenplay is examined, there is no actionable similarity between “Bustin’ Loose” and any of the protectable aspects of plaintiff’s work.

Assuming the Court grants summary judgment on the copyright claim, defendants also seek dismissal of the pendent state law claim for fraud on jurisdictional grounds.

Overman opposes the summary judgment motion and in addition, has moved for leave to file an amended complaint and to add parties plaintiff. These motions are apparently addressed to the defendants’ arguments that the 1977 screenplay constitutes a derivative work and that only those portions original to the 1977 version can be used as a basis for this action. Plaintiff alleges in his proposed second amended complaint that both the 1971 and 1977 drafts of “Easy Money” have now been copyrighted and that both copyrights have been infringed by “Bustin’ Loose,”

Although the Court is inclined to deny plaintiff’s motion for leave to amend the complaint to add parties plaintiff because of plaintiff’s delay in bringing the motion and the resultant prejudice to defendants, those issues need not be decided at this time. Since defendants’ summary judgment motion addresses both plaintiff’s original work (the subject of the proposed amended complaint) and his derivative work (the subject of the original complaint) both works are before the Court and have been considered.

The Court issued a tentative ruling and heard argument on both parties’ motions on July 25, 1983 and thereafter took the matter under submission. Defendants filed a supplemental brief in support of its motion on August 17,1983. In response to concerns raised by the Court at oral argument, defendants indicated in their supplemental brief that they would stipulate to tolling of the statute of limitations on plaintiff’s state law claim for fraud. Having thoroughly examined the exhibits filed by both sides, including reading plaintiff’s screenplays and defendants’ script in addition to viewing a video tape recording of defendants’ film, and having reviewed all the relevant authorities including those presented informally in letters to the Court subsequent to the hearing, the Court grants defendants’ motion for summary judgment and dismisses the pendent fraud claim.

A. Applicable Standard.

In general, summary judgment should only be granted where there is no genuine issue of material fact. See, Garter-Bare Co. v. Munsingwear, Inc., 622 F.2d 416 (9th Cir.1980); 6 Moore’s Federal Practice § 56.17(14) n. 5. In this case, the basic facts are not in dispute. The defendants concede for the purposes of this motion that they had access to the plaintiff’s screenplay. Additionally, defendants appear willing to assume that plaintiff's work is validly copyrighted. Both the allegedly infringing work and the plaintiff’s work (original as well as derivative) are before the Court and there is no dispute as to their authenticity. Thus, the only question left for resolution is whether, as a matter of law, defendant’s movie is substantially similar to plaintiff’s screenplay. Even though the issue of similarity is factual, when only one jury verdict could be upheld, summary judgment is appropriate. See, e.g., Jason v. Fonda, 698 F.2d 966 (9th Cir.1982), aff’g 526 F.Supp. 774 (C.D.Cal.1981); Smith v. Weinstein, 578 F.Supp. 1297 (S.D.N.Y.1984); McMahon v. Prentice-Hall, Inc., 486 F.Supp. 1296 (E.D.Mo.1980).

In Sid & Marty Krofft Television v. McDonald’s Corp., 562 F.2d 1157 (9th Cir.1977), the Ninth Circuit articulated a bifurcated test for infringement according to which substantial similarity in ideas is analyzed by extrinsic criteria and substantial similarity in expressions by intrinsic appraisal. 562 F.2d at 1164. Although some courts and commentators have read Krofft as precluding summary resolution of copyright claims when the inquiry focuses on expression of ideas, see, e.g., Miller v. CBS, Inc., 6 Med.L.Rptr. 1859, 1860 (C.D.Cal.1980); 3 Nimmer on Copyright, § 13.03(E) n. 121.4a, recent decisions in See v. Durang, 711 F.2d 141, 143 (9th Cir.1983), and Jason v. Fonda, 698 F.2d 966 (9th Cir.1982), make clear this is not the case. In Jason, for example, the Ninth Circuit affirmed summary judgment for the defendant based on a finding that despite being concerned with the same general theme, there were substantial differences in the treatment by plaintiff's book and defendants’ movie of the basic idea. 526 F.Supp. at 777. In See v. Durang, the Court upheld summary judgment for the defendant on the ground that, although the basic ideas were the same, no reasonable trier of fact could find the forms of expression substantially similar. 711 F.2d at 143.

In this case, plaintiff’s claim is deficient in both respects. There is neither substantial similarity in the basic idea of plaintiff’s “Easy Money” and defendants’ “Bustin’ Loose,” nor is there similarity in overall impact, feel and effect. Defendants are therefore entitled to summary judgment.

B. Similarity of Ideas.

To determine whether there is any substantial similarity in the ideas used in the competing work, the Court applies an extrinsic test. Krofft, 562 F.2d at 1164; Jason, 526 F.Supp. at 777. Under this test, the Court may examine such criteria as the nature of the plot, characters, themes and dialogue of the two works. Jason, 526 F.Supp. at 777. Both works at issue here involve a black man involuntarily thrown together with a black woman and children on a journey. Both involve a certain amount of comedy related to the presence of the children. However, there are substantial differences between the plots, characters, sequences, themes, dialogue and feel of the two works. “Easy Money” is an earthy and heavily ethnic story. It has scenes of anger, violence and death. “Bustin’ Loose,” on the other hand, is generally light-hearted and bland. No one is killed. The humor relating to the children is more vulgar in “Easy Money,” more prankish in “Bustin’ Loose.” The male character in “Bustin’ Loose” got enticed by the mob to take a briefcase of contraband to Chicago using the woman and her three children as cover. The male in “Bustin’ Loose” went in the opposite direction, already being a crook and being enticed by his probation officer to escort the latter’s girlfriend and eight orphans—not her children—to the West Coast. To the extent that both are rogues with redeeming virtue, the character is not protectable. The females in each are totally different in character and development. Annie Mae in “Easy Money” is earthy, not all that attractive although very physical, uneducated and crass. Vivian, on the other hand, is classy, educated, attractive but not overtly physical, and “put together.” Annie Mae’s motive for going to Chicago differs significantly from Vivian’s motive in going to Washington.

The basic tone and feel of “Bustin’ Loose” is a light-hearted and sentimental comedy in which an educated urban black woman falls in love with a street-wise but loveable petty criminal after a cross-country adventure. The basic impression of “Easy Money” is an earthy and sometimes violent comedy in which an uneducated but strong-willed rural black woman falls in love with a street-wise black man following a cross-country adventure. As a matter of law, these ideas are not substantially similar.

C. Similarity of Expression.

The Court’s task in reviewing the competing works for substantial similarity of expression is to determine whether any reasonable trier of fact could find that such similarity exists as to all or part of the works. Under Krofft, this determination is to be made intrinsically, by simply reading and viewing the works themselves and considering the response of the ordinary, reasonable person. 562 F.2d at 1164. Dissection of the characters, scenes and plot is not appropriate. Id.

Following the guidelines of Krofft, the Court concludes that no reasonable trier of fact could find a substantial similarity of expression between “Easy Money” and “Bustin’ Loose.” The “total concept and feel” of the two works is entirely different. Extrinsic analysis aside, it is impossible to read plaintiff’s screenplays and defendants’ continuity or to view defendants’ film and conclude that defendants “wrongfully appropriated something which belongs to the plaintiff.” Id. at 1165, quoting, Arnstein v. Porter, 154 F.2d 464, 472-73 (2d Cir.1946), cert. denied, 330 U.S. 851, 67 S.Ct. 1096, 91 L.Ed. 1294 (1947). Recognizing that differences in medium from the screen to the screenplay might affect the overall presentation, the Court has been careful to base its impressions on comparisons of defendants’ continuity to plaintiff's screenplays as well as of defendants’ film to plaintiff’s screenplays. Regardless of which form of defendants’ work is considered, the result is the same.

The analytical discussion offered by plaintiff does not persuade the Court otherwise. In both his First Amended Complaint and his proposed Second Amended Complaint, plaintiff enumerates 19 points of alleged similarity among his underlying and derivative works and defendants’ screenplay. See, First Amended Complaint at 4-7; proposed Second Amended Complaint at 5-8. Of these, points A, B, G, H and M, relating to the basic story line and the general development of the characters and their relationships, involve only unprotectable abstract ideas, and not expression. Some of the other alleged similarities, points D, I, J, and S, fall under the category of “scenes a faire,” forms of expression which are either stock scenes or which flow necessarily from the elements common to the two works. See, See v. Durang, 711 F.2d 141, 143 (9th Cir.1983). Still other claimed similarities, points C3, C4, E, K, L, N and 0 simply do not exist. All of the scenes or characters mentioned in these points are clearly distinct as among the competing works either with respect to their expression or as to their function or role within the particular work. The remaining alleged similarities, points Cl, C2, F, P, Q and R, are somewhat similar but not so similar as to support plaintiffs copying claim. See, id. The use by defendants of these few isolated similar character traits and scenes does not give rise to a copyright infringement. See, Midas Productions, Inc. v. Baer, 437 F.Supp. 1388, 1389 (C.D.Cal.1977). In sum, none of these asserted similarities is significant in and of itself, and taken as a whole, the overall impact and effect is totally different.

Moreover, there are substantial differences in expression between plaintiffs works and defendants’ screenplay. The character of Donald in defendants’ movie is totally absent from plaintiff’s works as is the element of rivalry for the woman’s affections. The interplay between Stax and Annie Mae is central to plaintiff's story whereas in defendants’ film the triangular relationship among Vivian, Donald and Braxton is crucial. The “bad guys” in defendants’ movie are primarily comical figures who never kill anyone nor are they killed themselves. In plaintiff’s works, on the other hand, the “bad guys” are much more sinister and they succeed in killing some characters before the hero kills them. Finally, in plaintiff’s works, the central figures rely solely on their own resources in avoiding catastrophe while in defendants’ movie they are saved, after all else fails, by the generosity of others. Thus, the basic “lesson” of the works is completely different.

Viewing plaintiff’s works and defendants’ work in their entirety, the Court concludes that there is no substantial similarity in the protectable expression of the works as a matter of law. Summary judgment is appropriate on this issue because the facts are undisputed and the Court is satisfied upon reviewing the works that reasonable minds could not differ as to the absence of substantial similarity of expression. See v. Durang, 711 F.2d at 143.

In view of the conclusion that there is no substantial similarity between defendants’ work and either plaintiff’s original or derivative work, it is unnecessary to consider whether plaintiff’s protection is limited to new matter in the derivative work.

D. Dismissal of the Pendent Claim.

While recognizing that the Court has discretion to retain jurisdiction of plaintiff’s pendent state claim for fraud, this is not an appropriate case for the exercise of that discretion. The possibility that plaintiff may face a statute of limitations barrier to pursuing his claim in state court may, in some cases, weigh in favor of exercising pendent jurisdiction. See, Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir.1982). Here, however, defendants have stipulated that plaintiff’s filing of the fraud claim- in federal court has tolled the statute of limitations. Thus, dismissal by this Court will not prevent plaintiff from seeking relief in the California courts. Since the Court has not already familiarized itself with the legal and factual bases of plaintiff’s fraud claim and since no federal interests would be served by this Court’s resolution of this state law issue, the Court concludes that dismissal without prejudice is appropriate. See, Jason v. Fonda, 698 F.2d 966, 967 (9th Cir.1982).

IT IS THEREFORE ORDERED that:

1. Defendants’ motion for summary judgment on the copyright claim is granted both as to plaintiffs First Amended Complaint and as to the proposed Second Amended Complaint;

2. Plaintiff’s claim for fraud is dismissed without prejudice for want of jurisdiction;

3. Defendants are entitled to recover their costs in this action from plaintiff in an amount to be determined by the Clerk upon application by defendants;

4. Defendants shall prepare an appropriate judgment, including the amount of costs to be awarded, if any.