text:
    Daisy CANADAY, Lucy Roman, Melinda Panell, Teresa Rodriguez and Rebecca Booker, on behalf of themselves and their children and other dependent minors in their care, and on behalf of all others similarly situated, and The Coalition For the Homeless, Plaintiffs, v. Edward I. KOCH, as Mayor of the City of New York, George S. Vernez, as Acting Commissioner of the New York City Human Resources Administration, and Cesar A. Perales, as Commissioner of the New York State Department of Social Services, Defendants.
    No. 84 Civ. 3900.
    United States District Court, E.D. New York.
    Dec. 17, 1984.

      Washington Square Legal Services, Inc., Nadine Strossen, Paul Weiss, Rifkind, Wharton & Garrison, Jay Greenfield, Coalition for the Homeless, Robert Hayes, New York City, for plaintiffs.
    Robert Abrams, Atty. Gen. of the State of N.Y., Lillian Z. Cohen, Asst. Atty. Gen., New York City, for Perales.
    Corp. Counsel of the City of New York, Law Dept., Antonia Levine, New York City, for Koch and Vernez.
   MEMORANDUM AND ORDER

GLASSER, District Judge:

Plaintiffs bring this action pursuant to 42 U.S.C. § 1983, the equal protection clause of the United States Constitution, the Social Security Act, the New York Social Services Law and the New York City Code of Rules and Regulations, challenging defendants’ alleged failure to provide lawful emergency housing to homeless families with children. Defendants have moved to dismiss this action due to improper venue. In the alternative, defendants move to transfer this action to the Southern District of New York, or for this Court to abstain from exercising its jurisdiction due to the pending state court proceeding in McCain v. Koch, No. 41023/83.

For the reasons set forth below, defendants’ motion to transfer this action to the Southern District of New York is granted pursuant to 28 U.S.C. § 1406(a).

I. Background

Plaintiffs are five homeless, indigent mothers with children who are allegedly “at immediate risk of being denied emergency housing” by the defendants and seek certification as a “class of homeless families with children who have been, are being, or will be denied lawful emergency housing by the defendants.” In addition, plaintiffs seek a declaration that defendants’ failure to provide plaintiffs with such housing violates the laws cited above, an order preliminarily and permanently requiring defendants to provide plaintiffs with such housing, as well as costs and attorneys’ fees.

Defendant Koch is sued in his official capacity as the Mayor of the City of New York. His official residence is City Hall, which is located in the Southern District of New York. Defendant Vernez is sued in his official capacity as Acting Commissioner of New York City Human Resources Administration (“HRA”), and he maintains an official residence at 250 Church Street in the Southern District of New York. Defendant Perales, sued as the Commissioner of the New York State Department of Social Services (“DSS”), has official residences in Albany, located in the Northern District of New York, and at Two World Trade Center, in the Southern District of New York.

This action was commenced with the simultaneous filing of a complaint and order to show cause for class certification and preliminary injunctive relief on September 24, 1984. After being advised by counsel for defendants of their challenge to venue and jurisdiction, this Court permitted the parties to brief and argue these issues while the original order to show cause was held in abeyance.

At the time this complaint was filed, the named individual plaintiffs were being sheltered in temporary emergency housing provided by the City defendants. However, it is the process by which these plaintiffs were required to obtain housing, as well as alleged failures of that process, which caused plaintiffs to file this action.

In essence, the system by which homeless families obtain emergency shelter operates as follows: The HRA operates some forty income maintenance centers (IMCs) in New York City, at least nineteen of which are located in the Eastern District. Affidavit of Thomas H. Styron, dated October 2, 1984 (“Styron Aff.”). It is undisputed that when a homeless family first seeks to obtain emergency housing, the family first goes to an IMC in the home borough. The IMC refers the applicant to emergency shelter or sends the family to HRA’s emergency assistance unit (“EAU”) in Manhattan, which is also the only office connected with sheltering the homeless that is open after 5:00 P.M. From the EAU, applicants are referred to hotels or “barracks-style” emergency housing. Plaintiffs state that twenty of the fifty hotels to which homeless families are referred by the EAU are located within the Eastern District. The purported liability of defendant DSS arises from the fact that DSS supervises HRA’s operation of the IMCs, and regulates, inspects and funds the shelters to which homeless families are referred. In addition to operating the IMCs, plaintiffs state that HRA also operates or funds the shelters mentioned above. Styron Aff. ¶¶ 4, 6.

The five named plaintiffs and their children allege that they became homeless for a variety of reasons ranging from eviction to domestic violence. Three of the plaintiffs submitted affidavits detailing their dealings with the IMCs and EAU in support of their order to show cause for injunctive relief and class certification, which affidavits are summarized here. Daisy Cannady, the only named plaintiff who last resided in the Eastern District before becoming homeless, alleges that after receiving a few nights of emergency placement, she was not given a further placement by the IMC nor referred to the EAU for further assistance. Cannady then went on her own to the EAU where she and her family were referred to a barracks-style shelter at Roberto Clemente State Park (“Clemente”) in the Bronx. Because plaintiff and her husband felt this shelter to be unsuitable due to their daughter’s respiratory problems, they chose to stay overnight at the EAU office.

On September 20, the IMC allegedly directed Cannady not to return to the EAU due to the unavailability of placements. However, Cannady again returned to the EAU and stayed there overnight with her family. On September 21, plaintiff was turned away from the EAU because she lacked a referral from the IMC. After an attempt to secure a referral slip at the Clemente shelter, plaintiff returned to the EAU and was eventually referred to a hotel in Queens, where she remained at the time this action was instituted.

Plaintiff Planell last resided in the Bronx and was allegedly denied shelter at Clemente on September 14. She was later referred by the EAU to a Queens hotel placement for that night, but spent the following night in the EAU office because no placements were available. After spending the next five nights in a Bronx hotel, Planell was on September 21 referred by her IMC to a barracks style shelter in Brooklyn, which turned her away, allegedly due to her pregnancy. She then returned to the EAU and was placed in a Manhattan shelter until September 28.

Plaintiff Booker, who last resided in Manhattan, was referred by her local welfare office to a barracks-style shelter in the Bronx on September 21. When she was allegedly turned away at the shelter, she and her three children were taken to the EAU. After spending most of the night there, they were sent to a Queens hotel. Booker spent the next night at the EAU.

Plaintiffs Roman and Rodriguez have not submitted affidavits regarding their interaction with the IMCs and EAU. The complaint, however, alleges that Roman last lived in New York County. On September 19, the EAU allegedly referred her and her three children to a Bronx shelter. The family was robbed of food and clothing on its way to the shelter and was allegedly turned away at the shelter due to lack of space. The family returned to the EAU and eventually received a placement at 3:00 A.M.

Plaintiff Rodriguez allegedly had to split up her family to find shelter for herself and her three children after she became homeless in August 1984. Although the complaint alleges that the Rodriguez family spent some time on the streets and living with friends in overcrowded conditions since that time, there are no allegations as to the present whereabouts of the family.

II. Discussion

I note preliminarily that it is more than circumstance which brings plaintiffs to the venue of the Eastern District of New York. The plaintiffs candidly admit that they are in this Court because they believed they would obtain a ruling here that would be favorable to them. When they filed this action, plaintiffs informed the Clerk of this Court that this case should be assigned pursuant to Rule 3 of the Rules for the Division of Business among District Judges for the Eastern District as a case “related” to Koster v. Perales, 82 Civ. 2892 (ILG). That rule mandates assignment of a case to the judge to whom the first case filed was assigned. A case is “related” under Rule 3(a) “when, because of similarity of facts and legal issues or because the cases arise from the same transactions or events, a substantial saving of the time of the whole court is likely to result if the cases are assigned to the same judge.”

In Koster, plaintiffs purport to represent two classes of homeless families who have allegedly either been denied emergency shelter or furnished with inadequate emergency shelter in Nassau County. On November 9, 1983, I denied a motion to dismiss made by the two county defendants in that case. Koster v. Webb, 598 F.Supp. 1134 (E.D.N.Y.1983). While it is true that the legal issue of the right of the homeless to emergency housing is presented in both cases, the facts and parties of Koster and Cannady differ. Moreover, however related these cases may be, the local related case rule cannot be read to lay venue where it does not exist.

The specific venue provisions implicated in this proceeding are 28 U.S.C. § 1391(b) and § 1392(a), which provide:

§ 1391. Venue generally
* * * * * *
(b) A civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district where all defendants reside, or in which the claim arose, except as otherwise provided by law.
§ 1392. Defendants or property in different districts in the same State
(a) Any civil action, not of a local nature, against defendants residing in different districts in the same State, may be brought in any of such districts.

Plaintiffs contend that venue is proper under either § 1391(b) or § 1392(a). I will address each of these claims separately, considering first those based on defendants’ residence.

A. Venue Under § 1391(b) Based on Defendants’ Residence

As stated above, venue is properly laid under § 1391(b) in the district where all defendants reside or in which the claim arose. Plaintiffs claim that the Eastern District of New York meets either prong of the § 1391(b) test.

It is settled law that under § 1391 the “residence” of public officers such as these defendants means his or her “official” and not “actual” residence. Birnbaum v. Blum, 546 F.Supp. 1363, 1366 (S.D.N.Y.1982). While in suits against federal officers, courts have found only one official residence for venue purposes, policy reasons may warrant the recognition of multiple residences when considering venue in a suit against state officers. Cheeseman v. Carey, 485 F.Supp. 203, 207 (S.D.N. Y.1980), remanded on other grounds, 623 F.2d 1387 (2d Cir.1980) (court “should be willing to consider whether any defendant has more than one official residence for purposes of the particular litigation”).

At the outset, I note that the parties do not dispute that venue would be proper under this section in the Southern District of New York based on the residence of all of the defendants.

Plaintiffs urge that all defendants reside within the Eastern District under the reasoning set forth in Cheeseman, supra, South Ogden CVS Store, Inc. v. Ambach, 493 F.Supp. 374 (S.D.N.Y.1980) (“South Ogden”), and Buffalo Teachers Federation, Inc. v. Helsby, 426 F.Supp. 828 (S.D.N.Y.1976). In Buffalo Teachers, the court squarely addressed the issue of “when, if ever, a state governmental entity can be said to have more than one official residence for venue purposes.” 426 F.Supp. at 829. Plaintiffs there brought suit against three members of the New York Public Employment Relations Board (“PERB”), which had its headquarters in the Northern District of New York and an additional official residence in the Southern District. The court first considered the factors which weigh against finding that a federal defendant has more than one residence for venue purposes, namely, forum shopping and the possibility of the federal government having to respond to suit in any district where an employee resided. Finding that these policies did not prevent finding multiple residences in suits against state or local officials, the Buffalo Teachers court denied defendants’ motions to dismiss or transfer venue.

In Cheeseman, the court agreed with the policies set forth in Buffalo Teachers and set forth a three part test to determine whether a state defendant had a second official residence for venue purposes:

Whether a state defendant has a second official residence would seem to turn on three factors: (1) the defendant’s presence in the district in which the plaintiff has sued; (2) the extent of defendant’s official activities in the district; and (3) the relationship of the defendant’s activities within the district to the cause of action asserted.

485 F.Supp. at 207 (footnote omitted). Defendants were the Governor of New York State, the Office of Employee Relations (“OER”) and its Director, the State Comptroller, and other officials who directed agencies involved with employing security officers. As will be discussed further, infra, the Cheeseman Court rejected plaintiffs’ argument that all defendants resided in the Southern District of New York, 485 F.Supp. at 208, but found that § 1391(b) venue did lie in that district as the place where the claim arose. Id. at 213.

In South Ogden, plaintiff, a licensed pharmacy located in the Western District of New York, sued members or officers of three state agencies which allegedly violated plaintiff’s constitutional rights by determining that plaintiff violated certain state laws pertaining to pharmacy advertisements. Defendants were members of the Board of Regents, the State Commissioner on Education and the Executive Secretary of the New York State Board of Pharmacies. The Board of Regents and the Commissioner had official residences in both the Northern and Southern Districts of New York, and the Executive Secretary had an office in the Southern District. The hearing which determined plaintiff’s liability under the state laws also took place in the Southern District. The court found that in light of the fact that the violation hearing was held within the Southern District, defendants had failed to demonstrate that they had not done a significant amount of business relating to pharmacy regulation in that district. Thus, there was no showing by defendants of any inconvenience to or harassment of state officials by continuing suit in the Southern District, and the court denied defendants’ motion to dismiss or transfer for improper venue.

In the instant case, plaintiffs urge that all defendants reside in the Eastern District of New York because they all maintain offices in this District at which they conduct a significant amount of business relating to the provision of emergency housing for destitute homeless people. However, plaintiffs’ bare conclusion does not specifically contradict the defendants’ affidavits that the only official residences of defendants Koch and Vernez is in the Southern District of New York and that Perales resides in both the Northern and Southern Districts.

While it may be argued that defendant Koch, as Mayor of the City of New York, should be subject to suit in either the Southern or Eastern District, the multiple residence argument is more tenuous with regard to Vernez and Perales. Plaintiffs claim that defendant Vernez resides in the Eastern District because his agency, the HRA, operates numerous IMCs within the District. Similarly, plaintiffs urge that defendant Perales resides in the Eastern District because his agency, DSS, allegedly supervises HRA’s operation of the IMCs. See Styron Aff., discussed supra at 3-4. As suggested by defendants, I find that this interpretation of “official residence” for the purposes of § 1391(b) is strained.

The court in Cheeseman v. Carey, supra, was faced with a similar tenuous argument concerning § 1391(b) venue based on the residence of all of the defendants. There plaintiffs contended that defendant OER, which had no office in the Southern District, nevertheless had an official residence there because OER was part of the Executive Branch, which allegedly maintained a substantial office in that district. The defendant Director of OER was therefore said officially to reside in the Southern District because he “acted on behalf of ‘the chief fiscal officer of the government involved’ ” when committing allegedly wrongful acts against plaintiffs. 485 F.Supp. at 208 (citing N.Y.Civ.Serv.L. § 210(3)(h)). The court found such contacts insufficient to establish venue because they had “nothing to do with the state official actually being sued.” Id. Whereas the challenged acts of the Director related to his issuance of plaintiff’s paychecks, no part of that payroll function took place in the Southern District.

In the instant case, the state defendant Perales is sued based on his alleged agency’s role in denying emergency shelter to homeless families. While it may be true that DSS has some supervisory power over IMCs located in this district, it would be unreasonable to infer that each of the IMCs is an “official” residence of defendant Perales. According to defendant Perales, any relevant decision-making by DSS takes place at either its Northern or Southern District residence. In addition, any alleged final denial of emergency shelter resulting in homelessness would have occurred at the EATJ in the Southern District. See supra at 3-4.

Without addressing whether defendants Koch or Vernez may be said to have official residences in the Eastern District for purposes of § 1391(b) venue, it is clear that state defendant Perales does not. Therefore, venue under this section based on the residence of all defendants is inappropriate.

B. Venue Under § 1392(a) Based on Residence of Some of the Defendants

Because plaintiffs also claim venue under this section, see supra at 7, I must now address whether defendants Koch and Vernez officially reside in the Eastern District. To this end the recent decision in Andrew H. v. Ambach, 579 F.Supp. 85 (S.D.N.Y.1984), is helpful. In that case, plaintiffs were minors requiring special education who alleged that defendants’ system of rate-setting did not fully reimburse private schools for the actual cost of educating handicapped children. Defendant Ambach, the New York State Commissioner of Education, allegedly established the rate-setting policy. Defendant Finnery, the New York State Director of the Budget, allegedly approved the policy. Finnery’s official duties were carried out in Albany only, while Ambach maintained offices throughout the state. Therefore, just as venue in the instant case would lie in the Southern District of New York based on the residence of all defendants, see supra at 8, venue in Andrew H. would similarly have been proper in the Northern District.

Plaintiffs in Andrew H. urged, however, that venue in the Southern District was proper because Ambach’s agency had a Division of Program Monitoring in the Southern District which conducted a significant proportion of the agency’s business relating to handicapped students. Id. at 89. However, the court chose to accept defendants’ argument that Ambach’s alleged “official residence” within the Southern District, i.e., the Division, did not conduct any activity in the Southern District related to the litigation. Therefore, while leaving open the issue of whether the Division might be an official residence for purposes of venue in other litigation, the court found that Ambach did not have a second official residence in the Southern District in the Andrew H. case. In the present case, the city defendants’ challenged policies of allegedly denying emergency shelter to homeless families are made at those officials’ residences in the Southern District. While the resulting effect of the alleged denial of shelter may be felt in both districts encompassing New York City, that matter goes to the situs of the cause of action, which is addressed infra at 15-19.

The court in Andrew H. went further to state that even if defendant Ambach had a second official residence within the Southern District, venue would still be improper because application of § 1392(a) in such circumstances would emasculate § 1392(b). The court reasoned:

Even if this court were to find that the Commissioner also has an official residence in New York City, venue still would not lie in this district under section 1392(a). That section applies only to civil actions “against defendants residing in different districts in the same state” (emphasis added) The plain meaning of this language seems to preclude the application of section 1391(b) to the present case, in which both defendants reside in the Northern District. Plaintiffs cite some authority interpreting section 1392(a) to confer venue even where all defendants reside in the same district, so long as one defendant also has a residence in a different district____ However, it appears that the better view, based on the language of the section and its underlying policy, holds that where all defendants reside in the same district, section 1392(a) should not apply.

579 F.Supp. at 89 (emphasis in original) (citations and footnotes omitted). Considering the policy underlying § 1392(a) to permit a plaintiff to sue multiple defendants in a single district where otherwise he would have to bring multiple suits, id. at n. 6, the court found § 1392(a) inapplicable because the availability of the Northern District as a forum did not confront the parties with the necessity of multiple suits. The same reasoning here warrants the conclusion that venue exists only in the Southern District of New York, and that § 1392(a) is inapplicable.

C. Venue Under § 1391(b) Based on Where the Claim Arose

As discussed above, § 1391(b) permits venue to be found in the district “in which the claim arose” as an alternative to the district in which all defendants reside. An understanding of the applicability of this clause to the instant case is aided by a brief overview of the history of the statute. See generally 15 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 3806 (1976 & Supp.1984).

Prior to 1966, § 1391(b) did not contain the language “or in which the claim arose.” Thus, a plaintiff could not commence suit in a district where the claim arose if no party resided there, nor could an action be transferred to such a district pursuant to 28 U.S.C. § 1404(a). Following some earlier amendments, §§ 1391(a) and (b) were amended in 1966 to close this “venue gap” by permitting a suit to be brought in or transferred to a district “in which the claim arose.”

The closing of the “venue gap” which existed prior to 1966 has been addressed by the United States Supreme Court in Leroy v. Great Western United Corp., 443 U.S. 173, 99 S.Ct. 2710, 61 L.Ed.2d 464 (1979). In that case, Great Western, a Texas corporation, commenced an action in the United States District Court for the Northern District of Texas, challenging the application of Idaho, New York and Maryland corporate takeover laws to a bid which plaintiff had made for shares in an Idaho corporation. Defendants were state officials from the above three states charged with applying those laws. After the claims involving Maryland and New York law were dismissed, the trial court found that venue under § 1391(b) was improper because all defendants resided and the cause of action arose in the District of Idaho. However, venue was found to be proper under § 27 of the Securities Exchange Act of 1934. The district court also held that Great Western was entitled to judgment on the merits. On appeal, the Fifth Circuit affirmed the district court’s decision and additionally held that venue would have been proper under § 1391(b) because the allegedly invalid restraint on Great Western — i.e., the cause of action — arose in the Northern District of Texas. Great Western United Corp. v. Kidwell, 577 F.2d 1256 (5th Cir.1978).

The Supreme Court reversed the Circuit’s decision, finding that venue could not be premised upon § 27 of the Securities Exchange Act. The Court also held that § 1391(b) venue would not lie because all defendants resided in Idaho and the cause of action arose in Idaho because that was the forum “where Idaho officials ‘invalidly prevented Great Western from initiating a tender offer.’ ” 443 U.S. at 183, 99 S.Ct. at 2716, 61 L.Ed.2d 464 (citation omitted). In applying § 1391(b) to the record before it, the Court found that Congress did not intend that section to provide plaintiffs with an “unfettered choice among a host of different districts.” 443 U.S. at 185, 99 S.Ct. at 2717, 61 L.Ed.2d 464. Father, the Leroy court found, in an oft-quoted passage, that

the broadest interpretation of the language of § 1391(b) that is even arguably acceptable is that in the unusual case in which it is not clear that the claim arose in only one specific district, a plaintiff may choose between those two (or conceivably even more) districts that with approximately equal plausibility — in terms of the availability of witnesses, the accessibility of other relevant evidence, and the convenience of the defendant (but not of the plaintiff) — may be assigned as the locus of the claim.

Id. (citation omitted). The court therefore left open the issue of whether a claim could arise in more than one district.

Cases in this Circuit have concurred with Leroy that the “claim arose” language added to §§ 1391(a) and (b) was intended purely to fill the venue gap that had existed prior to the 1966 amendment. In Cheese-man v. Carey, supra, for example, the court stated:

If venue gap filling was Congress’ only purpose in amending Sections 1391(a) and (b), it would appear that any given cause of action should be deemed to arise in only one district, since at that point the venue gap would be filled. And the most suitable analytical tool for determining in which district venue should lie would seem to be the “most significant contacts” or “weight of the contacts” approach.

485 F.Supp. at 213 (emphasis added) (citation omitted). See also id. at 212 (“[m]ultidistrict venue would appear permissible only where the claim had very substantial contacts with, or a close relationship to, each of the districts claimed as potentially appropriate”). Thus, venue based on where the claim arose would be proper in the district “where the vast majority of the acts giving rise to liability took place.” Davis v. Costa-Gavras, 580 F.Supp. 1082, 1090 (S.D.N.Y.1984).

In the instant case, application of the “weight of the contacts” test would result in a finding that the plaintiffs’ claims arose in the Southern District of New York rather than in this district. All of the defendants, whose policies are challenged by plaintiffs, reside in the Southern District and set such policies there. In addition, although members of the purported class last resided in or may have been turned away from IMCs in the Eastern District, it is evident from the pleadings and motion papers that the EAU in the Southern District is where most alleged denials of emergency housing take place. Plaintiffs assert that their claims could be said to arise in the Eastern District because the effects of defendants’ alleged decisions to deny them emergency shelter are most strongly felt in this district. They base this claim on eases which state that the claim arises in the district where the parties seeking certain benefits would have received them. See, e.g., Florida Nursing Home Ass’n v. Page, 616 F.2d 1355 (5th Cir.) cert. denied sub nom., Taylor v. Golden Isles Convalescent Center, 449 U.S. 872, 101 S.Ct. 211, 66 L.Ed.2d 92 (1980), rev’d on other grounds sub nom., Florida Dep’t of Health & Rehabilitative Services v. Florida Nursing Home Ass’n, 450 U.S. 147, 101 S.Ct. 1032, 67 L.Ed.2d 132 (1981); Sanchez v. Pingree, 494 F.Supp. 68 (S.D.Fla.1980). This analogy is inapposite, however, because it is clear from plaintiffs’ allegations themselves that plaintiffs residing in one district may “receive the benefit” of emergency shelter in another district. See supra 598 F.Supp. at 1135-36. Thus, even if plaintiffs can establish that most members of the purported class of homeless families with children last resided in the Eastern District, there has been no showing that they would have been given shelter there.

Based on all of the facts set forth above, I would be inclined to find that plaintiffs’ claims arise in the Southern District of New York. However, I find that the reasoning of Andrew H. v. Ambach, supra, controls here. Although the court there held that § 1392(a) should not apply when all of the defendants reside in the same district, the policies underlying the amendment of § 1391(b) warrant the same result here. That is, because the “claim arose” language was inserted into § 1391(b) to fill a venue gap created by the residence of defendants in different districts, venue under the “claim arose” language should not be considered when, as here, all defendants do reside in the same district, i.e., the Southern District of New York.

D. Transfer of Venue

Because I conclude that venue does not properly lie in the Eastern District of New York, I must consider defendants’ motions to transfer venue under 28 U.S.C. § 1406(a) rather than § 1404(a). See supra note 2. In the interests of justice, this case should be transferred to the Southern District of New York. I find it appropriate, however, to address the parties’ arguments concerning abstention.

E. Abstention

The parties, on oral argument and in their memoranda of law, have devoted significant thought to the applicability of the abstention doctrine and to the principle that duplicative litigation should be avoided by federal courts within the limits prescribed by Colorado River Water Cons. Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976) and Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). Had I concluded that venue was properly laid in this district, I would nevertheless have stayed this proceeding pending the disposition of the state court action.

The question presented in this regard is whether this Court should entertain this proceeding brought under the following circumstances:

1. The plaintiffs candidly admit that they were not only forum shopping, they were judge shopping. During one argument, plaintiffs’ counsel also stated, in substance, that he entertained little hope that the state court would pay attention to his case.

2. An action against the same defendants or their predecessors in office was commenced by Order to Show Cause in the Supreme Court of the State of New York, New York County, in March 1983 (approximately twenty-one months ago) seeking the same relief and relying upon the same federal and state statutes. Although the named plaintiffs are not identical, since class certification is sought in both actions and the plaintiffs named here would be embraced by the class should it be certified by the state court, to place undue emphasis upon the absence of plaintiff identity would exalt form over substance.

3. An appeal from the state court rulings is presently pending in the Appellate Division, First Department.

4. Extensive papers were submitted to the state court on June 8, 1983 incident to the plaintiffs’ application there for a preliminary injunction, which included affidavits of executives of City agencies which administer the City’s shelter program and briefs on the legal entitlement to shelter.

5. The state action has already involved substantial pretrial practice including five depositions of City officials concerning the City’s policies and practices of aiding homeless families.

6. Plaintiffs’ counsel sought a temporary restraining order in the State Supreme Court on September 20, 1984 on behalf of Teresa Rodriguez, named as plaintiff here, which was denied by a justice of that court who made her motion to intervene in the state action returnable on September 25, 1984. On September 24, 1984, the proceeding on behalf of Ms. Rodriguez was withdrawn and the proceeding in this Court was commenced the same afternoon.

“Considerations of ‘wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation’ ” Colorado River Water Cons. Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976) would dictate an answer in the affirmative. See also Northeast Mines, Inc. v. Town of Smithtown, 584 F.Supp. 112 (E.D.N.Y.1984); Moos v. Wells, 585 F.Supp. 1348 (S.D.N.Y.1984).

Without intending to suggest that the traditional abstention categories are not applicable, the discussion that follows will be limited to what has been referred to as “a fourth type of abstention” on the ground that duplicative litigation should be avoided. See 17 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 4247.

It is not disputed that a federal district court is obligated to adjudicate a controversy properly before it and abdication of that obligation can be justified only in those exceptional circumstances where important countervailing interests would clearly be served. It is also undisputed that as a general rule, as between state and federal courts, the pendency of an action in the state court is no bar to proceedings concerning the same matter in the federal court having jurisdiction. “The circumstances permitting dismissal of a federal suit due to the presence of a concurrent state proceeding for reasons of wise judicial administration are considerably more limited than the circumstances appropriate for abstention.” 424 U.S. 800 at 817-18, 96 S.Ct. at 1246-47.

The Colorado River Court then proceeded to describe the factors relevant to a determination that exceptional circumstances exist and after describing them said that “No one factor is necessarily determinative; a carefully considered judgment taking into account both the obligation to exercise jurisdiction and the combination of factors counselling against that exercise is required____ Only the clearest of justifications will warrant dismissal.” 424 U.S. 800, 818-19, 96 S.Ct. 1236, 1246-47.

The decision in Colorado River was carefully reviewed some seven years later in Cone and the court cautioned against a mechanical application of the exceptional circumstance factors. Those factors, said the court, were to be carefully balanced in any given case with the balance weighted heavily in favor of the federal court exercising jurisdiction.

One of the exceptional circumstances factors is the order in which jurisdiction was obtained by the concurrent forums. It is that factor which is especially significant in this case. The court in Cone made these observations with regard to that factor:

[T]his factor ... is to be applied in a pragmatic, flexible manner with a view to the realities of the case at hand. Thus, priority should not be measured exclusively by which complaint was filed first, but rather in terms of how much progress has been made in the two actions. Colorado River illustrates this point well. There, the federal suit was actually filed first. Nevertheless, we pointed out as a factor favoring dismissal ‘the apparent absence of any proceedings in the District Court, other than the filing of the complaint, prior to the motion to dismiss’ ... Here, the opposite was true. It was the state court suit in which no substantial proceedings (excepting only the abortive temporary injunction) had taken place at the time of the decision to stay. In the federal suit, by contrast, the parties had taken most of the steps necessary to a resolution of the arbitrability issue. In realistic terms, the federal suit was running well ahead of the state suit at the very time that the District Court refused to adjudicate the case.

460 U.S. 1 at 21-22, 103 S.Ct. at 940.

These factors and the foregoing observation by the Court are precisely applicable here. Measuring priority not by which complaint was filed first but by how much progress has been made in the two actions, priority should clearly be given to the state court suit.

Some of the other factors in Colorado River which supported dismissal by the district court in that case are also present here. There are, for example, extensive rights governed by state statutes and similar suits have been litigated in state court. In addition to McCain v. Koch, No. 41023/83, the pending state court suit presenting the identical questions, see Callahan v. Carey, N.Y.L.J. Dec. 11, 1979, p. 10, col. 5, and Eldridge v. Koch, 118 Misc.2d 163, 459 N.Y.S.2d 961 (Sup.Ct.N.Y.Co.), rev’d 98 A.D.2d 675, 469 N.Y.S.2d 744 (1st Dep’t 1983). It should be noted in passing that the state law issue, that is, the legal obligation of the defendants to provide emergency shelter, is as yet undecided by the state courts. In Callahan, the court granted a preliminary injunction requiring that 750 beds be provided to homeless men. A consent decree explicitly negating a finding of liability was thereafter entered. The granting of a preliminary injunction is not a determination on the merits and does not invoke the doctrines of res judicata or law of the case. D. Siegel, New York Practice, § 328 at 401 (1978).

It is true that the court in Roster v. Webb, 598 F.Supp. 1134 (E.D.N.Y.1983) denied the county defendants’ motion to dismiss the complaint made pursuant to Rule 12(b)(6) of the Fed.R.Civ.P. In doing so, the same New York statutes that are in issue here were construed. The question of abstention was not raised and was, therefore, not before the court. This Court’s construction of the New York statutes does not alter the fact that the issue is as yet undecided by New York courts. In this regard, it is proper to recall the words of Justice Frankfurter in Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 499-500, 67 S.Ct. 643, 644-645, 85 L.Ed. 971.

The lower court did deny that the Texas statutes sustained the Commission’s assertion of power. And this represents the view of an able and experienced circuit judge of the circuit which includes Texas and of two capable district judges trained in Texas law. Had we or they no choice in the matter but to decide what is the law of the state, we should hesitate long before rejecting their forecast of Texas law. But no matter how seasoned the judgment of the district court may be, it cannot escape being a forecast rather than a determination. The last word on the meaning of ... the Texas Civil Statutes ... belongs neither to us nor to the district court but to the Supreme Court of Texas. In this situation a federal court of equity is asked to decide an issue by making a tentative answer which may be displaced tomorrow by a state adjudication ____ The reign of law is hardly promoted if an unnecessary ruling of a federal court is thus supplanted by a controlling decision of a state court.
An appeal to the chancellor ... is an appeal to the ‘exercise of the sound discretion, which guides the determination of courts of equity.’... The history of equity jurisdiction is the history of regard for public consequences in employing the extraordinary remedy of the injunction____ Few public interests have a higher claim upon the discretion of a federal chancellor than the avoidance of needless friction with state policies____

Conclusion

For the reasons set forth above, defendants’ motions to transfer this action to the Southern District of New York are granted pursuant to 28 U.S.C. § 1406(a).

      . Although the caption of this action gives one of the named plaintiffs name as Daisy Canaday, that plaintiffs affidavit reveals that the correct spelling of her name is Cannady. Similarly, the accurate spelling of Melinda Panell’s surname is Planell. The correct spelling of these names will be used herein.

      . 28 U.S.C. § 1406(a) provides:
      The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.
      In contrast, § 1404(a) provides:
      For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district . or division where it might have been brought.

      . In addition to the named plaintiffs and their purported class, the Coalition for the Homeless is party to this action. The Coalition alleges that it is a "privately supported not-for-profit corporation which expends its resources in efforts to enforce the rights of New York City’s homeless poor” and that it has been required to expend substantial resources to counteract defendants’ alleged wrongful conduct.

      . The Styron Affidavit does not discuss any IMCs in Richmond County.

      . During the pendency of these motions, plaintiffs informed this Court that additional emergency welfare offices were scheduled to be opened at one location in Kings County and one location in Queens County — both within the Eastern District. Plaintiffs contend that this occurrence bolsters their argument that venue is proper in this District. As set forth in detail, infra, however, I find that venue is not properly laid in this District notwithstanding the intended opening of these new offices. See infra at Sections II.B. and C.

      . References in the text of this opinion to an individual plaintiff are intended to include that plaintiffs family as well. Plaintiff Cannady has one child and a physically disabled husband. Plaintiff Planell has three children and was eight months pregnant at the time this action was commenced. Plaintiff Booker has three children as do plaintiffs Roman and Rodriguez.

      . Arthur Webb was the acting commissioner of DSS at the time the Koster action was commenced. Cesar Perales was appointed as commissioner of that agency since that time. Accordingly, Perales was substituted as a named defendant pursuant to Fed.R.Civ.P. 25(d).

      . The Second Circuit remanded Cheeseman because it found that the action should have been dismissed as moot at the time that the district court rendered its decision. The appellate court therefore did not address the venue issue, although it did characterize the district court’s lengthy discussion of venue as "scholarly.” 623 F.2d at 1391.

      . In the Florida Nursing Home Association case, two separate petitions for certiorari were presented to the Supreme Court. Certiorari was denied as to the petition raising the jurisdictional and venue issues relevant to the instant case. The Supreme Court, however, did entertain the petition which raised the issue of the availability of retroactive relief and Eleventh Amendment immunity, and it was on this issue that the Court reversed the circuit court’s decision. 450 U.S. at 148-99 & n. 2, 101 S.Ct. at 1033-34 and n. 2.

      . The language referring to where the parties seeking benefits "would have received them” could be read either to mean where the plaintiffs here would be assigned to emergency shelter or where they would actually have been sheltered. Although it is technically accurate to say that some members of the purported class would receive benefits, using either definition, in the Eastern District, there appears to be no way to determine where any particular plaintiff would be sheltered. Also, although assignments to emergency shelter could be made in either the Southern or Eastern District, all persons who are denied shelter at the IMCs eventually seek assignment at the EAU in the Southern District.
      Finally, it is noteworthy that in the cases cited by plaintiffs for the proposition that the claim arises where the benefits would be received, the courts found that the benefits "would have been received” where the plaintiffs felt the effect of being denied such benefits and where therefore injured by defendants’ actions. See, e.g., Sanchez v. Pingree, 494 F.Supp. at 70 & n. 3. Citing Leroy, the Sanchez court found it “equally plausible that the locus of this claim should be where plaintiffs were denied their benefits as where the "policy” to do so was decided and is administered. Id. at n. 3. In contrast to this case, plaintiffs in Sanchez were deemed to feel the injury due to an allegedly unconstitutional denial of community care benefits in the district where they resided. Here, however, although many plaintiffs may have last resided in the Eastern District before they became homeless, it is not clear that they would have received the benefits they seek within this district.

      . The three general categories into which the abstention cases fall, as classified by the Court in Colorado River Water Cons. Dist. v. United States, 424 U.S. 800, 814-816, 96 S.Ct. 1236, 1244-1245, 47 L.Ed.2d 483 (1976) are: (1) "cases presenting a federal constitutional issue which might be rooted or presented in a different posture by a state court determination of pertinent state law.” This category is often referred to as "Pullman abstention” from Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941); (2) cases in which "there have been presented difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar.” This category is often referred to as “Burford abstention” from Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943); (3) cases in which "absent bad faith, harassment, or a patently invalid state statute, federal jurisdiction has been invoked for the purpose of restraining state criminal proceedings, state nuisance proceedings antecedent to a criminal prosecution, which are directed at obtaining the closure of places exhibiting obscene films, ... or collection of state taxes.” This category is often referred to as “Younger abstention” from Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).


source: Caselaw Access Project

author: BARRINGTON D. PARKER, District Judge:

license: Public Domain

text:
    Robert K. GOINS, et al., Plaintiffs, v. TEAMSTERS LOCAL 639—EMPLOYERS HEALTH AND PENSION TRUST, et al., Defendants.
    Civ. A. No. 83-2811.
    United States District Court, District of Columbia.
    April 12, 1984.

      Burton D. Fretz, National Senior Citizens Law Center, Washington, D.C., Charles Sabatino, Legal Services of Northern Virginia, Arlington, Va., Neal S. Dudovitz, National Senior Citizens Law Center, Los Angeles, Cal., for plaintiffs.
    Hugh J. Beins, Beins, Axelrod & Osborne, Washington, D.C., for defendants.
   MEMORANDUM ORDER GRANTING SUMMARY JUDGMENT

BARRINGTON D. PARKER, District Judge:

This matter comes before the Court on the defendants’ motion for summary judgment. The defendants who request summary judgment are the Drivers, Chauffeurs & Helpers, Local Union No. 639 (“Union”) and James Woodward, a business agent for the Union. The remaining defendants, the Teamsters Local 639 — Employers Health & Pension Trust (“Local 639 Trust”) and the trustees, are not involved in the pending motion. The plaintiffs are representatives of the estate of Huston Goins, deceased. They claim that Huston Goins, as a participant in the Local 639 Trust, was denied a disability pension as a result of a 1978 amendment to the eligibility requirements which precluded him from receiving these benefits.

The plaintiffs assert three claims against the Union and the Trust: that the Union violated its duty of fair representation by failing to negotiate a fair and equitable pension plan; that Woodward violated the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1140 and 1141 in willfully and deliberately making false statements to Goins concerning his pension rights; and lastly, that Woodward is guilty of common law fraud, deceit, negligence, and breach of trust in connection with these false statements.

The Local 639 Trust is an employee benefit plan as defined in ERISA, 29 U.S.C. § 1001 et seq. In 1972, the plan provided that a participant with five years of credited service would be eligible for monthly disability benefits. It was amended in 1978 to require at least ten years of credited service during the contribution period before a participant could receive monthly disability benefits. In 1978, the trust agreement provided that the Board of Trustees had full authority to define the nature and extent of all disability benefits, and to amend all conditions and qualifications for benefits. The uncontradicted affidavit of Joseph Connors, a trustee of the Local 639 Trust, states that the pension trustees exercised their exclusive power and authority to institute and amend the disability benefit provision in 1978, and that neither the Union nor defendant Woodward played any role in establishing or amending the plan.

By the end of 1977, Huston Goins had accumulated more than five years of continuous participation under the terms of the Trust agreement. When he became disabled in 1979, he was unable to satisfy the more restrictive ten-year requirement imposed by the 1978 amendment. His application for monthly disability benefits was denied on August 20, 1980 and the trustees subsequently denied his appeal from that decision on September 22, 1980.

The plaintiffs filed this law suit on September 22, 1983. The plaintiffs allege that summary judgment cannot be granted in favor of the Union and Woodward because there are two disputed facts. First, they assert that the nature and extent of the Union participation in the 1978 amendment is disputed. Second, they contend that there is an issue of fact as to whether Woodward intentionally provided Goins with false information concerning his eligibility for disability benefits. In this regard, Woodward flatly denies that he told Goins that the ten-year rule was not applicable to employees who had already satisfied the five-year rule.

For the reasons set out below, the Court determines that resolution of the dispositive legal issues renders resolution of these disputed factual issues unnecessary. Accordingly, the defendants’ motion for summary judgment is granted on the claims for relief asserted against the Union and Woodward.

LEGAL ANALYSIS A. Breach of the Duty of Fair Representation

A cause of action for a breach of the duty of fair representation is governed by the six-month statute of limitations for such claims, as set forth in the recent United States Supreme Court decision in Del-Costello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 2285, 76 L.Ed.2d 476 (1983). For statute of limitations purposes, the Court declined to distinguish various claims for breach of the duty of fair representation, and in fact, suggested that all such claims should be treated in a similar fashion. Id., 103 S.Ct. at 2285, 2293-94. Since the plaintiffs’ claim was brought more than six months after Mr. Goins’ cause of action accrued, it is time-barred under DelCostello.

Moreover, judicial willingness to preclude retroactive applications of certain decisions, as set forth in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), does not afford the plaintiffs any protection. First, the Chevron court decided only that a new statute of limitations period should not “be applied retroactively to bar actions filed before the date of its announcement.” Id., 404 U.S. at 99, 92 S.Ct. at 351-52. Since this action was filed after the announcement of the six-month limitations period in DelCostello, the Chevron test is facially inapplicable. Moreover, the circuit courts that have considered the retrospective application of the DelCostello rule have looked at cases pending at the time DelCostello was decided, not cases brought after the DelCostello decision was announced. See, e.g. McNaughton v. Dillingham Corp., 722 F.2d 1459, 1460 (9th Cir.1984).

Second, even if the Chevron test is applied as broadly as plaintiffs suggest, the United States Supreme Court has applied the six-month statute of limitations period to bar suit under circumstances similar to those now before the Court. In DelCostello, the Court applied the just-announced statute of limitations to bar a cause of action which the plaintiff would otherwise have enjoyed under earlier law. Id., 103 S.Ct. at 2287, 2294. In addition, the six-month limitations period has been given retroactive effect by every circuit which has considered the issue, see e.g., Perez v. Dana Corp., Parish Frame Division, 718 F.2d 581, 583 (3rd Cir.1983), with the exception of the Ninth Circuit, in McNaughton, 722 F.2d at 1462.

Third, one of the factors relevant to a finding of nonretroactivity is the reasonableness of the litigant’s reliance on past precedent. Since the plaintiffs’ claims would also have been barred by the 90-day statute of limitations applicable to duty of fair representation claims under the law in this jurisdiction prior to the DelCostello decision, see Orange v. Safeway Stores, Inc., 556 F.Supp. 510 at 513 (D.D.C.1983), aff'd, 725 F.2d 126 (D.C.Cir.1984), the plaintiffs cannot argue that they justifiably relied on past precedent in delaying this action. For the above reasons, the plaintiffs’ fifth claim for relief must fail.

B.

ERISA Claims Against Woodward

1.

29 U.S.C. § 1140 provides that:

[i]t shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan.

The plaintiffs assert that the prohibition against discrimination extends to Woodward’s alleged statements concerning Goins’ entitlement to disability benefits under the Trust. Even if Goins had a right to these benefits, an issue which is not presently before the Court, section 1140 does not encompass this sort of conduct.

The few judicial decisions interpreting section 1140 have enforced the statute against employers who discharged their employees in order to prevent them from receiving health and welfare or pension benefits. See, e.g., Kross v. Western Electric Co., Inc., 701 F.2d 1238, 1242-43 (7th Cir.1983); Bittner v. Sadoff and Rudoy Industries, 490 F.Supp. 534, 535 (E.D.Wis.1980). The discharges of these employees fit the prototypical conduct prohibited by the statute — “discharge^] ... for the purpose of interfering with the attainment of [pension rights].” 29 U.S.C. § 1140. The statute also prohibits discrimination which is equivalent to a constructive discharge, West v. Butler, 621 F.2d 240, 245 (6th Cir.1980), or which involves the use of “economic sanctions or violent reprisals. S.Rep. No. 127, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Ad. News 4639, 4838, 4872.

Woodward’s alleged statement that Goins was guaranteed disability benefits stands in stark contrast to this sort of discrimination. At most, Woodward’s remarks could have lulled Goins into believing that the ten-year requirement did not apply to him. Under these circumstances, the Court declines to find Goins’ conduct actionable under the statute.

2.

Plaintiffs’ assertion of a cause of action under 29 U.S.C. § 1141 lacks merit because this section of the statute is a criminal provision whose enforcement is the exclusive prerogative of the Attorney General. West v. Butler, 621 F.2d at 244; H.R.Rep. No. 533, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Ad. News 4639, 4655; S.Rep. No. 127, 93d Cong., 2d Sess., reprinted in 1974 U.S. Code Cong. & Ad.News 4838, 4871. Accordingly, the plaintiffs cannot assert a private right of action under section 1141, and their claim for relief under this provision must be rejected.

C.

Common Law Claims Against Woodward

The plaintiffs also assert common law claims against Woodward for common law fraud, deceit, negligence and breach of trust, and ask for damages in the amount of $75,000. Plaintiffs seek declaratory and injunctive relief with respect to their remaining claims against the Trust and the trustees, as well as the award of a survivors’ pension to the widow of Huston Goins. Under the rule enunciated in United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966), a court may decide both state and federal claims if they are derived from a common nucleus of operative fact. In this ease, it is questionable whether the plaintiffs’ claims against Woodward are derived from the same set of facts as their claims against the Trust and the trustees. The claims against the Trust and the trustees arise from their actions in amending the Trust in 1978, while the claim against Woodward involves allegedly false statements made under different circumstances.

Even if the plaintiffs’ claims are viewed as arising from a common nucleus of operative facts, the court will nevertheless exercise its discretion to decline pendent jurisdiction. Where the state issues would “predominate [] in terms of proof, of the scope of the issues raised, [and] the comprehensiveness of the remedy sought,” Gibbs, 383 U.S. at 726-27, 86 S.Ct. at 1139, the court may properly decline jurisdiction. Here, the factual and legal issues raised by the state claims vary greatly from the remaining federal claims, and the state damage remedy “might well become the predominant element of the lawsuit.” Bouchet v. National Urban League, Inc., 730 F.2d 799 at 805 (D.C.Cir.1984). Under these circumstances, the Court declines jurisdiction over the plaintiffs’ state claims.

On basis of the foregoing, it is this 12th day of April, 1984,

ORDERED

That the motion of the defendants Union and Woodward for summary judgment is granted as to plaintiffs’ fifth, sixth and seventh claims for relief.

That the fifth and sixth claims for relief are dismissed with prejudice.

That the seventh claim for relief is dismissed without prejudice, allowing the plaintiffs to pursue their claims in the appropriate local forum, should they so elect.

      . Huston Goins never submitted an application for a disability benefit to the Union or to defendant Woodward, the business agent for the Union. His only written communication regarding disability benefits was directed to the trustees.


author: BROWNING, District Judge.

text:
    Walter WICK and Robert Wick, dba Green Valley News and Sun, Plaintiffs, v. TUCSON NEWSPAPER, INC.; Star Publishing Company; and Citizen Publishing Company, Defendants.
    No. Civ. 84-257 TUC-WDB.
    United States District Court, D. Arizona.
    Sept. 5, 1984.
    Supplemental Opinion Jan. 8, 1985.

      John P. Frank, Lewis & Roca, Phoenix, Ariz., Robert 0. Lesher, Tucson, Ariz., for plaintiffs.
    Michael J. Meehan, Thornton E. Robison, Tucson, Ariz., Lawrence W. Boes, New York City, for defendants, Star Publishing.
    Lawrence J. Aldrich, John Stuart Smith, Rochester, N.Y., for defendant, Citizen Publishing Co.
   ORDER

BROWNING, District Judge.

This matter has come on before the Court on the Plaintiffs’ Motion for Partial Summary Judgment (as to Count III of the Complaint) and for Permanent Injunction, and on Defendants’ request for a Rule 56(d) finding. The Court, having considered the oral argument of counsel, the briefs of the parties, and materials submitted on behalf of both parties, took the matter under advisement. The matter now comes on for decision.

The pertinent facts in this matter are that the Plaintiffs are publishers of the Green Valley News & Sun, a biweekly newspaper circulated principally in Green Valley, Arizona. Green Valley, Arizona is a community approximately 25 miles South of Tucson, Arizona, and is identifiable by its own zip code, to-wit: 85614.

Defendants, Arizona Daily Star and the Tucson Citizen are daily newspapers sold and distributed throughout the metropolitan Tucson, Arizona area, including Green Valley. Indeed, both papers are sold throughout Arizona and particularly in Southern Arizona. Single copy as well as subscription sales occur in Green Valley.

Tucson Newspapers, Inc. (TNI) is a corporation operated pursuant to a joint operating agreement between the two daily newspapers. It is owned one-half by Star Publishing Company and one-half by Citizen Publishing Company and employs an advertising sales staff, all the printers, pressmen and other production and maintenance employees responsible for the physical production and distribution of both newspapers, as well as an advertising staff and circulation staff to handle subscriptions and single copy sales. The two daily Tucson newspapers maintain separate reportorial and editorial staffs, which remain wholly separate and apart from each other.

A four-page newsprint jacket appears in the Arizona Daily Star on a weekly basis. It is named THE ROUNDUP. It contains, as filler inside of the jacket, slick material and purely advertising circulars called inserts, preprints, or the like. It is distributed as a part or section of the Arizona Daily Star once a week to all subscribers and single copy purchasers.

The Tucson Citizen prints and distributes the BULLETIN BOARD on an identical basis and in an identical manner.

Representative copies of each have been furnished to the Court and are part of the record herein. The parties urge the Court to find them representative and controlling with regard to the issues hereinafter delineated. The copies provided are publications from July 4, 18, and 25, 1984.

The newsprint portion of THE ROUNDUP and the BULLETIN BOARD contains advertising as well as non-advertising matter. The non-advertising matter is composed of such items as a calendar of current events, feature stories, and other news items. The Court, however, specifically finds that the printed non-advertising content of these 4-page jackets of newsprint, is “news” within the meaning of the Newspaper Preservation Act, 15 U.S.C. § 1801, et seq. It is not this Court’s intention to judge the quality or relative worth of the content of either publication, to judge whether or not it is timely, current, good or bad, current or stale, thought provoking or inane, or otherwise. Those comparisons are not called for in this case and are immaterial to the resolution of the merits of the dispute. For the Court to inject itself into judgments set forth in the immediately preceding sentence would be to inject a First Amendment issue into this case. There is not now any First Amendment issue in this case, as will be pointed out later.

In order to increase advertising revenues and circulation, each of the Tucson daily newspapers distributes the jacket and accompanying material to all of the non-subscribers in the Green Valley zip code area weekly. One week all of such non-subscribers received THE ROUNDUP by mail, together with all of its preprints, inserts and circulars. The following week the same non-subscribers received the BULLETIN BOARD by mail, together with all of its preprints, inserts and circulars. Subscribers in Green Valley, naturally, receive either or both weeklies as part of the entire daily edition of the respective newspapers.

Neither the Star nor the Citizen distributes the entire newspaper free of charge to non-subscribers, but rather only the described sections of the respective newspapers.

Upon learning that the defendant newspapers, through defendant Tucson Newspapers, Inc., intended the described distribution to non-subscribers, one of the plaintiffs contacted those newspapers and urged them not to go ahead with the non-subscriber distribution as outlined above. The defendants refused, despite the plaintiffs stated intention to bring suit if they proceeded with the distribution. This suit followed.

The defendants claimed that the plaintiffs’ attempt to discourage defendants from undertaking the distribution of THE ROUNDUP and BULLETIN BOARD in Green Valley, as described above, constitutes collusion and is a defense against any anti-trust enforcement which might be imposed upon the defendants by virtue of their conduct. They liken the collusion to the doctrine of “unclean hands.” This Court stated, at the hearing on an earlier motion, that if it was determined that the doctrine of unclean hands was a defense to the plaintiffs’ motion herein, relief would be denied. The Court does not find that the doctrine of unclean hands or the alleged collusion constitute a defense to antitrust violation and enforcement herein. Memorex Corp. v. International Business Machine Corp., 555 F.2d 1379 (9th Cir.1977).

The Court finds that the Green Valley News is economically dependent upon its subscribers and advertisers for its continued existence.

The Court further finds that advertisers whose advertisements are distributed through the means of the BULLETIN BOARD and ROUNDUP are the same advertisers, in some cases, that the Green Valley News seeks to attract.

The Court further finds that the Tucson Daily Citizen and Arizona Daily Star are both “newspaper publications” as that term is defined in 15 U.S.C. § 1802(4).

The Court further finds that TNI is a “joint newspaper operating arrangement” between the Arizona Daily Star and Tucson Citizen as the same is defined in 15 U.S.C. § 1802(2).

The defendants submit affidavits which are here summarized and discussed. An affidavit by one of their counsel, Lawrence J. Eldridge, Esq., is not discussed as it is not found to contain probative material germane to the disposition of this proceeding.

The affidavit of Mr. Jonathon I. Kamman, managing editor of the Arizona Daily Star, states that he does not believe that THE ROUNDUP has ever had less than approximately 40% news and editorial content, as compared with 60% advertising content. His statement, however, must only take into consideration advertising content printed by Tucson Newspapers, Inc. Indeed, in this case, it is patently clear that the material inserted in the “jacket” exceeds 50% of the whole.

In reviewing THE ROUNDUP and the BULLETIN BOARD and their insert preprint and advertising circular material, it is the finding of this Court that they contain less than 30% of news or editorial material and in excess of 70% pure advertising.

Mr. Dale Walton, managing editor of the Tucson Citizen, states, in essence, that the content of the BULLETIN BOARD was meant to be and is community news. He concludes that this was done by making it a separate part of the overall newspaper.

Mr. Thomas Jackson, general manager of Tucson Newspapers, Inc., filed an affidavit noting some of the aforesaid facts, together with the fact that the newspapers are now being mailed pursuant to a second class permit. He states that the TNI distribution of THE ROUNDUP and the BULLETIN BOARD to non-subscribers was due to advertise requests and pressure for wider distribution. He also stated that the advertisers had switched to “preprint” from “run of the press”-type advertising contained in the body of the newspaper itself. Mr. Jackson further states that it was not his intention to destroy the Green Valley News and that he communicated this to an official of the Green Valley News. He concludes, though the Court does not, that the discussion he had with the representative of the Green Valley News was an offer to engage in collusion.

Mr. Jackson cites the Court to an appendix to his affidavit, an article in a recent issue of Advertising Age dated June 14, 1984, as authoritative. The article is entitled “Newspapers, Shared Mail Digging In.” Page 2 of that article contains a box “Defining the Terms.” One of the terms appearing in the glossary is the term “shopper” which is defined as follows:

“Shopper: These free distribution circulars look like newspapers, but generally have little editorial content, running between 75% and 100% advertising.”

The Court finds that ROUNDUP and BULLETIN BOARD, with the material which they surround, are “shoppers” or “shopping newspapers” as the same are referred to in Advertising Age and as the same are referred to in the legislative history of 15 U.S.C. § 1802.

In United States v. Citizen Publishing Co., 280 F.Supp. 978 (D.Ariz.1968), Judge James A. Walsh of this Court, concluded that the joint operating agreement between Citizen Publishing and Star Publishing was a per se illegal violation of Section 1 of the Sherman Act, 15 U.S.C. § 1 (unreasonable restraint of trade), and Section 2 of the Sherman Act, 15 U.S.C. § 2 (monopoly). Other portions of that comprehensive judgment are immaterial to these proceedings.

The United States Supreme Court affirmed in Citizen Publishing Co. v. United States, 394 U.S. 131, 89 S.Ct. 927, 22 L.Ed.2d 148 (1969). On January 26, 1970, the District Court amended its Order and on September 29, 1970 the final Order was entered amending the Judgment by the District Court to conform to the Newspaper Preservation Act. In response to the District Court’s 1968 judgment, and the affirmance thereof by the United States Supreme Court, the Congress passed a bill entitled The Newspaper Preservation Act (15 U.S.C. §§ 1801-1804) with the stated purpose of preserving the news gathering and editorial independence of two newspapers, one of which was failing as of a certain date to the point that it could not survive without being a party to a joint operating agreement. The Congress felt that the salutary effect of two independent and competitive editorial voices in the same community justified an exception to the anti-trust violations aforesaid. Nowhere does this Act state that a joint operating agreement is not a violation of the Sherman or Clayton anti-trust Acts. It merely provides an exemption from the operation of those acts for newspapers, under certain conditions.

Following the July, 1970 enactment of the “Newspaper Preservation Act” the District Court found that the previous Order for modification of the joint operating agreement should be deleted and that the restraining order and injunction set forth in the previous order should be deleted, together with a previous restriction in the Order regarding the approval of agreements and by-laws of the three corporate entities aforesaid. All of those matters had become moot with the passage of the Newspaper Preservation Act. The Court specifically found that except as to those amendments, all other paragraphs of the January 31, 1968 Judgment and Decree of the District Court should remain in full force and effect.

Both the plaintiffs and the defendants rely upon 15 U.S.C. § 1802(4) in support of their position that THE ROUNDUP and BULLETIN BOARD sections of the Star and Citizen come within its meanings and terms. That section reads as follows:

The term “newspaper publication” means a publication produced on newsprint paper which is published in one or more issues weekly (including as one publication any daily newspaper and any Sunday newspaper published by the same owner in the same city, community, or metropolitan area), and in which a substantial portion of the content is devoted to the dissemination of news and editorial opinion.

In looking at the legislative history of this Act, it is clear that the Congress meant to include only those publications which were, as it states, devoting a substantial portion of the content to the dissemination of news and editorial opinion. See Senate Report No. 91-535, Congress, First Session, November 18, 1969 on S. 1520 wherein it is stated:

The definition of “newspaper publication” has been drawn to exclude magazines and other “slick paper” publications as well as free circulation “shopping newspapers” and advertising circulars. Unless a reasonable portion of the publication eligible for an exemption is devoted to news dissemination and the intent of the bill — to give financial stability to an editorial voice — cannot be served. There can be no editorial voice without a substantial amount of editorial material.

The defendants seem to urge on the Court that the Court find that the full edition of the Arizona Daily Star and the Tucson Citizen are newspaper publications within the meaning of '§ 1802(4) aforesaid. The Court so finds. Both newspapers contain significant amounts of national, international, and local news and significant and often divergent editorial opinions. They also contain totally legitimate advertising information both in the form of preprints and circulars and in “run of the press” advertising. The plaintiff, however, would have the Court consider, under the above definition of newspaper publication, only THE ROUNDUP and BULLETIN BOARD portions of the Arizona Daily Star and Citizen, together with their preprinted inserts. The approach suggested by the plaintiffs is adopted by the Court because of the fact that the entire publication is not distributed to non-subscribers in Green Valley, but only that portion set forth above.

We turn now to the previously cited editions of THE ROUNDUP and BULLETIN BOARD to determine whether or not they pass muster in light of § 1802(4) and its legislative history. The first requirement under that Section is that it be produced on newsprint paper. As noted before, both publications are partially produced on newsprint paper. The second requirement is that it be published in one or more issues weekly. The Court finds that, as the term “published” is used in the aforesaid statute, neither THE ROUNDUP nor BULLETIN BOARD is published weekly. Rather they are published biweekly. The term “publication,” in order to have any meaning at all within the context of the statute, must include distribution or dissemination. Both THE ROUNDUP and BULLETIN BOARD are disseminated by mail on a biweekly basis. However, it is not only upon this distinction that the Court bases its conclusions herein. The essence of this matter is whether either ROUNDUP or BULLETIN BOARD is such that “... a substantial portion of the content is devoted to the dissemination of news and editorial opinion.” The Court finds that such is not the case. The Court finds that ROUNDUP and BULLETIN BOARD, while containing news and editorial opinion, and while being publications which require editorial judgments in their compilation, do not contain a substantial portion of news reporting or editorial opinion as is contemplated by 15 U.S.C. § 1802(4). They must be considered on their own two feet (not by the dailies of which they are but a part), and when so considered,, it is apparent that their principal purpose is to serve as a vehicle by which advertising circulars, preprints and slick paper advertising materials can be distributed. The Court does not so find based strictly or solely on a mathematical computation, as Advertising Age would have one do, of what is news and editorial content versus advertising content, but rather on the entirety of the publication and the purpose of the publisher as to whether it is distributing primarily news and editorial opinion or primarily advertising matter. The Court concludes that the latter is the case and that therefore ROUNDUP and BULLETIN BOARD are not newspaper publications as the same is defined in § 1802(4). The Court further finds that these publications, as distributed in Green Valley to non-subscribers, constitute “shopping newspapers” which were not intended to be included among those activities of a joint operating agreement exempt from the operation of anti-trust laws. The only thing exempted by the Newspaper Preservation Act from the operation of those laws is a newspaper publication as the same is defined in § 1802(4). That is a limited exemption and unless it is found to be applicable, the joint operation of these two daily newspapers constitutes a violation of the Sherman Act, as the same was found and stated in the extant Judgment of the District Court. Immunity from anti-trust laws is not lightly implied. California v. Federal Power Commission, 369 U.S. 482, 82 S.Ct. 901, 8 L.Ed.2d 54 (1962). Indeed, the Supreme Court has construed anti-trust exemptions as those that must be narrowly construed. Group Life & Health Insurance Co. v. Royal Drug Co., 440 U.S. 205, 231, 99 S.Ct. 1067, 1083, 59 L.Ed.2d 261, 280 (1979). It seems clear from the legislative history that the intent of Congress was that the provisions of the Newspaper Preservation Act be narrowly construed and to be an exemption only within the strict delineated definitions therein contained.

Consideration should be given to the affidavit of George Ridge, a Journalism Professor and law school graduate, wherein Mr. Ridge recites his experience and the fact that he has served as an expert witness in libel and press related litigation, but never for or against either of the daily newspapers herein involved. Mr. Ridge states that he is aware of the general content and makeup of both daily newspapers. He opines that they contain substantial news and editorial opinion. The Court agrees. It is Mr. Ridge’s opinion, from examination of the quoted issues of ROUNDUP and BULLETIN BOARD, that they, too, have substantial portions devoted to news and editorial opinion. That conclusory statement is rejected by the Court as contrary to the evidence submitted herein.

Where contradictory inferences may be drawn from undisputed evidentiary facts, summary judgment is not normally appropriate. United States v. Perry, 431 F.2d 1020, 1022 (9th Cir.1970). However, where the Judge is the ultimate trier of fact and a trial would not enhance the Court’s ability to draw inferences and conclusions from undisputed and immutable facts, as the parties urge is the case here, then the Court is free to draw such inferences and conclusions. Nunez v. Superior Oil Co., 572 F.2d 1119 (5th Cir.1978). See also Swart v. United States, 568 F.Supp. 763, aff'd, 714 F.2d 154 (9th Cir.1983).

Having determined that the 1968 finding of this Court that violations of the Sherman and Clayton Act existed, is extant, and having found that the publication of ROUNDUP and BULLETIN BOARD, issued separately and without being a portion of the entire newspaper, is an activity not exempted by 15 U.S.C. §§ 1801 et seq., the Court now turns to the question of summary judgment injunction and' the question of relief.

The question involving relief, by way of preliminary or permanent injunction in antitrust cases, has been addressed in the case of Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969). The argument was made in Zenith that the party requesting injunctive relief had failed to prove the actual fact of injury. However, the Court in Zenith noted that § 16 of the Clayton Act (15 U.S.C. § 26) makes available equitable remedies to private parties and invokes traditional principles of equity and authorizes injunctive relief upon the demonstration of threatened injury. The Court specifically held that injunctive relief is “characteristically available even though the plaintiff has not yet suffered actual injury” and that all that is required is a demonstration of “a significant threat of injury from an impending violation of the anti-trust laws or from a contemporary violation likely to continue or recur.” 395 U.S. at 130, 89 S.Ct. at 1580, 23 L.Ed.2d at 152. The Court finds, in the case at bar, that there is a significant threat of injury to the Green Valley News from a contemporary violation which is likely to continue or recur. In Benda v. Grand Lodge of International Association of Machinists and Aerospace Workers, 584 F.2d 308 (9th Cir.1978) the court set down the standard to be utilized in determining the propriety of preliminary injunctive relief. The court there articulated that standard in the following way:

One moving for a preliminary injunction assumes the burden of demonstrating either a combination of probable success and the possibility of irreparable injury or that serious questions are raised and balance of hardships tips sharply in his favor. 584 F.2d at 315.

This alternate test has been used many times previously and the Benda court noted that they are not really two entirely separate tests, but are merely extremes of a single continuum. The court went on to hold that the critical element in determining the test to be applied is the relative hardship of the parties.

Turning to the case at bar, and applying the Benda standard, it is apparent that the conduct of the defendants, inasmuch as it involves the same joint operating agreement at issue in Citizen Publishing Co., is violative of the Sherman Act as found by the District Court in 1968. However, because of Congress’ 1970 enactment of the Newspaper Preservation Act, supra, certain acts constituting anti-trust violations were exempted from the reaches of the aforesaid anti-trust acts. Where the clear intent of the Congress cannot be delineated or ascertained from reference to the statutory language itself reliance on the legislative history becomes necessary. Here the legislative history reveals that the distribution of slick paper, shopping newspapers or advertising circulars, under a joint operating arrangement, and separate from an editorial and news reportorial output, is prohibited.

Plaintiff has demonstrated a high probability of success on the merits and has shown, by virtue of the relevant market and respective sizes of the plaintiffs and defendants, the possibility of irreparable injury.

Applying the second prong of the Benda standard, it is equally clear that “serious questions” are definitely raised by the allegations of Count Three of the Complaint and the evidence proffered in support of the Motion. One must then turn to the balance of hardships and it is apparent to this Court, on the record before it, that the balance of hardships tips sharply in favor of plaintiffs. Plaintiffs are not operating a daily newspaper, while defendants are, and plaintiffs are not able to provide the advertising penetration which defendants are through the operation of their daily newspapers. Plaintiffs must then rely upon advertisers in a biweekly newspaper in a limited market. This puts them at a competitive disadvantage which is severely compounded by the mailing to defendants’ non-subscribers of a publication that is not substantially devoted to editorial and news content. There has been demonstrated, and the Court so finds, a threatened injury to the plaintiffs which would have a much more significant impact on their economic viability if an injunction did not issue than the adverse impact upon defendants in the event an injunction should issue. See also Los Angeles Memorial Coliseum Commission v. National Football League, 634 F.2d 1197 (9th Cir.1980). Injunctive relief is not new or novel with respect to antitrust relief involving competing newspapers. See, e.g., Sun Newspapers, Inc. v. Omaha World Herald Company, et al., 713 F.2d 428 (8th Cir.1983).

Defendants urge that the issuance of an injunction herein will amount to a prior restraint on freedom of speech or expression, which violates the First Amendment of The United States Constitution. However, neither news gathering nor news or editorial dissemination is being regulated by this preliminary injunction. Indeed, it has been specifically held that the antitrust laws may be used by government to protect the guarantees of the First Amendment. Associated Press v. United States, 326 U.S. 1, 20, 65 S.Ct. 1416, 1424, 89 L.Ed. 2013 (1945); Citizen Publishing Co. v. U.S., supra, 394 U.S. at 139-40, 89 S.Ct. at 931-32, 22 L.Ed.2d at 156-57.

The defendants argue, persuasively, that there are new competitive forces in the marketplace and economic pressures from new quarters in the advertising print media as well as other aggressive competition for advertising dollars from other media, and thus a different climate exists than that which existed in 1968. This may well be so and it may be that a difference in kind, not degree, exists as to those forces and factors. However, absent constitutional dictates, this Court is not the forum for carving out exemptions to the clear congressional mandates of the Sherman and Clayton Acts. It may be in the public interest for Congress to broaden the Newspaper Preservation Act to permit the conduct found here to be violative of the antitrust laws, but such relief cannot be afforded by this Court.

In accordance with the findings of fact and conclusions of law aforesaid,

IT IS ORDERED that pending completion of the trial and entry of the final judgment, defendants, all subsidiaries of any of the defendants, all subsequently acquired subsidiaries of any of the defendants, their officers, agents, servants, employees and attorneys and those persons in active concert or participation with them who receive actual notice of this order by personal service or otherwise, are prohibited from distributing that portion of the Arizona Daily Star and Tucson Citizen referred to as ROUNDUP and BULLETIN BOARD respectively, and the advertising material they provide the jacket for, to non-subscribers of either one of said papers by mail, delivery or otherwise within zip code 85614, being the community of Green Valley, Arizona, and further from distributing any slick paper, advertising circular, shopper or shopping newspaper or other advertising material by direct mail, home delivery, or otherwise.

IT IS FURTHER ORDERED that nothing herein shall prohibit the defendants from selling, delivering or mailing the Arizona Daily Star or Tucson Citizen, in their entirety, to subscribers or purchasers in the said zip code area, being the Green Valley community. Defendants shall not be restricted or enjoined from otherwise attempting to increase circulation and/or obtain advertisers in said community.

Because of the Court’s finding that there is no actual proof of specific damage within a relevant market area and because of the allegations of Count Three which involve factual determinations concerning relevant markets, monoply power, predatory pricing and other allegations contained in Counts One and Two and incorporated into Count Three (see paragraph 25, Plaintiff’s Complaint), Partial Summary Judgment is inappropriate and the Motion for Partial Summary Judgment is denied.

SUPPLEMENTAL ORDER

This matter is before the Court on re-briefing and reargument on plaintiffs’ motion for partial summary judgment, defendants’ motion for summary judgment, and on the plaintiff’s motion for a permanent injunction or, in the alternative, for declaratory relief. Following argument, the Court took the matter under advisement, and it is now on for decision.

The plaintiffs’ motion to amend to delete Paragraph One of Count Three is granted. The defendants’ motion for summary judgment is denied. The parties are granted leave to renew the motions for partial or total summary judgment, or to seek other relief, following a reasonable time for discovery herein, such discovery deadlines to be set at the Court’s status conference.

The original order of the Court herein, date September 5,1984, shall remain in full force and effect except to the extent that this Supplemental Order modifies it.

In its original Order, the Court found that the publications ROUNDUP and BULLETIN BOARD were being distributed with a substantial amount of slick paper advertising inserts. These inserts contained no news or editorial information, but were merely contained within the four-page jacket which did contain news information and was printed on newsprint. The Court originally found that these papers were “shopping newspapers” as the same was defined in the Newspaper Preservation Act and in the legislative history attendant upon the enactment of the Newspaper Preservation Act. (See September 5, 1984 Order).

On the initial consideration of this matter the plaintiff filed, without objection, exhibits which the Court found showed that the primary or principal nature of the jacket and inserts was advertising, not news or editorial dissemination. The Court further found that the exhibits were representative of jackets and inserts being distributed in Green Valley. (See September 5, 1984 Order). After a preliminary injunction was issued by this Court, defendants filed an Emergency Motion for Clarification of Order and Stay Pending Appeal, together with an affidavit in support thereof. Neither made any attempt to correct or contest the above factual findings.

The Court is now advised by counsel that, contrary to the above, the publication of ROUNDUP and BULLETIN BOARD is being distributed in Green Valley, almost uniformly, without any slick paper inserts.

Therefore, the prior finding of the Court that there was a contemporary violation of the antitrust laws (p. 14, September 5, 1984 Order) which was likely to recur is inaccurate as there has been no violation to date. Further, the Court now finds, for reasons and on the authority set forth in the September 5, 1984 Order, that ROUNDUP and BULLETIN BOARD, as distributed in Green Valley, are not “shopping newspapers.”

It is significant that counsel for defendants admitted at the oral argument that, were the defendants able to obtain advertisers who wished to use the ROUNDUP and BULLETIN BOARD as a means of disseminating slick paper or other shopper advertisement material, they would readily do so. This, however, rather than amounting to a threat of injury, as opposed to a threat of distribution, seems to show that during the over some seven months of distribution, the defendants have been unable to make the publications ROUNDUP and BULLETIN BOARD attractive to advertisers. This may well be, as defendants suggest, because of the high circulation figures of the plaintiff Green Valley News. Thus the original Order must be amended because we are now faced with a “threat” of something which may never occur. And insofar as the jackets themselves are concerned, this Court has previously found, and reaffirms, that the same are newspaper publications within the meaning of 15 U.S.C. 1802(4).

The Court finds that the portion of ROUNDUP and BULLETIN BOARD printed on newsprint and referred to in both this and the Court’s prior opinion as a “jacket” is a “newspaper publication” within the meaning of 15 U.S.C. § 1802(4), and is not a “shopping newspaper” in its present form. It is thus exempt from the antitrust laws.

The plaintiffs urge that these newspapers are, without question, “shoppers.” That has been dealt with in the original order but the new factual material conclusively shows that what is being distributed in Green Valley is not a “shopper.” It has the potential of becoming a shopper, and if it does, the plaintiffs are not precluded from returning to this Court for appropriate injunctive or other relief.

However, the Court finds that this may never happen, and in fact, all reasonable intendments from the evidence are that it will not happen. Thus, an injunction by this Court, or other finding attendant on summary judgment, is premature. The Court further notes that the injunction sought here would be most difficult to adjudge in that the format and content of BULLETIN BOARD and ROUNDUP could change, even if they were to include slick material advertising in the future. Thus, the Court would be faced with judging the primary or principal purpose of the distribution, as well as the content thereof, and this would necessarily involve considerations interpreting the First Amendment to the United States Constitution.

Because the original findings on page six of the Court’s Order concerning the content of the BULLETIN BOARD and ROUNDUP were based upon the erroneous assumption that those publications were being distributed in Green Valley with inserts, those original findings are hereby amended consistent with this Supplemental Order. Accordingly, the plaintiffs’ motion for permanent injunction and for partial summary judgment is denied.

The Court will, within two weeks, set a status conference at which time discovery deadlines will be discussed and set and the matter can proceed apace on all counts.