author: MORAN, District Judge.

text:
    Robert J. ADAMS, Jr., Lawrence William Korrub, Tom O’Connell Holstein and Robert E. McKenzie, Plaintiffs, v. ATTORNEY REGISTRATION AND DISCIPLINARY COMMISSION OF the SUPREME COURT OF ILLINOIS, and Carl H. Rolewick, its Administrator, Defendants. Irwin ZALUTSKY and Ronald Pinsky, Individually and as a Professional Corporation, Plaintiffs, v. ATTORNEY REGISTRATION AND DISCIPLINARY COMMISSION OF the SUPREME COURT OF ILLINOIS, and Carl H. Rolewick, its Administrator, Defendants. Melvin James KAPLAN, Plaintiff, v. ATTORNEY REGISTRATION AND DISCIPLINARY COMMISSION OF the SUPREME COURT OF ILLINOIS, and Carl H. Rolewick, its Administrator, Defendants. ATTORNEY REGISTRATION AND DISCIPLINARY COMMISSION and Carl H. Rolewick, Administrator, Petitioners, v. Robert J. ADAMS, Jr., Lawrence William Korrub, Tom O’Connell Holstein and Robert E. McKenzie, Respondents.
    Nos. 84 C 3548, 84 C 4771, 84 C 5179 and 84 C 5711.
    United States District Court, N.D. Illinois, E.D.
    Dec. 4, 1984.

      Richard W. Cosby, Dozoryst, Cosby & Brustein, Harvey Sussman, Sussman & Hertzberg, Chicago, Ill., for plaintiffs.
    John C. O’Malley, Theresa M. Gronkiewicz, Atty. Registration & Disciplinary Com’n, Chicago, Ill., for defendants.
   MEMORANDUM AND ORDER

MORAN, District Judge.

I. Background

This is an action challenging the constitutionality of an Illinois rule of professional responsibility governing the initiation of contact between an attorney and a potential client. The rule allows initiation of contact by attorneys through

written communication distributed generally to persons not known in a specific matter to require such legal services as the lawyer offers to provide but who in general might find such services to be useful____

Illinois Disciplinary Rule 2-103(b)(2) (1984). This rule became effective on May 1, 1984. Plaintiffs are attorneys who participate in direct mail advertising to individuals whom plaintiffs believe may be in need of a lawyer’s services. The names of the individuals are taken from certain published lists. Plaintiffs filed suit on April 25, 1984 against the administrator and members of the Attorney Registration Disciplinary Commission of the Supreme Court of Illinois, seeking a declaration that the rule is unconstitutional and an injunction against enforcement of the rule.

On April 26, 1984, this court in effect granted plaintiffs emergency motion for a temporary restraining order. Without any comment on the merits of the action, the court allowed enforcement of the old, but not the new, rule against the named plaintiffs, consistent with whatever the Commission policy was prior to the filing of the instant action. On May 9, 1984, this court heard arguments on plaintiff’s preliminary injunction motion. The court again refused to rule on the merits of the action, noting that this was an area of special interest to the State, that principles of comity and federalism counseled against a coercive order by a federal court in this area, and that federal intervention in this area should only be considered after state court adjudication of the issue. The Commission agreed to refrain from relying upon the new rule to seek sanctions against the plaintiffs, for the time being, and no coercive order was entered. It also agreed to report the proceedings to the Illinois Supreme Court Committee on Professional Responsibility for its consideration. On June 8, 1984, counsel for defendant reported that the Committee had refused to consider any recommended changes in the new rule, and the Commission therefore sought additional time to file a declaratory action before the Illinois Supreme Court. The agreed abstention on enforcing the new rule was maintained and the case was held over until the Supreme Court decided whether or not to take the action. On June 25, 1984, the Supreme Court of Illinois allowed petitioner’s motion for an original declaratory action in that court pursuant to Supreme Court Rule 381. Ill.Rev.Stat. ch. 110A, § 381. Plaintiffs, respondents in the declaratory action, filed a petition for removal pursuant to 28 U.S.C. § 1441. Presently before the court is defendants’ motion to remand the state court proceedings and to dismiss or stay the federal proceedings.

II. Remand

Defendant seeks remand of the Supreme Court declaratory action removed to this court. Generally an action is removable only if the action is within a district court’s original jurisdiction. See 28 U.S.C. § 1441. See also People of the State of Illinois v. Kerr-McGee Chemical Corp., 677 F.2d 571, 574 (7th Cir.), cert. denied, 459 U.S. 1049, 103 S.Ct. 469, 74 L.Ed.2d 618 (1982); Olsen v. Olsen, 580 F.Supp. 1569, 1572 (N.D.Ind.1984). Defendant argues that the declaratory action was not originally within this court’s jurisdiction. It claims the constitutional issues raised could only have been interposed as a defense and removal was therefore improper. See People of the State of Illinois v. General Electric Co., 683 F.2d 206, 208 (7th Cir. 1982), cert. denied, 461 U.S. 913, 103 S.Ct. 1891, 77 L.Ed.2d 282 (1983).

Before turning to a discussion of that contention, it may be helpful to review further the present posture of the controversy. When the suit was first brought here the new rule was about to become effective. There is no real dispute that the past practices of the plaintiffs would violate the new rule, and that they had every intention of continuing those practices but for the new rule. The Commission is obligated to enforce the new rule, and it has evidenced every intention of doing so if it can. There was an actual case or controversy; there was no present violation and, accordingly, no basis for disciplinary action under the new rule (and whatever the plaintiffs have since done is pursuant to the agreed protection of an agreement not to seek sanctions under the new rule for their practices in the interim).

This Court invited the Commission to invite the Committee to reconsider the matter, thus providing a means by which the Illinois Supreme Court could have the subject matter, the new rule, before it for further review. While that procedure did not neatly fit into any jurisdictional pigeonhole, it did accord with the notion that important state interests are implicated and that comity considerations should cause a federal court to proceed hesitantly. See Middlesex Ethics Commission v. Garden State Bar Association, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982). The Commission accepted that invitation; the Committee did not. The Commission then did the only thing it could do: bring an action in the Illinois Supreme Court which was the converse of plaintiffs’ coercive action here and which, indeed, was what one would expect to be filed as a counterclaim here.

The Commission’s declaratory action seeks a ruling that the promulgation of Rule 2-103(b)(2) “is an appropriate exercise of the judicial power of the State of Illinois and a constitutional regulation of commercial speech by attorneys.” On its face, that action raises significant constitutional questions. That is its purpose. “Whether a state action for a declaratory judgment is removable to federal court is determined by reference to the character of the threatened action. If it is inevitably federal in nature, then federal jurisdiction exists.” Hunter Douglas, Inc. v. Sheet Metal Workers International Association, Local 159, 714 F.2d 342, 345 (4th Cir.1983). See Arden-Mayfair, Inc. v. Louart Corp., 434 F.Supp. 580, 582-84 (D.Del.1977); 10A C. Wright, A. Miller, M. Kane, Federal Practice & Procedure, § 2766 at 745 (2d ed. 1983).

In People of the State of Illinois v. General Electric Co., supra, the federal action sought declaratory relief and the subsequent state action sought coercive relief. The Court concluded that the removal of the second action was improvident since it rested upon state law, with the constitutional questions arising only by way of defense. The state action here does not, however, seek enforcement of the new rule; it seeks an affirmative declaration of constitutionality. Perhaps it was so framed because a claim for prospective relief, avoiding as it does the administrative procedures mandated by Supreme Court Rules 751-773, and raising factual questions respecting precisely what plaintiffs intend to do, is beyond the ambit of Rule 381. In any event, it is the constitutional issues that are the core of the Commission’s action, and the action is, therefore, removable.

Remand of a suit after removal to federal court is controlled by 28 U.S.C. § 1447(c). See Cook v. Weber, 698 F.2d 907, 909 (7th Cir.1983). That statute allows remand if “the case was removed improvidently and without jurisdiction.” 28 U.S.C. § 1447(c). Discretionary reasons for remand not authorized by the statute are not a proper basis for remand. Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 342-45, 96 S.Ct. 584, 588-90, 46 L.Ed.2d 542 (1976). The court has already stated that a proper jurisdictional basis existed and that all non-jurisdictional requirements for removal have apparently been satisfied. See Ryan v. State Board of Elections of the State of Illinois, 661 F.2d 1130, 1133 (7th Cir.1982). A discretionary exercise of the doctrine of abstention is not a proper basis for remand. Id. at 1134. Remand cannot, therefore, be ordered.

III. Abstention

Because this court is unable to remand that declaratory action to state court, abstention is not appropriate. There is no state proceeding towards which this court can show deference. It might be argued, however, that this court could conceivably stay this action further to allow defendant to bring a state action seeking prospective relief against plaintiffs based upon Rule 2-103(b)(2). Such an action would be based on state law, with federal claims interposed as defenses only, and thus would not be removable. The court then might be able to abstain in deference to that state action. Even if such a proceeding existed, however, abstention would not be an appropriate basis for this court to ignore the “virtually unflagging obligation of the federal court to exércise the jurisdiction given them.” See Colorado River Water Conservation District v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976).

The reasons abstention is attractive are clear. The Supreme Court has emphasized the importance of state interests in regulating the bar.

The [state] has an extremely important interest in maintaining and assuring the professional conduct of the attorneys it licenses. States traditionally have exercised extension control over the professional conduct of attorneys.

Middlesex Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 434, 102 S.Ct. 2515, 2522-23, 73 L.Ed.2d 116 (1982). The regulation of attorneys is essential to the primary governmental function of administering justice and at the core of the state’s power to protect the public. Bates v. State Bar of Arizona, 433 U.S. 350, 361-62, 97 S.Ct. 2691, 2697-98, 53 L.Ed.2d 810 (1977). The notion of comity, that is, “a proper respect for state functions, a recognition of the fact that the entire country is made of a Union of separate state governments, and a continuance of a belief that the National Government will fare best if States and their institutions are left free to perform their separate functions in their separate ways,” Younger v. Harris, 401 U.S. 37, 44, 91 S.Ct. 746, 750, 27 L.Ed.2d 669 (1971), counsels a federal court against interfering in a state’s regulation of its bar. This is especially so when, as here, the state judiciary has had no opportunity in an adversary proceeding to rule on plaintiff’s constitutional claims. The issue before the court is precisely the type of issue at which the state courts should get a first shot.

Abstention, however, is a narrow exception to the duty of a federal court to adjudicate a controversy before it and is justified only in exceptional circumstances. See County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-89, 79 S.Ct. 1060, 1062-63, 3 L.Ed.2d 1163 (1959). The Supreme Court has recognized three types of abstention, based on deference to state interests. See Ryan v. State Board of Elections of the State of Illinois, 661 F.2d at 1135. Abstaining in this case would fit none of the recognized types of abstention.

A. Younger

Plaintiffs claim that the type of abstention in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), is appropriate in this case. Younger abstention was recently applied to state bar disciplinary hearings in Middlesex Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1981). It must be noted, however, that the proceeding in Middlesex followed an alleged violation of disciplinary rules. In fact, the Supreme Court has only applied Younger in cases where a state enforcement proceeding followed an alleged violation of a state statute or rule, even if only in civil proceedings. See e.g., Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (enforcement of nuisance statute after alleged violation); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) (judicial contempt proceeding after alleged violation); Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977) (civil suit seeking return of money fraudulently obtained).

The Seventh Circuit has explicitly required some sort of violation and the existence of subsequent enforcement proceedings for a Younger abstention to be allowed. In People of the State of Illinois v. General Electric Co., 683 F.2d 206 (7th Cir.1982), cert. denied, 461 U.S. 913, 103 S.Ct. 1891, 77 L.Ed. 282 (1983), the Seventh Circuit held that Younger does not require abstention where there has been no violation of state law. In that case the federal plaintiff brought a declaratory action alleging that a certain state law was unconstitutional. The federal defendant, the state, subsequently filed an action in state court seeking an injunction against the federal plaintiffs predicated upon the statute. The Seventh Circuit held that removal of the state action was improper. The court then refused to apply the Younger doctrine to the federal case.

[T]he federal plaintiffs in the present case did not violate state law, so the state could not have brought a penalty action against them. The state’s interest in maintaining law and order through enforcement of its penal statutes was not impaired by the federal lawsuit and the principle of the Younger case is therefore inapplicable.

Id. at 212. In Ciotti v. Cook County, 712 F.2d 312 (7th Cir.1983), the court clarified the General Electric gloss on Younger. It stated that for a federal plaintiff to be assured a federal forum, the plaintiff must (1) satisfy the jurisdictional requirements; (2) bring the action before violating the law; and (3) “either refrain from violating the statute during the pendency of the federal action or obtain an injunction against state enforcement of the statute.” Id. at 314.

The court in General Electric was specifically concerned with the situation that would occur here if the court allowed an action for prospective relief to form the basis for a Younger abstention.

[T]he state argues, as an alternative ground for dismissal of the federal suit, that the district court, even if it had jurisdiction, should have abstained from exercising it and forced the companies to litigate exclusively in the state courts. There must be something wrong with this argument, because if it were accepted it would prevent people from ever challenging the constitutionality of state legislation in federal court. Every time someone brought a suit to have a state law declared unconstitutional the state would immediately file an action in state court to enjoin violation of the statute and then move the federal district court to stay or dismiss the federal suit, thereby forcing the federal plaintiff to litigate his federal claims by way of defense in the state court action.

683 F.2d at 212-13. In the present case plaintiffs chose to litigate their constitutional claims in the federal court. They had not, at the time of filing, violated the disciplinary rule and, after the hearing on April 26, 1984, enforcement of the rule against them was deferred. In this circuit at least, the state cannot now bring an enforcement action that would require this court to abstain.

B. Pullman

The plaintiffs concede that the abstention doctrine created in Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), might be appropriate, but that concession is not warranted. Pullman abstention is appropriate “ ‘in cases presenting a federal constitutional issue which might be mooted or presented in a different posture by state court determination of pertinent state law.’ ” Colorado River, supra, 424 U.S. at 814, 96 S.Ct. at 1244, quoting County of Allegheny v. Frank Mashuda Co., supra, 360 U.S. at 189, 79 S.Ct. at 1063. Where the state law is not uncertain, however, Pullman does not apply. See Babbitt v. Farm Workers, 442 U.S. 289, 306, 99 S.Ct. 2301, 2312-13, 60 L.Ed.2d 895 (1979); Ryan v. State Board of Elections, 661 F.2d at 1136. In the present case there is no issue of state law which could moot this question. The meaning of the regulation is clear. No question concerning state law has been raised. Pullman abstention does not apply.

C. Burford

In Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943), the Supreme Court created a third type of abstention. There the court held that the district court should have abstained on a difficult issue of state regulation because of the complexity of the state law issue, the expertise of the state court, the predominance of local issues, and the need for coherent state doctrine in the area. Such an abstention is appropriate where the importance of the issues of state law transcend the result in the individual case. See Colorado River, supra, 424 U.S. at 814, 96 S.Ct. at 1244. These cases involve administrative regulation of areas of state interest, such as oil exploration, see Burford, supra, state eminent domain, see Louisiana Power & Light Co. v. Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959), and railroad passenger service, see Alabama Public Service Commission v. Southern Railway, 341 U.S. 341, 71 S.Ct. 762, 95 L.Ed. 1002 (1951). These cases involve interpretation of state law and in these cases the courts fear that federal intervention would disrupt state efforts to create coherent policy with regard to matters of substantial state interest. See generally Ryan, supra, at 1135. In the present case, though the subject is of acute state interest, there is no complex system of state regulation of which state courts have superior knowledge and ability, and there is no difficult issue of state law. Construction of the challenged statute is unquestioned. Interference with a complex series of state regulations is not sought. Burford does not counsel abstention from this issue.

Conclusion

The present case came to the court at such a time and in such a posture that abstention in deference to a different state law suit is neither required or allowed. The declaratory action was properly removed to this court and remand of that action cannot be allowed. Again, this federal court is not comfortable acting as the court of first resort in determining the constitutionality of disciplinary rules vital to regulation of an essential state interest. Plaintiffs, however, chose the federal forum to decide their federal constitutional claims and did so prior to any violation. They properly sought and obtained relief from enforcement of the new rule. They are raising an issue that is free of difficult questions, in fact any questions, of state law and which does not impact greatly on a complicated area of state regulation. This court delayed the action to give the Committee an opportunity to review the rule; it chose not to do so. Plaintiffs deserve a ruling on the merits. Accordingly, the court is now prepared to rule on plaintiffs’ present motion for preliminary injunction.

      . Plaintiffs later amended their complaint to drop the individual members of the Commission.

      . The court stated:
      I don’t want to narrowly restrict the provisions on a TRO because it seems to me that that is going to open up other possibilities not related to your people that is not intended. I am prepared to say — I am really groping for a practical way to do it — during the temporary time in which this question gets resolved — and I do think it is a substantial question — that the named plaintiffs can go ahead and do what they were doing before under the old rule without being charged with anything, but not beyond that.

      . This discussion assumes that Younger abstention would be allowed despite the lateness of the subsequent action. In Hicks v. Miranda, 422 U.S. 332, 349, 95 S.Ct. 2281, 2291-92, 45 L.Ed.2d 223 (1975), the Court held that where state proceedings are begun after federal proceedings, Younger abstention could be appropriate if the state action is filed "before any proceedings of substance on the merits have taken place in the federal court." This court granted a temporary restraining order but made no ruling on the merits. The Supreme Court has not been clear on whether, for Hicks purposes, it considered a temporary restraining order a proceeding of substance. See Hawaii Housing Authority v. Midkiff, — U.S. -, 104 S.Ct. 2321, 2328, 81 L.Ed.2d 186 (1984). Because the court finds that Younger abstention is inappropriate regardless, it need not reach this issue.


source: Caselaw Access Project

author: DUNCAN, District Judge.

license: Public Domain

text:
    Margie M. BROWN, Individually, Administratrix of the Estate of Howard R. Brown and as Guardian of Tracy L. Brown, Plaintiff, v. John D. BYARD, et al., Defendants.
    No. C-2-84-19.
    United States District Court, S.D. Ohio, E.D.
    Dec. 7, 1984.

      Gregory D. Rankin, Columbus, Ohio, for plaintiff.
    James M. Wiles, Charles Brown, Michael W. Donaldson, Columbus, Ohio, for defendants.
   MEMORANDUM AND ORDER

DUNCAN, District Judge.

This action arises out of the January 9, 1982 crash of a Piper Cherokee aircraft at Harry Clever Field in New Philadelphia, Ohio. Plaintiff’s decedent, Howard R. Brown, a passenger on the aircraft, died on January 9, 1982, as a result of injuries suffered in the crash.

Plaintiff states that the Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1337 because the prosecution and defense of this matter will require the construction and application of the Federal Aviation Act, 49 U.S.C. § 1301 et seq. (“the Act”).

Currently before the Court is defendant Piper Aircraft Corporation’s (“Piper”) motion to dismiss. Piper, the manufacturer of the aircraft at issue, contends that the Federal Aviation Act does not contain an express or implied private right of action and, therefore, does not confer upon this Court subject matter jurisdiction over plaintiff’s claims which are based upon alleged violations of the Act. Defendant adds that since no federal question is raised by plaintiff’s allegations of violations of the Act, the Court should decline to exercise pendent jurisdiction over plaintiff’s state law claims.

I

The Federal Aviation Act clearly does not expressly provide for a private cause of action for violations of the Act. Plaintiff, however, alleges that a cause of action may be implied under the doctrine of Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975).

In Cort, the Supreme Court declined to imply a shareholder’s right of action for damages against corporate directors under the Federal Election Campaign Act, which prohibited certain corporate contributions. The Court set forth the following four-pronged test to determine when a court should imply a private cause of action:

(1) is the plaintiff a member of a class “for whose especial benefit the statute was enacted”?; (2) is there “any indication or legislative intent, explicit or implicit,” to create or deny a remedy?; (3) would implying a private cause of action be consistent with the legislative scheme?; and (4) “is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer” a federal cause of action? Id. at 78, 95 S.Ct. at 2087. (Citations omitted.)

The Third and Ninth Circuit Courts of Appeals and various district courts have applied the Cort test to the Federal Aviation Act. Compare In re Mexico City Aircrash of October 31, 1979, 708 F.2d 400 (9th Cir.1983); Rauch v. United Instruments, Inc., 548 F.2d 452 (3d Cir.1976); Obenshain v. Halliday, 504 F.Supp. 946 (E.D.Va.1980); and Heckel v. Beech Aircraft Corp., 467 F.Supp. 278 (W.D.Pa.1979) (denying private right of action under Federal Aviation Act) with Swartz v. Dispatch Printing Co., Civil Action No. C-2-76-123 (S.D.Ohio, filed November 15, 1976) (Judge Kinneary denied plaintiff’s motion to remand on ground that Court lacked subject-matter jurisdiction); and In re Paris Air Crash of March 3, 1971 399 F.Supp. 732, 747 (C.D.Cal.1975) (upholding right of action). In re Mexico City Aircrash is the only circuit court decision which has squarely confronted the issue currently before this Court, namely, whether a private remedy is available under the Federal Aviation Act for the representatives of persons killed in a commercial aviation accident. The Ninth Circuit in that case held that such a private remedy did not exist. The Third Circuit Court of Appeals in Rauch found no private right of action for potential air crash victims but explicitly reserved judgment on whether actual victims of air crashes may maintain a cause of action. Rauch, 548 F.2d supra, at 457-58 and n. 10.

The Court now turns to an examination of the Federal Aviation Act in light of the Cort test. For the reasons stated below, the Court concludes that the Federal Aviation Act does not create an implied private cause of action for representatives of persons killed in air crashes.

II

A

Beginning with the first of the Cort factors, it is undisputed that the Act was enacted by Congress in order to promote safety in aviation and thereby protect the lives of persons who travel on board aircraft. It is clear that the decedent was a member of the class for whom the safety regulations of the Act were enacted, and the first part of the Cort test is therefore satisfied. This alone does not establish that plaintiff is entitled to maintain a private cause of action under the Act, but leads to an analysis of the second Cort factor: whether there is an indication of legislative intent, explicit or implicit, either to create or deny a private remedy.

B

The second factor, legislative intent, has been found to be dispositive in recent Supreme Court cases. Obenshain, 504

F.Supp. supra, at 949, citing Touche Ross & Co. v. Redington, 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979), Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), and Transamerica Mortgage Advisors v. Lewis, 444 U.S. 11, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979). In Touche Ross, supra 442 U.S. at 575-76, 99 S.Ct. at 2488-89, the Court stated that while the factors of Cort are “relevant” in determining if a cause of action is to be implied, they are not each entitled to equal weight.

The parties agree that neither the Act itself nor its legislative history explicitly manifest an intent to create a private cause of action. Plaintiff seeks support for her contention that Congress had such an intent from 49 U.S.C. § 1506, which states: “Nothing contained in this chapter shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies.” Plaintiff contends that this provision indicates that Congress did intend the relief specifically provided in the Act to foreclose the possibility of pursuing other remedies for violations of the Act. The Court agrees with the view expressed by the Ninth Circuit Court of Appeals that “section 1506 does not evidence any positive intent to create a private cause of action. It simply preserves private remedies that exist independent of the Act.” In re Mexico City Aircrash, 708 F.2d supra at 407.

The Federal Aviation Act is a detailed statute with an extensive administrative enforcement scheme, providing for civil penalties for violations of the Act, 49 U.S.C. § 1471, and authorizing the U.S. district courts to grant injunctive relief in order to compel compliance with the Act, 49 U.S.C. § 1487. As stated by the Ninth Circuit and the United States Supreme Court:

In light of [the Federal Aviation Act’s] statutory remedies, we must follow the “elemental canon of statutory construction that where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it.” Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 14-15 [101 S.Ct. 2615, 2623, 69 L.Ed.2d 435] (1981); ... Because of the Act’s emphasis on administrative regulation and enforcement, we conclude that “it is highly improbable that ‘Congress absentmindedly forgot to mention an intended private action.’ ” Transamerica Mortgage Advisors, 444 U.S. at 20, 100 S.Ct. at 247 (quoting Cannon v. University of Chicago, 441 U.S. 677 [99 S.Ct. 1946, 60 L.Ed.2d 560] (1979) (Powell, J., dissenting)); see Diefenthal v. CAB, 681 F.2d 1039, 1049 (5th Cir.1982) (the Act’s detailed administrative scheme, together with private right to seek injunctive relief in some cases, provides strong evidence that Congress did not intend a private cause of action for damages).

In re Mexico City Aircrash, supra at 407.

There does not appear to be any legislative history that would indicate that Congress intended to create a private right of action in the Federal Aviation Act; and “[t]he Supreme Court has admonished that ‘implying a private right of action on the basis of congressional silence is a hazardous enterprise, at best.’ ” Obenshain, 504 F.Supp. supra at 950, quoting Touche Ross, 442 U.S. supra at 571, 99 S.Ct. at 2486.

In fact, in 1968 and 1969 Congress considered and rejected various bills that would have created a federal cause of action and exclusive federal jurisdiction for injuries arising out of aircraft crashes. See In re Mexico City Aircrash, 708 F.2d supra, n. 11 at 407-408; and Obenshain, 504 F.Supp. supra at 950. The later congressional interest in creating a federal private cause of action may be taken as some evidence of the earlier Congress’ intent to preclude such a right.

In the Court’s view, the second and arguably most significant part of the Cort test, whether there is any indication of a congressional intent to create a private right of action, is unsatisfied.

C

Based upon the Court’s conclusions with regard to the first two inquiries in the Cort test, it is unnecessary to proceed further and conduct the third and fourth steps of the Cort analysis. “Cases subsequent to Cort have explained that the ultimate issue is whether Congress intended to create a private right of action ...” California v. Sierra Club, 451 U.S. 287, 293, 101 S.Ct. 1775, 1778, 68 L.Ed.2d 101 (1981). “[T]he focus of the inquiry is on whether Congress intended to create a remedy ... The federal judiciary will not engraft a remedy on a statute, no matter how salutory, that Congress did not intend to provide.” Id. at 297, 101 S.Ct. at 1781.

The Court might add, however, that with regard to the fourth Cort factor, plaintiffs’ claims are clearly ones that are ordinarily of state concern and traditionally governed by state law. Plaintiff’s amended complaint charges defendant Piper with negligence, strict product liability and breach of warranties as a result of the allegedly unsafe design of the aircraft. While aviation is strongly regulated by the federal government, § 1106 of the Act explicitly preserves state remedies. Negligence, strict product liability and breach of warranty are causes of action with which the common and statutory law of the states deals every day.

Ill

The Court concludes that the Federal Aviation Act does not contain an express or an implied private right of action, either in survivorship or for wrongful death, on behalf of persons killed in air crashes.

Defendant Piper’s motion to dismiss is, therefore, GRANTED.

So ORDERED.


author: RENNER, District Judge.

text:
    The TORO COMPANY, a Minnesota corporation, Plaintiff, v. R & R PRODUCTS CO., an Arizona corporation, Defendant.
    Civ. No. 3-83-1120.
    United States District Court, D. Minnesota, Third Division.
    Dec. 10, 1984.
    Robert T. Edell, Alan Kowalchyk, Minneapolis, Minn., for plaintiff.
    Brian B. O’Neill, Jeff H. Eckland, Minneapolis, Minn., for defendant.
   MEMORANDUM AND ORDER

RENNER, District Judge.

Before the Court are defendant’s motions to dismiss: (1) the claims relating to its alleged misappropriation of plaintiff’s “proprietary parts numbering systems;” (2) all nonstatutory claims for damages and attorney’s fees; and (3) any claims not pleaded with sufficient particularity. Plaintiff moves to dismiss defendant’s Sherman Act counterclaim.

BACKGROUND

Plaintiff the Toro Company (“Toro”) manufactures grassmowing equipment. In connection with the manufacture and sale of the equipment, Toro publishes owners manuals and parts catalogues. The catalogues contain parts lists and illustrations of numerous parts in exploded view. Toro identifies these parts using the numbers which are published in the catalogue. Toro alleges its publications are protected by copyright.

Defendant R & R Products Co. (“R & R”) manufactures and sells parts for Toro and other manufacturers’ equipment. It also publishes catalogues containing illustrations and parts’ lists. The catalogues include lists of Toro brand part numbers with cross-references to the R & R brand part numbers. The R & R parts’ numbers are identical to the Toro parts’ numbers, except that an “R” precedes the number on the R & R brand parts. In addition, some illustrations of parts contained in the R & R catalogues appear identical to the illustrations in some of Toro’s publications.

COPYRIGHT INFRINGEMENT CLAIM

Toro alleges, in part, that R & R infringed Toro’s copyrights by reproducing Toro’s parts numbering system and by duplicating the part illustrations contained in Toro publications. R & R moves to dismiss the copyright infringement claim as it applies to the Toro part numbering system. In deciding this motion, the Court relies only upon the pleadings, legal memoranda and arguments of counsel.

Defendant contends that plaintiffs allegations fail to state a claim for relief under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The standard for failure to state a claim is a stringent one. Such a motion will not be granted:

[U]nless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.
.....
The question, therefore, is whether in the light most favorable to the plaintiff, the complaint states any valid claim for relief. Thus, as a practical matter, a dismissal under Rule 12(b)(6) is likely to be granted only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief. Thomas W. Garland, Inc. v. City of St. Louis, 596 F.2d 784, 787 (8th Cir.), cert. denied, 444 U.S. 899 [100 S.Ct. 208, 62 L.Ed.2d 135] (1979).

In viewing the facts most favorably to plaintiff, the Court assumes that R & R published lists of Toro brand part numbers from Toro’s copyrighted works. The Court also assumes that R & R published Toro part numbers for R & R brand parts except that R & R prefaced its own numbers with an “R.”

Toro does not object to R & R’s duplication of Toro part numbers when used as cross-references to R & R part numbers. In other words, in viewing an R & R catalogue containing two columns of part numbers having the Toro parts on the left and the R & R parts on the right, Toro concedes that R & R may copy the numbers on the left. Toro challenges only copying of the right hand column containing the same numbers but prefaced with an “R.”

The Copyright Act defines the general subject matter of copyrightable works. 17 U.S.C.A. § 102 (West 1977). In section 102(b), the Act specifically excludes any “process” or “system” from copyright protection, “regardless of the form in which it is described, explained, illustrated, or embodied in such work.” Id. § 102(b). Toro itself characterizes R & R’s alleged misconduct as a misappropriation of its “parts numbering, system.” Complaint at 1110 (emphasis added). Since the copyright statute explicitly excepts duplication of a system from copyright protection, Toro cannot state a claim for relief based on such grounds.

The regulations supplementing the copyright statutes further support this result. They provide that a “mere listing of ingredients or contents” is not subject to copyright. 37 C.F.R. § 202.1(a) (1984). R & R’s publication of a list of part numbers is analogous to publication of a list of ingredients or contents not protectible by copyright law.

ANTITRUST COUNTERCLAIM

R & R has counterclaimed against Toro for antitrust violations. The substance of the counterclaim follows:

By the bringing of this action Toro has attempted and is attempting to encumber and control the sale by R & R of uncopyrighted replacement parts, thereby attempting to enlarge and extend a claimed copyright monopoly beyond its legal scope, and restrain and monopolize a part of trade or commerce among the several states, namely, the trade or commerce in such replacement parts, thereby unfairly competing with R & R in violation of 15 U.S.C. § 2. Defendant’s Counterclaim at ¶ 25.

The good faith attempt to protect a copyright interest, even if unsuccessful, is a defense to an action for attempted monopolization. Knickerbocker Toy Co. v. Winterbrook Corp., 554 F.Supp. 1309 (D.N.H.1982). Defendant does not allege that plaintiff has brought this suit in bad faith, or that plaintiff’s claims are spurious. Since R & R has conceded duplicating Toro’s drawings, it cannot honestly claim that Toro’s action is brought in bad faith. Defendant’s Memorandum in Support of Motion to Dismiss, or, in the Alternative, for Partial Summary Judgment at 8 n. 1. R & R merely alleges that “[b]y the bringing of this action” Toro violated the antitrust laws.

[T]he utilization of the courts in a manner which is in accordance with the spirit of the law continues to be exempt from the antitrust laws. See also Alberto-Culver Company v. Andrea Dumon, Inc., 466 F.2d 705 (7th Cir.1972), where it was held that a good faith effort to enforce one’s copyright is not the type of exclusionary conduct condemned by § 2 of the Sherman Act. Edward B. Marks Music Corp. v. Colorado Magnetics, Inc., 497 F.2d 285, 291 (10th Cir.1974), cert. denied, 419 U.S. 1120, 95 S.Ct. 801, 42 L.Ed.2d 819 (1975).

Absent allegations of bad faith, R-& R’s counterclaim cannot stand.

Based upon the foregoing, the pleadings, motion papers, and arguments of counsel,

IT IS ORDERED that R & R’s motion to dismiss Toro’s claims of copyright infringement on Toro’s parts numbering system is granted.

IT IS FURTHER ORDERED that R & R’s motion to dismiss Toro’s other claims is denied.

IT IS FINALLY ORDERED that Toro’s motion to dismiss R & R’s counterclaim is granted.

      . The Court expresses no opinion as to the merit of Toro's copyright claims on infringement of its drawings, nor as to its trademark or unfair competition claims.


author: HAMILTON, District Judge.

text:
    LAWYERS TITLE INSURANCE CORPORATION, Plaintiff, v. PIONEER NATIONAL TITLE INSURANCE CORPORATION, and LLL, Inc., Defendants.
    Civ. A. No. 84-1000-15.
    United States District Court, D. South Carolina, Rock Hill Division.
    Dec. 11, 1984.

      Melvin B. McKeown, Jr., York, S.C., for plaintiff.
    Robert W. Dibble, Jr., Columbia, S.C., S. Jackson Kimball, York, S.C., for defendants.
   ORDER

HAMILTON, District Judge.

This is a declaratory judgment action seeking the resolution of the relative obligations between two title insurers. Jurisdiction is allegedly based upon 28 U.S.C. §§ 1332 and 1441(c). The matter is before the court upon motions of the plaintiff and defendant LLL, Inc. (hereinafter “LLL”) to remand this action.

This action was originally instituted in the Court of Common Pleas of York County, South Carolina, by the filing of a complaint. Service of such complaint was effected upon defendant LLL on March 14, 1983, and upon defendant Pioneer National Title Insurance Corporation (hereinafter “Pioneer”) on March 21, 1983. The complaint contains the following allegations. LLL sought to purchase a number of acres of land in York County for commercial development, but such land was subject to a restrictive covenant preventing commercial use. After LLL obtained a release of the restrictive covenant from the previous owner and original developer of this land, Pioneer issued a title insurance policy insuring the commercial use of this land over the restrictive covenants. It is alleged that LLL also sought to obtain title insurance against the claims of the Catawba Indian Tribe, which was not covered under the policy issued by Pioneer. LLL thus approached the plaintiff to obtain such insurance, and the plaintiff issued a policy of title insurance containing the same language as the policy issued by Pioneer, but including coverage for any claims by the Catawba Indian Tribe.

When LLL began to make commercial use of the property in question, the surrounding landowners brought a state court action to enforce the restrictive covenants. By order entered December 2, 1983, LLL was enjoined from violating the restrictive covenants originally placed on the property-

During the pendency of the state court proceedings to enforce the restrictive covenants, the present action was filed in state court. The plaintiff contended that the policy of insurance issued by Pioneer was intended to be the primary insurance for the inability to use this property for commercial purposes, and the policy issued by the plaintiff was intended to cover solely claims from the Catawba Indian Tribe. The complaint sought reformation of its insurance policy and a declaration of the rights and obligations of the respective parties. At that stage of the case, the matter could not be removed to federal court.

No civil action is removable from the state court to the federal court, except one founded on a claim or right arising under the Constitution, treaties or laws of the United States, if any of the parties in interest properly joined and served as defendants is a citizen of the state in which such action is brought. 28 U.S. C.A. § 1441(b).

Arcady Farms Milling Co. v. Northcutt, 87 F.Supp. 373, 374 (E.D.S.C.1949).

After proceedings went forward in state court, Pioneer (now known as Ticor Title Insurance Company) instituted a declaratory judgment action in this court seeking a declaration of the relative rights and obligations of the respective parties. This complaint, Civil Action Number 84-0641-15, was filed in this court on March 30, 1984. As a result of this action, LLL sought to assert a counterclaim and cross-claim in the state court action. In the counterclaim, LLL sought payment under the Lawyers Title Insurance policy. In the cross-claim, LLL sought recovery under the Pioneer policy, and also sought to impose liability for Pioneer’s alleged bad faith in instituting a federal court action to adjudicate the same issues being considered in the state court proceedings.

The cross-claim was served in this action on May 2,1984, and Pioneer filed a removal petition on May 7, 1984, only two days before trial was to begin in state court. Pioneer asserts that the filing of the cross-claim presents an independent cause of action which is removable under 28 U.S.C. § 1441(c). The plaintiff and defendant LLL have moved to remand this matter to the Court of Common Pleas for York County.

The issue, as framed for this court, is whether a cross-claim between two defendants may be the basis for the removal of a case under 28 U.S.C. § 1441(c), which states:

(c) Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction.

Pioneer asserts that LLL’s cross-claim against it would be removable if sued upon alone, and that the whole case is thus properly removed to this court. By contrast, Lawyers Title and LLL assert that the independent claim must be one asserted by the plaintiff in order for 28 U.S.C. § 1441(c) to apply, and claims between defendants cannot be the basis for removal.

This is not a case of first impression within this district. In Cannon v. Goodyear Tire and Rubber Co., 241 F.Supp. 23 (E.D.S.C.1965), the plaintiff brought a products liability action against Goodyear Tire and Rubber Co., Inc., General Motors, Inc., and a South Carolina defendant. Because of the presence of the South Carolina defendant, the case could not originally have been brought in federal court. When the South Carolina defendant asserted a cross-claim against General Motors and Goodyear, those defendants filed a removal petition. In considering the matter, the Honorable Robert W. Hemphill held that 28 U.S.C. § 1441(c) only applies to actions in which an original plaintiff has asserted an independent, removable claim. Judge Hemphill held:

Section 1441(c) is not applicable to the situation presented here. The defendants Goodyear and General Motors in their argument overlook the words “is joined” contained in the statute. The application of 1441(c) is restricted to situations where the plaintiff joins two or more claims, one of which will qualify as a separate and independent claim and does not apply to a claim introduced into the action by means of a cross-claim. Therefore 1441(c) only allows removal of a separate and independent claim which is joined with one or more non-removable claims by the plaintiff.

Id. at 25. Although Pioneer asserts that this is dictum, inasmuch as Judge Hemphill had also ruled that the cross-claim did not assert separate and independent claims, it is clear that Judge Hemphill squarely faced the issue. “Even if it were admitted that the cross-action was a separate and independent claim or cause of action, this still would not make this case one which is removable.” Id.

The court is aware that there are many cases which have held that 28 U.S.C. § 1441(c) allows removal of entire actions by a third party defendant. See Carl Heck Engineers, Inc. v. Lafourche Parish Police Jury, 622 F.2d 133 (5th Cir.1980); Industrial Lithographic Co. v. Mendelsohn, 119 F.Supp. 284 (D.N.J.1954). See generally, 1A J. Moore, B. Ringle & J. Wicker, Moore’s Federal Practice ¶ 0.167[9] n. 8, -¶ 0.167[10] n. 17 (2d ed. 1983). However, just as many courts have adhered to the view that 28 U.S.C. § 1441(c) does not permit removal by a third party defendant or defendant to a cross-claim. Id. at ¶ 0.167[9] n. 12, -¶ 0.167[10] n. 22.

The court is of the opinion that removal is improper under § 1441(c) when the only removable claim is asserted by cross-claimants. The removal statute is intended to restrict removal jurisdiction, and as such, is to be narrowly construed. All doubts concerning removal jurisdiction should be construed in favor of the retention of state court jurisdiction. Greenshields v. Warren Petroleum Corp., 248 F.2d 61, 65 (10th Cir.1957); Cooper v. Georgia Casualty & Surety Co., 241 F.Supp. 964, 966 (W.D.S.C.1965). Even though Pioneer’s contract with LLL is a separate claim than LLL’s contract with Lawyers Title Insurance Co., all of these matters were properly in dispute in this case as originally filed in state court. The court is convinced that the best course of action is to prevent the piecemeal litigation of this dispute and to allow the resolution of this case in the state court of its origin.

The judicial commentators have supported the view espoused by this court. “The application of 28 U.S.C. § 1441(c) is restricted to situations where the plaintiff joins two or more claims, one of which will qualify as a separate and independent claim, and does not apply to a claim introduced by means of a cross claim.” Fed. Proc., L.Ed. Removal of Actions § 69:37 (Law.Co-op.1981).

There is also authority, however, that Congress intended to confine § 1441(c) to the situation in which there has been a joinder of two or more claims by the plaintiff. Under this reasoning any claim introduced into the state action by cross-claim, whether by a defendant against his co-defendant or by a plaintiff against his co-plaintiff, is not removable.We believe this to be the correct conclusion, primarily because the removal statute should be construed strictly, and against removal; and in this light § 1441(c) should be limited to the situation involving a joinder of claims by the plaintiff.

1A J. Moore, B. Ringle & J. Wicker, Moore’s Federal Practice ¶ 0.167[9] (2d ed. 1983).

Another practical question that neither Congress nor the Supreme Court has yet to answer is whether third-party claims, cross-claims, and counterclaims are removable under Section 1441(c). The commentators seem to agree that “[Sjection 1441(c) applies only to claims joined by the plaintiff or plaintiffs.” The majority of cases have concluded that a third-party defendant or a cross-claim defendant is not entitled to remove the case, although the courts are not entirely clear or consistent about whether this result is based on the conclusion (1) that a third-party or cross-claim defendant is not a “defendant” within the meaning of the removal statute, (2) that the application of Section 1441(c) is limited to claims joined by the plaintiff, or (3) that the third-party claim or cross-claim that is before the court is not sufficiently unrelated to the main claim to be a separate and independent claim or cause of action.
Analysis of those decisions that have permitted removal on the basis of third-party claims, cross-claims, or counterclaims makes it readily apparent that their reasoning is somewhat strained and that Section 1441(e) should not be interpreted as authorizing removal in these cases. In one of the most common situations — a third-party claim or cross-claim for indemnification — it is apparent that a separate and independent claim or cause of action is not presented. Even in situations in which third-party claims or cross-claims are factually or legally so different from the main suit that they are separate and' independent, it seems rather drastic to force the plaintiff, whose choice of forum normally should be honored, to litigate in a federal court that he did not choose and one to which his adversary originally could not have removed. Of course, if removal under Section 1441(c) were allowed, it is possible for the court, in its discretion, to remand the jurisdictionally insufficient main case. But pursuing this course would increase the number of preliminary procedural steps necessary for selecting the forum and would vitiate some of the economy sought to be achieved by extending Section 1441(c) to third-party claims, cross-claims, and counterclaims.

14' C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure: Jurisdiction § 3724 (1976) (quoting Moore & VanDercreek, Multi-Party, Multi-Claim Removal Problems: The Separate and Independent Claim under Section 1441(c), 46 Iowa L.Rev. 489, 509 (1961)). The court concurs in the views of these commentators.

For the foregoing reasons and based on the cited authorities, the court is of the opinion that a defendant to a cross-claim may not utilize 28 U.S.C. § 1441(c) to remove a case to this court.

IT IS THEREFORE ORDERED that this case be, and the same hereby is, remanded to the Court of Common Pleas for the County of York, State of South Carolina; a certified copy of this order shall be mailed by the Clerk of this Court to the Clerk of the Court of Common Pleas for said York County, South Carolina.


author: NAUMAN S. SCOTT, District Judge.

text:
    Jimmie RACHAL v. INGRAM CORPORATION.
    Civ. A. No. 83-1754.
    United States District Court, W.D. Louisiana, Alexandria Division.
    Dec. 11, 1984.
    Führer, Flournoy & Hunter by John E. Morton, Alexandria, La., for plaintiff.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, James E. Diaz, Jr., Frank H. Spruiell, Jr., Lafayette, La., for Ingram Corp.
    Lea & Gibbens, William B. Gibbens, III, New Orleans, La., for A & P Boat Rentals, Inc.
   RULING

NAUMAN S. SCOTT, District Judge.

Plaintiff originally filed this action on July 13, 1983, alleging jurisdiction under the Jones Act and the general maritime law, specifically praying for a trial by jury. Defendant Ingram Corporation (Ingram) answered the complaint with a general denial on August 15, 1983. Subsequently, plaintiff filed his First Supplemental and Amending Complaint on August 28, 1984, requesting that this action be identified as one in admiralty under designation of Rule 9(h), Fed.R.Civ.P., and without benefit of trial by jury. On that same day, plaintiffs request was granted by order of this court. On September 7, 1984, Ingram again answered with a general denial and declined to specifically address the 9(h) designation.

At a pretrial conference on September 10,1984, however, defendant asked that we allow some time for it to reconsider its position on the jury trial issue. We granted defendant seven days to do so.

On September 17, 1984, Ingram advised us that it had decided to oppose the 9(h) designation. Specifically, it contended that plaintiff was precluded from unilaterally withdrawing its jury demand without consent by the Court as prescribed under Rule 39 of the Federal Rules. Four days later, plaintiff reiterated his position that the 9(h) designation is proper and that our previous ruling in Arnold L. Willis v. Woodson Const. Co., 593 F.Supp. 464 (W.D.La.1983), (upholding that plaintiffs 9(h) designation), is controlling authority in his favor. On October 22, 1984, we asked for memoranda of authority from both parties. The issue is present before us now on plaintiffs Motion to Strike Jury Demand.

I. The Willis Case.

Before beginning our analysis of the jury issue, we feel constrained to discuss our previous ruling in the Willis case, supra. In that case plaintiff made a 9(h) designation in his original complaint. Then, defendant answered, specifically requesting a jury trial on the authority of Romero v. Int’l Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959). In holding for the plaintiff, we ruled “(s)ince the present matter does not involve an amendment or waiver ...” plaintiff could rely on his 9(h) designation. Willis, at 466. Therefore, since we now are confronted with an amendment denominating Rule 9(h), Willis is not controlling.

II. Rule 39

In Johnson v. Penrod Drilling Co., 469 F.2d 897 (5th Cir.1972), the Fifth Circuit was faced with the situation where Amended Rule 9(h) plaintiffs attempted to withdraw their earlier demand for trial by jury without the consent of the defendants and without a finding by the District Court that a right to trial by jury did not exist. 469 F.2d at 901-03; Fisher v. Danos, 671 F.2d 904, 906 (5th Cir.1982). That court held that defendant was entitled to a trial by jury because the plaintiffs did not comply with Fed.R.Civ.P. 39(a). Fisher, 671 F.2d at 906. However, that case is distinguishable from the present matter.

In the case at bar, the only alleged bases of jurisdiction are the Jones Act and the general maritime law. In the Johnson case diversity jurisdiction was also present. Thus, unlike the District Court in that case, we can find that no right to a jury trial existed for the defendant, and hereby do so. Rule 39 is not applicable under the present facts.

III. Rule 9(h)

The general rule is that admiralty claims are to be tried without a jury. See, Fed.R.Civ.P. 9(h); Romero v. Bethlehem Steel Corp., 515 F.2d 1249, 1252 (5th Cir.1975); Fisher v. Danos, 671 F.2d at 905. However, under the Jones Act, a plaintiff seaman may elect to have a jury trial. 46 U.S.C. § 688. This election belongs to the seaman, not his employer, and the employer may not require a jury trial. Johnson v. Venezuelan Line S.S. Co., 314 F.Supp. 1403, 1406 (E.D.La.1970); Texas Menhaden Co. v. Palermo, 329 F.2d 579 (5th Cir.1964); See, Doucet v. Wheless Drilling Co., 467 F.2d 336, 339 (5th Cir.1972) (a seaman may elect a suit in admiralty or at law). More, it is indisputable that “a Rule 9(h) election, whether to proceed in admiralty without a jury or at law with a jury, is not irrevocable.” Fisher v. Danos, 671 F.2d at 905; Doucet v. Wheless, 467 F.2d at 339. Thus, it becomes clear that plaintiff is entitled to seek leave of this Court to amend his complaint to add an identifying statement and that our consideration of this request is governed by the principles of Fed.R.Civ.P. 15. See, Emerson G.M. Diesel v. Alaskan Enterprise, 732 F.2d 1468, 1471-72 (9th Cir.1984); McCrary v. Seatrain Lines, Inc., 469 F.2d 666 (9th Cir.1972); Fruin-Colnon Corp. v. M. G. Transport Serv., 79 F.R.D. 674, 676-77 (S.D.Ill.1978). Finding that defendant will not suffer any prejudice since the same proof and witnesses will be required regardless of the mode of trial, plaintiffs motion is hereby GRANTED.