author: NORDBERG, District Judge.

text:
    ALLENDALE MUTUAL INSURANCE COMPANY, as Subrogee of Interstate Industries, Inc., and Sears Roebuck & Company, Plaintiffs, v. LEASEWAY WAREHOUSE, INC., and American District Telegraph Company, Defendants.
    No. 81 C 3818.
    United States District Court, N.D. Illinois, E.D.
    Aug. 5, 1985.

      John N. Love, Robins, Zelle, Larson & Kaplan, Wellesley, Mass., for plaintiffs.
    John Horvath, Conklin & Adler, Ltd., Chicago, 111., for Leaseway Warehouses, Inc.
    David Ullrich, Eckhart, McSwain, Hassell & Silliman, Chicago, 111., for American Dist. Telegraph Co.
   MEMORANDUM OPINION AND ORDER

NORDBERG, District Judge.

Defendant American District Telegraph Company (“ADT”), has brought a motion for summary judgment against the plaintiff, Allendale Mutual Insurance Company (“Allendale”), and for summary judgment against its co-defendant Leaseway Warehouse, Inc. (“Leaseway”). Leaseway has also moved for summary judgment against the plaintiff, Allendale. For the foregoing reasons, Leaseway’s motion is denied, and both motions of ADT are granted.

Facts

ADT and Leaseway entered into a contract whereby ADT agreed to provide Leaseway with supervisory sprinkler and water flow alarm service which would detect any water leakage from the sprinkler system within Leaseway’s warehouse. The contract contained the following clauses:

“The subscriber (Leaseway) does not desire this contract to provide for full liability of the contractor (ADT) and agrees that the contractor shall be exempt from liability for loss, damage or injury due directly or indirectly to occurrences or consequences therefrom which the service or system is designed to detect or avert; ...”
******
In the event any person, not a party to this agreement, shall make any claim or file any lawsuit against the contractor for failure of its equipment or service in any respect, subscriber agrees to indemnify, defend and hold contractor harmless from any and all such claims and lawsuits including the payment of all damages, expenses, costs and attorney’s fees.

The plaintiff, Allendale, was not a party to this contract, nor were its subrogors.

A contract did exist between the subrogor and Leaseway whereby Leaseway agreed to store Interstate Industries, Inc. (“Interstate”) stereo consoles at its warehouse. According to Leaseway, its liability for any losses for damages was limited by the warehouse receipts which contained the terms and conditions of the bailment. The receipts stated the time period in which a claim must be made (60 days) and the time period for the commencement of an action (nine months) against Leaseway.

On the night of January 27, 1979 a large chunk of ice fell from the roof and wall of the Leaseway warehouse where the stereo consoles were stored. The ice broke a water pipe connected to the sprinkler system. The alarm sounded and was received by ADT. ADT notified the Alsip Fire Department and sent out an alarm investigator. Both found nothing. ADT also alerted a Leaseway employee, who told ADT he would check out the situation. However, the employee never arrived at the warehouse because his auto got stuck in the snow. He contacted ADT and told them that he would be unable to respond to the alarm. ADT did not call or notify any other Leaseway employee. Water continued to flow from the broken pipe, damaging the property of Interstate.

The plaintiff is now seeking a recovery of the amount it paid to the insured. Leaseway, however, contends that no claim was filed within 60 days nor was this action commenced within nine months of the accident. Consequently, the plaintiff cannot recover. Yet, the plaintiff contends that its insured never received receipts. Further, even if the subrogor did receive such receipts, Leaseway had sufficient notice of the claim for damages because of communications which were made between the parties pertaining to the damaged property.

In addition to claims against Leaseway, the plaintiff contends that ADT is liable to it in tort. According to the plaintiff liability is imposed under § 324A of the Restatement which creates liability when a person negligently performs an undertaking. The Restatement states:

“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.”

ADT contends, however, that it is entitled to summary judgment because its obligation to third parties such as the subrogor Interstate are determined by its contract with Leaseway. This contract sets the boundaries of the undertaking. Hence, the exculpatory clauses are applicable to the plaintiff also.

ADT also argues that it is entitled to summary judgment against its co-defendant Leaseway. Leaseway filed a cross-claim against ADT contending that the contract between the parties was an unconscionable adhesion contract and therefore unenforceable. ADT disagrees, stating that the contract is binding, and therefore ADT is relieved of any liability to Lease-way.

Summary Judgment

Defendants have moved for summary judgment on all four counts. On a motion for summary judgment, the moving party has the burden of establishing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Cedillo v. International Association of Bridge and Structural Iron Workers, 603 F.2d 7, 10 (7th Cir.1979). The non-moving party is entitled to all reasonable inferences that can be made in its favor. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). However, the plaintiff may not merely rely on conclusory pleadings to withstand summary judgment. In responding to a motion for summary judgment, a plaintiff must set forth specific fact in affidavits or otherwise showing that there are genuine issues that must be decided at trial. First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.1983).

The purpose of the summary judgment procedure is to eliminate a trial in cases where a trial is unnecessary and results in delay and expense. Mintz v. Mathers Fund, Inc., 463 F.2d 495, 498 (7th Cir. 1972). As the Seventh Circuit Court of Appeals has noted, with the ever-increasing burden upon the judiciary, persuasive reasons exist for the utilization of summary judgment procedures whenever possible. Kirk v. Home Indemnity Co., 431 F.2d 554, 559-60 (7th Cir.1970). Court therefore will not strain to find the existence of a genuine issue where none exists. Id.

I. Leaseway’s Motion for Summary Judgment Against Allendale

Leaseway contends that its liability to Allendale is limited by the receipts given to the subrogor. Further, it argues that the plaintiff failed to meet the conditions of the receipts, and therefore the plaintiff cannot recover. The plaintiff states that no receipts were given to its subrogor and consequently it had no knowledge of the time limitations. The affidavits reflect this conflict. In addition, Leaseway has failed to produce a copy of the receipts allegedly owed to Allendale. The court therefore finds that a genuine issue of material fact exists, and summary judgment is denied on this basis. The Court does not reach any other issue raised in the motion for summary judgment at this time.

II. ADT’s Motion for Summary Judgment Against Cross-Defendant Leaseway

ADT and Leaseway entered into a contract. This contract, as previously stated, contained exculpatory clauses which exempted ADT from liability. Leaseway contends that the contract was an unconscionable adhesion contract and therefore unenforceable. ADT contends that the contract is enforceable, and therefore Leaseway has a duty to defend and cannot hold ADT liable for any losses suffered.

In keeping with the principle of freedom of contract, contractual limitations are generally held valid in Illinois. Pick-Fisheries, Inc. v. Burns Electronics Service, Inc., 35 Ill.App.3d 467, 342 N.E.2d 105 (1976). If, however, the contract is against settled public policy or there is something in the social relationship which militates against upholding the agreement, the contract will not be enforced. Jackson v. First National Bank, 415 Ill. 453, 114 N.E.2d 721 (1953).

In Fireman’s Fund American Insurance Co. v. Burns Electronics Services, Inc., 93 Ill.App.3d 298, 48 Ill.Dec. 729, 417 N.E.2d 131 (1981), the defendant agreed to provide a burglary alarm system to a jewelry store. The contract absolved the defendant from any liability for loss caused by a failure of the system, even if the loss was caused by the defendant’s negligence. The clause was found to be valid and upheld by the court. Contracts with similar clauses have also been upheld by Illinois courts in the past. See, First Financial Insurance Co. v. Purolator Security, Inc., 69 Ill.App.3d 413, 26 Ill.Dec. 393, 388 N.E.2d 17 (1979); Pick-Fisheries, Inc., 35 Ill.App.3d 467, 342 N.E.2d 105.

The exculpatory clauses found in the present case are virtually identical to those found in Fireman’s Fund. It is undisputed that the contract was voluntarily made at arms length between two corporations. The contract in this case is enforceable between the parties just as the contract in Fireman’s Fund was enforceable.

Accordingly, since no genuine issue of material fact exists, and the contract is binding and enforceable, the defendant ADT is entitled to summary judgment.

III. ADT’s Motion for Summary Judgment Against Allendale

Defendant ADT has also moved for summary judgment against the plaintiff, Allen-dale. The plaintiff alleges that ADT is liable in tort under § 324A of the Restatement, “Liability to 3rd Persons for Negligent Performance of Undertaking”, which has been adopted by Illinois courts. See, Pippin v. Chicago Housing Authority, 78 Ill.2d 204, 35 Ill.Dec. 530, 399 N.E.2d 596 (1979); accord Cross v. Wells Fargo Alarm Services, 82 Ill.2d 313, 45 Ill.Dec. 121, 412 N.E.2d 472 (1980). According to the plaintiff, the defendant negligently performed its duty regarding the alarm service and this negligence caused the damage to the subrogor’s property.

The Illinois Supreme Court has held that any duty owed under § 324A is limited by the terms of the contract creating the duty. In Pippin v. Chicago Housing Authority, 78 Ill.2d 204, 35 Ill.Dec. 530, 399 N.E.2d 596, the Court held a security company liable for injuries to a third person, who was visiting premises that the security company had contracted to guard. The court held that the security company assumed the duty owed to persons lawfully on the premises, “of exercising reasonable care in the performance of its contracted obligation." (emphasis added) Id. at 78 Ill.2d at 204, 35 Ill.Dec. at 534, 399 N.E.2d at 600. Thus, since the security company had contractually assumed the duty to protect the premises of the persons therein, it owed a duty to the plaintiff under § 324A.

However, in Cross v. Wells Fargo Alarm Services, 82 Ill.2d 313, 45 Ill.Dec. 121, 412 N.E.2d 472 (1980), the Illinois Supreme Court held that no duty was owed to third persons lawfully on the premises, where the terms of the contract did not require Wells Fargo to protect the premises at the time of the injury. Thus, when no contractual duty was owed, no duty arose under § 324A.

In the instant case, under these cases, any obligation which ADT owes to third persons must derive from the contract between ADT and Leaseway. The contractual limitations on ADT’s liability to Leaseway and other parties limit its duty to the plaintiff under § 324A. Since ADT’s contract specifically states that ADT could not be held liable for damages caused by it, no duty was assumed under the contract, and therefore no duty can be imposed under § 324A. Without a contractual basis for imposing a duty under § 324A, Allen-dale cannot recover from ADT under this theory. Since there exists no genuine issue of material fact in this regard, ADT is entitled to summary judgment against Allendale.

Accordingly, summary judgment is granted in favor of ADT and against Allen-dale.


source: Caselaw Access Project

author: BROOKS, District Judge.

license: Public Domain

text:
    Glenda Jean UTLEY, Kurtis R. Utley, by his next friends Glenda Jean Utley and Paul E. Utley, Plaintiffs, v. UNITED STATES of America, Defendant.
    No. EV 83-124-C.
    United States District Court, S.D. Indiana, Evansville Division.
    Aug. 9, 1985.
    Russell T. Woodson, Evansville, Ind., for plaintiffs.
    Carolyn N. Small, U.S. Atty., Indianapolis, Ind., for defendant.
   MEMORANDUM ENTRY

BROOKS, District Judge.

FACTS

Glenda Jean Utley was in the Air Force when she learned of her pregnancy on November 28, 1978. Her pre-natal care was by Air Force physicians until April 30, 1979, when she was discharged from the military and returned to civilian-dependent status. Kurtis was born on May 7, 1979 at Deaconess Hospital in Evansville, Indiana. The birth was attended by civilian physicians, although routine care was given by government physicians the week between her discharge and delivery.

Kurtis was born with physical disabilities, the potential seriousness of which were noted by the St. Mary’s Medical Center Intensive Care Unit in Evansville, Indiana. (Kurtis had been transferred there from Deaconess.) Among the problems noted by the physicians were the following conditions: a premature birth; convulsions secondary to bacterial meningitis; intracranial hemorrhaging; sepsis and hydrocephalus. These and other problems were recorded in the discharge report dated June 18, 1979.

Plaintiffs filed a claim to the Air Force on June 29, 1981 which was denied on March 17, 1983. Plaintiffs then brought this action on May 19, 1983.

Defendant presents this Court with two motions to dismiss. The first motion has its basis on language in 28 U.S.C. § 2401(b) which states:

A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.

It is defendant’s contention that plaintiffs’ cause “accrued” on June 18, 1979, and that the statute of limitations had run as of June 18, 1981. The plaintiffs’ claim to the Air Force made on June 29, 1981 would thus be barred from consideration in this Court due to lack of subject matter jurisdiction.

Defendant also moves for dismissal of this case for lack of subject-matter jurisdiction on the grounds that this case is barred by the Feres doctrine which states that “... the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” Feres v. United States, 340 U.S. 135, 146, 71 S.Ct. 153, 159, 95 L.Ed. 152 (1950).

For the reasons outlined below, the Court DENIES defendant’s first motion to dismiss in its entirety, and GRANTS in part defendant’s second motion to dismiss.

ANALYSIS

With regard to defendant’s first motion to dismiss based on 28 U.S.C. § 2401(b), the established law is quite clear on the definition of when a cause “accrues.” “In medical malpractice cases ... the statute of limitations does not begin to run until after the patient discovers or in the exercise of reasonable diligence should discover his injury and its cause." (Emphasis supplied). Stoleson v. United States, 629 F.2d 1265, 1268 (7th Cir.1980).

It is not enough that a plaintiff knows of an injury unless he or she also knows that the treatment received vyas the probable cause of the injury. The case relied upon by defendant, United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979) only confirms this rule.

The issue in Kubrick was not whether the statute begins to run upon the discovery of the injury and its cause, but whether the statute is tolled until the discovery that the injury may have been negligently caused.

That he has been injured in fact may be unknown or unknowable until the injury manifests itself; and the facts about causation may be in the control of the putative defendant, unavailable to the plaintiff or at least very difficult to obtain. The prospect is not so bleak for a plaintiff in possession of the critical facts that he has been hurt and who has inflicted the injury. He is no longer at the mercy of the latter. There are others who can tell him if he has been wronged, and he need only ask. If he does ask and if the defendant has failed to live up to minimum standards of medical proficiency, the odds are that a competent doctor will so inform the plaintiff. United States v. Kubrick, at 122, 100 S.Ct. at 359.

Thus, the Court in Stoleson was correct in its holding that the statute of limitations does not run until discovery of both the injury and its cause. Stoleson v. United States, 629 F.2d 1265, 1268-1269 (7th Cir. 1980).

In the case at hand, plaintiffs dispute the date on which they learned of Kurtis’s injuries. Whether plaintiffs should have been aware of the seriousness of his injuries in June of 1979 is immaterial, since plaintiffs present an uncontested claim that they had no reason to suspect until August of 1979 that Kurtis’s injuries were allegedly caused by treatment received during his mother's .pre-natal care. Plaintiffs’ claim “accrued” when they learned that the cause of Kurtis’s injuries may have been the care Glenda received during her pregnancy while being treated by Air Force physicians. Plaintiffs made this discovery in August, 1979, and thus their complaint to the Air Force was timely filed on June 29, 1981.

Defendant’s second motion to dismiss involves a more complex issue. The Federal Tort Claims Act is a piece of legislation that waives the United States Government’s immunity from suit to give private individuals the ability to redress injuries suffered at the hands of the government. The Feres doctrine is a judicial exception to the Act that bars members of the armed services from suing for injuries caused by the negligence of other members of the service. The Court held, specifically, that “the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” Feres v. United States, 340 U.S. 135, 146, 71 S.Ct. 153, 159, 95 L.Ed. 152 (1950).

The Supreme Court outlined three major policy reasons for this holding. First, the relationship between the government and members of the armed forces is distinctly federal. Second, the government has a no-fault statutory compensation plan for military personnel. And third, it is necessary to protect military discipline.

Following the decision in Feres, the courts have consistently disallowed suits of servicemen injured while in “the course of activity incident to service.” This bar has included suits for medical malpractice arising from the treatment of servicemen admitted to military hospitals while off-duty. Shults v. United States, 421 F.2d 170 (5th Cir.1969). See also Henniger v. United States, 473 F.2d 814 (9th Cir.1973) (medical malpractice during process of discharging plaintiff from service); Harten v. Coons, 502 F.2d 1363 (10th Cir.1974) (medical malpractice during elective surgical procedure on servicemen).

In the case at hand, the alleged malpractice occurred while both parents were in the Air Force. Even though their claims have their sole origins in Kurtis’s claim, the fact that they were in the service at the time of the alleged malpractice bars them from recovery because of the policy reasons outlined in Feres. The relationship between Glenda and Paul and the United States government was “distinctly federal”; both Glenda and Paul have access to a no-fault compensation scheme in order to redress their injuries; and it would be against public policy to allow a suit where servicemen might question decisions made by military officers, thereby threatening military discipline. For these reasons, defendant’s motion to dismiss is GRANTED with regard to all claims of Glenda and Paul Utley.

Defendant’s motion to dismiss is DENIED, however, in the case of all claims of Kurtis Utley by his next friends, Glenda and Paul Utley. The reasoning behind the Feres doctrine applies to Kurtis in only the third policy consideration outlined above. Kurtis was never in the military and thus his relationship to the government is as a civilian and not “distinctly federal,” nor does Kurtis have access to the military’s no-fault compensation scheme. If Kurtis has, indeed, been injured by the government as alleged, and if the Feres doctrine is extended to include him, he will suffer damages for which there is no redress. This is profoundly unjust.

The only policy consideration of Feres that is applicable to the case at hand, and must be therefore be weighed carefully, is that of the potential threat to military discipline. In the case of Scales v. United States, 685 F.2d 970 (5th Cir.1982) the court extended the holding of Feres to bar the suit of an infant injured in útero through the negligent treatment of its mother both when she contracted rubella and during later pre-natal care. The court acknowledged that only the concern for military discipline expressed in Feres was applicable to the fact situation, and used this as its basis for barring the child’s suit. The court concluded that “the need to preserve military discipline, standing alone, can justify dismissal of suits arising out of activities incident to military service even when there was no command relationship between the claimant and the individual tortfeasor.” Ibid at 973.

In explanation, the court stated that “if the court must second-guess the judgment of military officers in assessing their treatment of a member of the armed services, the claim will be deemed to have a disruptive effect on discipline and will be dismissed.” Ibid. This view, however, is at odds with the view taken by the Seventh Circuit.

In West v. United States, 729 F.2d 1120 (7th Cir.1984) a soldier’s children were born with birth defects resulting from the Army’s negligent mistyping of their father’s blood during a pre-induction physical. This mistyping was ruled an injury incident to service by the court. The court in West found that, with regard to the Feres doctrine, there were two lines of cases dealing with suits by family members. “In the first line, courts have interpreted the doctrine to bar the claims of family members which derive from the injury to the service member ... However, in the second line of cases, the Feres doctrine has not applied to bar claims where spouses and children of service members have been injured in their own right by military personnel.” Ibid at 1123.

Because the only injury was that of the child’s, the father not being injured by the blood mistyping, the West case fell within the latter category. The West court distinguished' Scales by pointing out that the mother in Scales had suffered some injury at the hands of Air Force physicians. Ibid at 1127, fn. 6. In the case at hand, we have an identical situation to that of West where the only party injured by the alleged malpractice was the infant. Here, the parents’ claims derive solely from the child’s claims.

Thus, the only bar to the child’s suit is the concern for disrupting military discipline raised by Feres.

However, it is important to recognize that the military discipline factor is not an absolute. The civilian courts may inquire into military actions which have injured civilians even if the courts might in some degree have to ‘second-guess’ military decisions or require members of the armed forces to testify about their decisions and actions____ If military activity injures civilians as well as military personnel, the civilians may bring a tort claim against the government even though the case requires precisely the same inquiry that suits by military personnel would require. West at 1125. See also Hillier v. Southern Towing Co., 714 F.2d 714, 723 (7th Cir., 1983); Peterson v. United States, 673 F.2d 237 (8th Cir.1982); Allen v. United States, 527 F.Supp. 476 (D.Utah 1981); Lakeland R-3 School District v. United States, 546 F.Supp. 1039 (W.D.Mo.1982).

Thus, “the fact that a lawsuit might involve some inquiry into military activities is not, without more, a reason for barring the plaintiffs’ claims.” West at 1125.

The Seventh Circuit concluded that the test in the situation where a civilian dependent is injured is to what degree an action would threaten military discipline. The court pointed out that medical malpractice can occur in either a military or civilian setting and was, therefore, not an activity that was distinctly military in nature. An inquiry into medical malpractice would not involve an inquiry into an “activity integral to the soldiers’ military duty and training.” Ibid at 1126. Therefore, the court concluded that the threat to military discipline was minimal.

We have a virtually identical situation in the case at hand. The only party injured by the alleged malpractice is a civilian infant who has no federal relationship with the government and no remedy if his suit is barred. This child has no redress for his injuries through the military’s no-fault compensation plan since he is, and always has been, a civilian. Furthermore, the child’s suit brings into question only routine pre-natal care, which could be questioned in the civilian sector. The suit does *not involve an injury to a service member in the line of duty and thus will not bring into question any matters that are distinctly military as opposed to a situation where the child’s injury derived from the parent’s injury during military activities or projects. See, Monaco v. United States, 661 F.2d 129 (9th Cir. 1981).

Where the threat to military discipline is minimal, and where neither of the other Feres policies is implicated in any way, we will not extend Feres to these children’s claims. The Feres doctrine is a judicially-created exception to the applicability of a broad remedial statute. While the doctrine has withstood the test of time, Feres and its progeny do not require us to broaden the doctrine beyond the scope of the policies which are its foundation — particularly when we are confronted with purely civilian injuries. West at 1128.

This Court finds that Kurtis Utley’s suit poses little, if any, threat to military discipline for the reasons already discussed, and that West v. United States is the controlling case in this circuit.

It is hereby ORDERED, ADJUDGED and DECREED that defendant’s Motion to Dismiss is GRANTED with regard to all claims of Glenda Jean Utley and Paul E. Utley and DENIED with regard to all claims of Kurtis R. Utley by his next friends, Glenda Jean Utley and Paul E. Utley.

      . The courts have "... held repeatedly since Feres that claims based on medical malpractice fall within the bounds of the Feres doctrine when the plaintiff was a serviceman on active duty at the time of the alleged malpractice.” Scales v. United States, 685 F.2d 970, 973 (5th Cir.1982).

      . “The relationship between the Government and a serviceman’s dependents is not 'distinctly federal in character’ within the meaning of [the Feres] decision. That the dependents are the subjects of many rules and regulations promulgated by the Army is not to be denied, nor is the fact that they enjoy privileges by reason of their relation to the serviceman. Their status, with relation to the Government, however, is completely different from his. They are not subject to the orders of superior officers, and, to paraphrase the language of the Supreme Court they are not ‘serving the Government’ [and] they are not ‘on duty' ... It does not follow that, because these dependents enjoy privileges by reason of their relation to the serviceman, their rights to sue are derived from the serviceman’s status” Grigalauskas v. United States, 103 F.Supp. 543 (D.C.Mass.1951).


author: EDGAR, District Judge.

text:
    Michael A. BEARD, Plaintiff, v. INTERNAL REVENUE SERVICE, Defendant.
    Civ. 1-85-28.
    United States District Court, E.D. Tennessee, S.D.
    Aug. 21, 1985.
    Michael Beard, pro se.
    John W. Gill, U.S. Atty., Paul M. Predmore, Tax Atty., U.S. Dept, of Justice, Washington, D.C., for defendant.
   MEMORANDUM

EDGAR, District Judge.

This action is presently before the Court on defendant’s motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6). Jurisdiction of the Court is invoked pursuant to 26 U.S.C. §§ 7422(a) and 6703(c)(2). Plaintiff appears pro se before this Court.

Plaintiff in his complaint files a number of claims against the United States Government. First, plaintiff asserts that the Internal Revenue Service (“IRS”) illegally assessed back taxes and penalties for the years 1979 and 1980 solely against the plaintiff for taxes due on a joint return filed by plaintiff and his former wife. Plaintiff argues that the Internal Revenue Service should be required to capture one-half of the back taxes and penalties from plaintiff's former wife. Second, the plaintiff seeks an abatement of frivolous return penalties assessed for returns filed in 1980, 1981, and 1982. Plaintiff filed amended returns for these years claiming that money received for his labor was not income under the Sixteenth Amendment. The Government contends, alternatively, that the plaintiff has failed to file this proceeding within the required jurisdictional time limit or that the filed amended returns were in fact frivolous and therefore not eligible for an abatement. Third, plaintiff seeks abatement for a penalty for an allegedly false W-4 Form but plaintiff provides no facts relating to this form.

The Internal Revenue Service apparently sought payment solely from the plaintiff for the back taxes. In addition, the IRS rejected plaintiffs plea for abatement of the penalties relating to the allegedly frivolous returns. The Court will separately consider the issues relating to the assessment for back taxes, the penalties for the frivolous returns and the penalty for the false W-4 Form.

I. BACK TAXES FOR YEARS 1979 AND 1980.

The IRS argues that the plaintiffs failure to file a claim for refund for the back taxes assessed for the years 1979 and 1980 bars this suit, pursuant to 26 U.S.C. § 7422(a). An administrative claim for refund is a jurisdictional prerequisite to a refund suit. McConnell v. United States, 295 F.Supp. 605, 606 (E.D.Tenn. 1969); see also Republic Petroleum, 613 F.2d 518, 524 (5th Cir.1980). The Court sees no indication in the complaint that the plaintiff has ever filed a claim for a refund as required by the statute. Since a party seeking the auspices of the Court must demonstrate that the Court has jurisdiction, Rosemound Sand & Gravel Co. v. Lambert Sand & Gravel Co., 469 F.2d 416, 418 (5th Cir.1972), the Court will grant defendant’s motion to dismiss on those claims concerning back taxes and assessments for the years 1979 and 1980.

Plaintiff also argues that the IRS inappropriately attempted to collect all taxes relating to the 1979 and 1980 returns solely from the plaintiff and not from the plaintiff’s former wife. Given the Court’s ruling above, the Court finds it unnecessary to reach this question.

II. PENALTIES FOR 1980, 1981, AND 1982 TAX YEARS FOR FRIVOLOUS RETURNS.

Defendant argues that 26 U.S.C. § 6703(c)(2) requires that any party seeking a refund for penalties assessed must file a civil proceeding within thirty days of a rejection of an administrative claim. The defendant cites the language of the statute as supporting an absolute bar to a suit if it is not filed within thirty days. The Court cannot agree with defendant’s reading of the statute since the gist of subsection (c)(2) is to prevent the Government from proceeding against a plaintiff for any back taxes or penalties in a situation where a partial penalty payment has been made and a claim has been filed with the Internal Revenue Service. The defendant attempts to read too much into the statute by claiming that a failure to file a suit within thirty days after rejection of a claim by the IRS prevents a plaintiff from proceeding with a suit. The Court rejects this reading of the statute.

In the alternative, the defendant argues that as a matter of substantive law the returns filed by the plaintiff were frivolous. The defendant cites the long-standing proposition that money received for labor is income and subject to the federal income tax. See Googe v. Secretary of the Treasury, 577 F.Supp. 758 (E.D.Tenn.1983); Tibbetts v. Secretary of the Treasury, 577 F.Supp. 911 (W.D.N.C.1984). Defendant then argues that any attempt to impede the computation of the tax by an individual’s failure to provide essential information or by other conduct is subject to the penalties provided in the statute.

In the present matter, plaintiff did file returns for the years 1980, 1981, and 1982. Subsequent to the filing of those returns, plaintiff filed proposed amended returns (otherwise known as Forms 1040X), claiming that money received for his labor was not income and therefore was not subject to the federal income tax. The Court first notes that the right to amend income tax returns is a matter of discretion left to the Commissioner of the Internal Revenue Service or his designee. Evans Cooperage Co., Inc. v. United States, 712 F.2d 199, 204 (5th Cir.1983). Therefore, under any set of circumstances the Commissioner has wide latitude in determining whether an amended return will even be accepted by the IRS, before then making a determination of whether a return is frivolous.

Based on the present record, the Court cannot determine whether the frivolous return statute was also directed at those situations where proposed amended returns are filed. The Court will, therefore, deny defendant’s motion to dismiss those claims relating to the request for an abatement of the penalties assessed for the frivolous returns for the years in question.

III. FALSE W-4 FORM.

Plaintiff seeks a refund of a penalty assessed for filing an allegedly false W-4 Form but recites no facts concerning this form. Therefore, the Court will grant defendant’s motion to dismiss this claim.

IV. CONCLUSION.

The Court finds that the plaintiff has failed to comply with the jurisdictional prerequisites for a refund for taxes assessed and collected for the years 1979 and 1980 as they relate to the joint return filed by the plaintiff and his former wife. Therefore, the Court will grant the defendant’s motion to dismiss concerning claims relating to this assessment. The Court finds that it is unable to make a determination concerning the plea for abatement for penalties assessed for frivolous returns and therefore will deny defendant’s motion to dismiss the complaint concerning the allegedly frivolous returns. The plaintiff has recited no facts concerning the penalty assessed for an allegedly false W-4 Form and the Court will grant the defendant’s motion to dismiss this claim. An appropriate order will be entered herewith.

ENTER.

      . 26 U.S.C. § 6703(c) reads as follows:
      (c) Extension of period of collection where person pays 15 percent of penalty.—
      (1) In general. — If, within 30 days after the day on which notice and demand of any penalty under section 6700, 6701, or 6702 is made against any person, such person pays an amount which is not less than 15 percent of the amount of such penalty and files a claim for refund of the amount so paid, no levy or proceeding in court for the collection of the remainder of such penalty shall be made, begun, or prosecuted until the final resolution of a proceeding begun as provided in paragraph (2). Notwithstanding the provisions of section 7421(a), the beginning of such proceeding or levy during the time such prohibition is in force may be enjoined by a proceeding in the proper court.
      (2) Person must bring suit in district court to determine his liability for penalty. — If, within 30 days after the day on which is claim for refund of any partial payment of any penalty under section 6700, 6701, or 6702 is denied (or, if earlier, within 30 days after the expiration of 6 months after the day on which he filed the claim for refund), the person fails to begin a proceeding in the appropriate United States district court for the determination of his liability for such penalty, paragraph (2) shall cease to apply with respect to such penalty, effective on the day following the close of the applicable 30-day period referred to in this paragraph.


author: BELEW, District Judge.

text:
    Robert V. STUART v. EXXON COMPANY, U.S.A., A DIVISION OF EXXON CORPORATION.
    Civ. A. No. 1-85-58-K.
    United States District Court, N.D. Texas, Abilene Division.
    Aug. 26, 1985.

      Jeffry F. Thomason, Todd, Barron & Bridges, Odessa, Tex., for plaintiff.
    William R. Hurt, Peggy Donley, Exxon Co., U.S.A., Houston, Tex., for defendant,
   MEMORANDUM OPINION

BELEW, District Judge.

Plaintiff in the above-styled and numbered cause has moved the Court for a preliminary injunction restraining Defendant from taking any action interfering with Plaintiff’s operation of his franchised Exxon station, as well as a Court order compelling continuation of Plaintiff’s franchise relationship with Defendant. Defendant has filed extensive opposition papers as well as a Motion for Summary Judgment, to which Plaintiff has responded, claiming it is entitled not to renew Plaintiff’s franchise as a matter of law. Having, carefully considered the pleadings and all supporting documentation filed therewith, the Court finds that there exists no genuine issue as to any material fact nor any serious questions going to the merits which would make such questions a fair ground for litigation. We, therefore, deny all relief requested by Plaintiff and grant summary judgment to Defendant for the reasons hereinafter stated.

The agreements between Plaintiff and Defendant in this matter constitute a “franchise” as that term is defined in Section 15 of the Petroleum Marketing Practices Act (“PMPA”), 15 U.S.C. § 2801(1). Because the PMPA governs this cause of action, we will begin our analysis by outlining some of its relevant portions.

The PMPA is a comprehensive regulatory scheme governing the circumstances under which a franchisor may terminate a franchise relationship with a franchisee. See 15 U.S.C. §§ 2801-2806 (1982). Pursuant to this Act, a franchisor may terminate or fail to renew a franchise relationship only in accordance with very specific notice requirements and for one of the reasons expressly listed by the statute.

Among other reasons, a franchisor may terminate or not renew a lease based on: (1) “a failure by the franchisee to comply with any provision of the franchise ... ”; (2) “a failure by the franchisee to operate the marketing premises in a clean, safe and healthful manner, if the franchisee failed to do so on two or more previous occasions and the franchisor notified the franchisee of such failures”; and (3) a good faith determination by the franchisor “that renewal of the franchise relationship is likely to be uneconomical to the franchisor ... ” .

If the franchisor seeks not to renew on the ground of failure to operate in a clean and safe manner: “it is intended that a course of conduct indicating the unsuitability of the franchisee to continue operation should be demonstrated by the failures, the repeated notices from the franchisor to the franchisee seeking proper operation and the continued failure of the franchisee to operate the premises in the desired manner.” Frisard v. Texaco, Inc., 460 F.Supp. 1094, 1101 (E.D.La.1978) (citing legislative explanation of PMPA).

The PMPA expressly grants the Court the power to award mandatory or prohibitive injunctive relief. According to Section 2805(b)(2):

[T]he court shall grant a preliminary injunction if (A) the franchisee shows (i) the franchise of which he is a party has been terminated or the franchise relationship of which he is a party has not been renewed, and (ii) there exist sufficiently serious questions going to the merits to make such questions a fair ground for litigation; and (B) the court determines that, on balance, the hardships imposed upon the franchisor by the issuance of such preliminary injunctive relief will be less than the hardship which would be imposed on the franchisee if such preliminary injunctive relief were not granted. (emphasis added)

We shall now set forth the factual context to which these legal principles are applicable.

In 1977, Plaintiff entered into the first of a series of contractual agreements with Defendant whereby he was to operate the Exxon service station located at Interstate 20 and FM Road # 540 in Eastland, Texas. His initial lease as well as his most recent one provided that Plaintiff, as lessee, agrees: ... “(c) to keep the premises, including buildings, driveways, and ramps in a clean, sanitary and orderly condition; (d) to operate the business conducted on the premises in a safe and orderly manner allowing no fire hazards, unsanitary or dangerous conditions to exist.”

On March 19, 1981, Mr. B.J. Calfee of Exxon’s Marketing Department, Midland District, inspected Plaintiff’s station and completed an “Appearance Inspection” report. The report reflects a general lack of maintenance of the station which was little improved by August 4, 1981, when a second inspection was performed. By letter dated August 6, 1981, Mr. Calfee advised Plaintiff that his lease required him to keep the premises in a clean, sanitary, orderly and safe condition. Additionally, Mr. Cal-fee offered assistance to help Plaintiff correct the then current problems.

On August 27, 1981, Hubert S. Hays, Jr., a Marketing Representative with Exxon, did a follow-up inspection of Plaintiff’s premises. In his September 1, 1981 letter to Plaintiff he noted no improvement in the cleanliness and safety of the station. He reminded Plaintiff that he was in violation of his lease, and was risking termination or nonrenewal of the lease because of the unclean and unsafe condition of the premises. Once again, assistance in correcting the problems was offered.

At about this time, Exxon began considering the question of whether or not to renew Plaintiffs lease because the lease term was to expire in April of 1982. Exxon finally decided to renew the lease despite the problems Plaintiff was having in properly maintaining the station. As Mr. Hays has stated by affidavit:

It was decided that Mr. Stuart should be given the benefit of the doubt and given an opportunity to correct the substandard conditions at his service station. At the time I presented his new contracts to him in early 1982, I met with Mr. Stuart at some length and reviewed the terms of the contracts with him in detail. Particular emphasis was placed upon those provisions of his lease agreement which required him to maintain the premises in a clean, sanitary and orderly manner. Mr. Stuart assured me in no uncertain terms that he understood what was expected of him and that he would take the necessary steps to correct the problem. On the basis of those assurances, Exxon entered into the March 5, 1982 retail service station lease and accompanying sales agreement with Mr. Stuart.

The new lease term was to expire on May I, 1985.

Mr. Calfee inspected the station again on April 20, 1982 and found some improvement in its appearance. Mr. Hays informed Plaintiff of this fact by letter dated April 23, 1982. However, Mr. Hays noted that “the store is still not up to the standards which we discussed in my office several weeks ago.” A reinspection was planned for May 10, 1982 and once again, Mr. Hays requested that Plaintiff contact him for assistance.

The May 10, 1982 inspection revealed limited improvement. However, the uncorrected conditions became significantly worse by the time Exxon inspected again on July 14, 1982. Indeed, Exxon’s July 17, 1982 letter to Plaintiff, which lists the maintenance problems in great detail, is reminiscent of the very first letter Plaintiff received back in March of 1981. Again, assistance was offered and a new inspection was set for July 19, 1982. The July 19, 1982 inspection revealed little or no improvement and this fact was communicated to Plaintiff in an August 10, 1982 letter.

On December 2, 1982, Exxon wrote to Plaintiff regarding inspections performed on October 21, 1982 and November 19, 1982, stating “your station’s appearance on both occasions ... (is) completely unacceptable.” Again, Exxon offered assistance. Mr. W.T. Parker, also of Exxon’s Marketing Department, apparently inspected the station again on February 2, 1983 and August 24, 1983. By a letter dated August 31, 1983 to Plaintiff, he stated in reference to those two inspections “(I) again found the appearance and cleanliness of your store deplorable.” Plaintiff was again reminded that he was in serious violation of his lease and that if he failed to make improvements “your lease may not be renewed as provided by the Petroleum Marketing Practices Act.”

On April 12, 1984 and September 13, 1984, similar letters were sent to Plaintiff revealing equally poor inspection results. On January 17, 1985, Plaintiff was sent formal written notice that his lease would not be renewed effective 12:00 Noon on May 1, 1985. The letter stated in pertinent part:

Our reason for taking this action is that you failed to maintain the premises in a clean, safe and healthful manner____ Each of our (post-inspection) letters set out specific items needing prompt corrective action. You failed to reply to these letters; and despite these requests from Exxon Sales personnel, this situation has persisted. Also, you have failed to supply proof of insurance on these premises, since your insurance expired in May. The basis for nonrenewing your franchise relationship is found under Section 2802(b)(3)(C) of the Petroleum Marketing Practices Act____ Also, in paragraphs 6(c) and (d) of your lease, you agreed to ‘keep the premises (safe).’

The letter further advised Plaintiff of the Exxon Dealer Grievance Procedure, a system which allows dissatisfied dealers to present their grievances to up to three different reviewing bodies, all made up of Exxon personnel at different echelons of the corporate hierarchy.

Plaintiff requested and was granted an initial review of the decision not to renew at what is referred to by Exxon as the “area level.” At that level, Plaintiff met with Mr. Terry, Area Manager, Mr. Hays and Mr. Parker who discussed Plaintiff’s grievances with him. By letter dated February 12, 1985, Mr. Terry informed Plaintiff that the panel had decided to deny his request to have a new three year lease. In that letter, Plaintiff was informed that he could seek review of this decision on a regional level by a Regional Dealer Relations Committee, a committee of field managers who would have had no prior involvement with Plaintiff’s grievance.

Plaintiff sought review at this second level but was again denied his requested relief by letter dated April 8, 1985. In that letter, Plaintiff was informed of the final level of review that he could seek, namely the Headquarters Dealer Relations Committee.

Plaintiff proceeded to seek a hearing with the Headquarters Dealer Relations Committee, the final recourse under Exxon’s grievance procedure. By letter dated April 25, 1985, he was granted a hearing along with an extension of the lease term until June 1, 1985. On May 30, 1985, Plaintiff filed the instant lawsuit. By letter dated June 6, 1985, Exxon informed Plaintiff that the decision for nonrenewal was confirmed and that Plaintiff would have until July 1, 1985 to surrender the premises.

On June 26, 1985, this Court conducted a hearing on this matter, wherein the parties stipulated to the necessity of a temporary restraining order for sixty days or until the date of this Court’s decision, whichever would come first. It is in this factual context that we now apply the principles of the PMPA discussed earlier.

We find that Defendant’s decision not to renew Plaintiff’s lease agreement was in full compliance with the PMPA. The notice was hand delivered in writing more than ninety days prior to the date on which nonrenewal was to take effect, it contained a statement of intention not to renew, the date on which nonrenewal would take effect and the summary statement prepared by the Department of Energy. Hence, the notice was effected exactly as the PMPA requires. See 15 U.S.C. § 2804; Cf. Escobar v. Mobil Oil Corp., 678 F.2d 398, 400 (2d Cir.1982); Brach v. Amoco Oil Co., 677 F.2d 1213, 1225-26 (7th Cir.1982) rem’d, 570 F.Supp. 1437 (N.D.Ill. 1983).

Plaintiff argues that the notice was rendered unclear, untimely and hence, defective by Exxon’s reference in the January 17, 1985 letter to an alleged failure by Plaintiff to provide insurance. We disagree. First of all, in his deposition testimony, James Terry has made clear that the only reason for nonrenewal is the cleanliness and safety problems. Secondly, even if notice as to Plaintiffs lack of insurance is defective, this fact does not render defective the notice that Defendant gave regarding the cleanliness and safety problems. See Brown v. American Petrofina Marketing, Inc., 555 F.Supp. 1327, 1334-35 (M.D.Fla.1983), aff'd without opinion, 733 F.2d 906 (11th Cir.1984).

Defendant’s decision was also in compliance with the provisions of the PMPA requiring that nonrenewal be premised on stated statutory grounds. In fact, Defendant specifically cited two statutory grounds for nonrenewal, lack of cleanliness and safety, and violation of lease provisions. See Defendant's Motion, Exhibit 20; 15 U.S.C. §§ 2802(b)(2)(A), (b)(3)(C). As to the lack of cleanliness, Plaintiff failed to operate the premises in a clean, safe and healthful manner on more than two occasions prior to his receipt of the January 17, 1985 letter, and Plaintiff was notified of these failures.

Plaintiff challenges the grounds for termination by arguing that the station in fact was clean. He has gone to considerable lengths to convince the Court that his station was as clean and safe as any in its area. He has furnished the Court with the affidavits of three of his employees stating that the station is maintained to the best of their ability, photographs of two “Exxon-owned” stations around Eastland as they appeared on July 17, 1985, photographs of non-Exxon owned service stations in the Eastland area as they appeared on July 14, 1985, and a set of some one hundred completed questionnaires asking customers about the cleanliness of the service station.

In its opposition papers, Defendant has furnished the Court with affidavits of Hubert S. Hays, Jr. and James E. Terry, a series of photographs of Plaintiff’s station as it appeared at different times from August 17, 1981 through July 1, 1985, and photographs of the Exxon station in Cisco, Texas as it appeared on July 1, 1985.

While the Court has carefully reviewed all the documentation it has been supplied on the issue of cleanliness and safety, we find that the photographs are the most telling evidence and that of the sets of photographs we have reviewed which depict the upkeep of the various stations in the Eastland area from the point of view of grease on the pavement, unmowed lawns, unclean bathrooms and general clutter, Plaintiff’s station is comparatively badly maintained.

Plaintiff’s riposte is that Defendant itself has caused some of the maintenance problems at the service station by failing to repair certain fixtures or equipment in violation of the lease agreement. First of all, Plaintiff, by his own admission, never made requests for repairs in writing as the lease required.

Moreover, Plaintiff acknowledged at his deposition, taken eleven days before he swore out his affidavit, that he had no reason to believe that Exxon’s failure to renew his contracts were a result of the failure of Exxon to repair any of the items that the lease obligates it to repair.

Finally, the photographs of Plaintiff’s station reveal that many of the cleanliness problems such as the general clutter, trash and unmowed lawns, have nothing to do with any repairs that Defendant could conceivably make. See Azcuy v. Amoco Oil Co., No. C85-1884A, slip op. at 7 (N.D.Ga. June 11, 1985) (unpublished).

Plaintiff also suggests that Exxon’s inspection methods are unfair, stating: “Exxon uses impromptu ‘sales calls’ by its field representatives, who drop by in order to take pictures of work in progress and occasionally fill out a report based, at best, on their opinion of what they see.” We reject this argument as well.- First, many of the inspections were not “impromptu” at all, but rather were scheduled for a specific date, a fact which would have allowed Plaintiff to clean up the station specifically for the inspection, had he been so motivated. Furthermore, the completion of inspection reports was hardly “occasional”. Defendant has submitted ten such reports for the Court’s consideration.

Most importantly, in Plaintiff’s own words “cleanliness or noncleanliness is subjective, ... opinion instead of fact.” The Court can think of no other way of enforcing the statutory standard of cleanliness and safety other than sending inspectors to the stations to determine their condition. The Exxon inspectors had objective criteria by which to examine Plaintiff’s station as set forth in the Appearance Inspection forms, and the problems found on each occasion were clearly set forth. We find that Defendant’s evaluation procedures were extremely fair to Plaintiff.

Plaintiff’s final argument suggests that his lease was not renewed because his service station was not as profitable to Exxon as other stations and therefore, Exxon was using cleanliness and safety as an excuse to lease the station over to a distributor who would then be responsible for the day to day management of the station, thereby relieving Exxon of that burden.

We are wholly unpersuaded by this argument primarily because the PMPA expressly allows a franchiser to terminate an unprofitable franchise if the franchisor has determined lack of profitability in good faith. Hence, Defendant would have no reason to use a false pretense if unprofitability was in fact the reason it chose not to renew the franchise. See generally, Brach v. Amoco Oil Co., 677 F.2d 1213, 1222-24 (7th Cir.1982) (discussion of application of unprofitability rationale in PMPA cases) rem’d 570 F.Supp. 1437 (N.D.Ill. 1983).

In conclusion, the physical condition of Plaintiffs station along with the repeated notices from Exxon to Plaintiff seeking proper operation and the continued failure of the Plaintiff to improve the condition of the premises in any permanent way over a three and a half year time period indicates that Exxon’s decision not to renew is proper under Section 2802(b)(3)(C) of the PMPA. See Saad v. Shell Oil Co., 460 F.Supp. 114 (E.D.Mich. 1978). Under these circumstances, we can find no serious questions going to the merits to make such questions a fair ground for litigation. See Azcuy v. Amoco Oil Co., No. C85-1884A (N.D.Ga. June 11, 1985) (unpublished), Cianfrocco v. Gulf Oil Corp., 594 F.Supp. 360, 363-64 (N.D.W.Va. 1984) ; Saad, 570 F.Supp. at 118.

Defendant has moved the Court for an award of attorneys’ fees pursuant to Section 2805(d)(3). Under that section, the Court may in its discretion award attorney’s fees if we deem Plaintiff’s action frivolous. We decline to find Plaintiff’s action frivolous and therefore deny Defendant’s request in this regard in all respects. See Brown v. American Petrofina Marketing, Inc., 555 F.Supp. 1327, 1336 (N.D. Fla.1983) aff'd without opinion, 733 F.2d 906 (11th Cir.1984); Cf. Zacharias v. Shell Oil Co., Business Franchise Guide (CCH) If 8151 (E.D.N.Y.1984).

Plaintiff’s request for injunctive relief is hereby denied and summary judgment is granted in favor of Defendant. Judgment will be entered with this opinion.

      . These notice requirements are set forth at 15 U.S.C. § 2804. See infra at pp. 652-53.

      . The grounds for termination and nonrenewal are fully set forth at 15 U.S.C. § 2802(b).

      . 15 U.S.C. § 2802(b)(2)(A).

      . 15 U.S.C. § 2802(b)(3)(C).

      . 15 U.S.C. § 2802(b)(3)(D)(i)(IV).

      . 15 U.S.C. § 2805(b)(2).

      . See Defendant Exxon Corporation’s Memorandum of Law in Support of its Motion for Summary Judgment and in Opposition to Plaintiff’s Motion for Preliminary Injunction ("Defendant’s Motion"), Exhibit 1.

      . See Defendant's Motion, Exhibit 3.

      . See id., Exhibit 5.

      . See id.

      . See id., Exhibit 6.

      . See Affidavit of Hubert S. Hays, Paragraph 7.

      . See id., Exhibit 10.

      . See id., Exhibit 11.

      . See id., Exhibit 12.

      . See id., Exhibit 13.

      . See id., Exhibit 16.

      . See id., Exhibit 17.

      . See id.

        . See id., Exhibit 21.

      . See id., Exhibit 20.

      . See id., Exhibit 20.

      . See id., Exhibit 22.

      . See id., Exhibit 21.

      . See id., Exhibits 25, 26.

      . See Plaintiffs Brief in Support of Complaint for Injunctive Relief ("Plaintiffs Brief’), pp. 12-13.

      . Deposition of James E. Terry, p. 31, lines 3-6, p. 47, line 20, p. 48, line 17.

      . See Affidavit of Robert V. Stuart, Exhibit A.

      . See id., Exhibit B.

      . See id., Exhibit C. Additionally, Plaintiff has submitted transcripts of the deposition testimony of James E. Terry and Hubert S. Hays, Jr.

      . See Affidavit of Hubert S. Hays, Jr., Exhibit 1.

      . See id., Exhibits 2 and 3. Additionally, Defendant has submitted transcripts of the deposition testimony of Robert V. Stuart.

      . The conditions of an Exxon station in Bronte, Texas also rate low in terms of cleanliness of the restrooms. Defendant informs the Court that this station is now closed. Affidavit of Hubert S. Hays, Jr., paragraph 15.

      . See Affidavit of Robert V. Stuart, paragraph 11. Paragraph 7(a) of the lease agreement provides in pertinent part:
      Exxon agrees at its own expense, to make all repairs (which Lessee is not required under Section 6 hereof to make) to the premises leased hereunder upon written notice from Lessee to Exxon ...; provided, however, that such repairs are, in Exxon’s sole judgement (sic), necessary in consideration of the remaining term of the lease or have not been caused by negligence of or misuse of Lessee

        See Deposition of Robert V. Stuart, Exhibit 1.

      . See id, p. 204, lines 22-25. Nevertheless, Plaintiffs Exxon sales representative Mr. Hubert Hays would try to provide Plaintiff with verbally requested repairs. See Affidavit of Hubert S. Hays, Jr., paragraph 13.

      . See Deposition of Robert V. Stuart, p. 165, lines 4-9.

      . Plaintiffs Brief, p. 8.

      . See, e.g., Defendant's Motion, Exhibits 10, 11 and 12.

      . See Defendant’s Motion, Attachments to Exhibits 6, 11, 13, 15 and 16.

      . See Plaintiff's Brief, p. 13.

      . Throughout his pleadings, Plaintiff places heavy emphasis on his attempts to correct the maintenance problems brought to his attention. See, e.g., Affidavits of Joy Rose, Roger Reep and Johnny Rose; Plaintiff's Brief in Response to Defendant’s Motion for Summary Judgment, pp. i, 7.
      Whatever improvements were made were apparently not done on any long term basis since:
      (1) letters indicating problems were sent to Plaintiff on a regular basis up until Plaintiff was notified of Exxon's intention not to renew; and
      (2) Exxon evidently took care to note improvement in its letters to Plaintiff when it found improvement. See e.g., Defendant's Motion, Exhibit 10. Very few of the letters attached to Plaintiffs Motion reflect that improvements had been made.

      . See Plaintiff’s Brief at p. 17-19.

      . See 15 U.S.C. § 2802(b)(3)(D)(i)(IV). See supra, p. 650.

      . See Defendant’s Motion, pp. 31-37.


author: DITTER, District Judge.

text:
    UNITED STATES of America v. George P. GAKOUMIS, May H. Gakoumis.
    No. Crim. 85-138.
    United States District Court, E.D. Pennsylvania.
    Aug. 30, 1985.

      Edward S.G. Dennis, Jr., U.S. Atty., Joanna M. Jacobs, Asst. U.S. Atty., Philadelphia, Pa., for the U.S.
    Robert J. O’Shea, Jr., Marilyn Gelb, Philadelphia, Pa., for defendants.
   MEMORANDUM

DITTER, District Judge.

Defendants in this tax prosecution have filed a “motion to dismiss the indictment due to undue influence” and a “motion to amend and supplement motion to dismiss, application for bill of particulars, and memorandum of law thereto; motion to reconsider denial of co-defendant’s motion to inspect grand-jury proceedings.” Each of these motions puts into issue matters occurring before the grand jury. Based on my in camera review of the documents and transcripts submitted by the government, and for reasons that follow, these motions will be denied.

The indictment charges defendants with five counts of making false statements on a tax return, in violation of 26 U.S.C. § 7206(1). Specifically, the government contests the validity of deductions taken by Mr. and Mrs. Gakoumis for alleged contributions to the Independent Universal Life Church of Willow Grove, an entity which defendants were instrumental in organizing.

Defendants first contend that the grand jury may have engaged in an unconstitutional inquiry into the religious nature of the church by focusing on the reasons for which it was organized and the manner in which it operated. I have already ruled that this type of inquiry does not offend the first amendment. See United States v. Gakoumis, 624 F.Supp. 655 (E.D.Pa.1985) (citing Hall v. Commissioner, 729 F.2d 632, 635 (9th Cir.1984); United States v. Moon, 718 F.2d 1210, 1226-28 (2d Cir.1983); cert. denied, 466 U.S. 971, 104 S.Ct. 2344, 80 L.Ed.2d 818 (1984)). Consequently this ground offers no basis for dismissal of the indictment, and, in turn, no basis for disclosure of the grand jury materials. See Fed.R.Crim.P. 6(e)(3)(C)(ii).

Defendants also contend that the government may have engaged in grand-jury shopping and that, if so, the indictment should be dismissed. While the government admits that two grand juries were involved in the investigation of this matter, the transcripts belie defendants’ contention that the government shifted the presentation of evidence from the first grand jury to the second grand jury once experience with the first grand jury demonstrated that it was not favorable to the government’s position.

My in camera review of the transcripts, subpoena records, and the government’s affidavit reveals that no grand-jury abuse took place. The first grand jury involved served, mainly to subpoena documents, was not offered any substantive evidence on the question of whether Mr. and Mrs. Gakoumis had violated the tax laws, and was not presented with an indictment. The second grand jury heard testimony and considered certain documentary evidence. This grand jury was presented with an indictment, which it returned.

I have serious doubts whether “grand-jury shopping” would ever constitute undue influence justifying dismissal of an indictment. A subsequent grand jury has the power to indict upon a charge that has been considered previously and rejected by a prior grand jury. See United States v. Schack, 165 F.Supp. 371, 375 (S.D.N.Y. 1958). See also United States v. Thompson, 251 U.S. 407, 40 S.Ct. 289, 64 L.Ed. 333 (1920); Robert Hawthorne, Inc. v. Director of Internal Revenue, 406 F.Supp. 1098, 1116 (E.D.Pa.1976) (Becker, J.). It follows that it would be permissible for the government to withdraw from a grand jury’s consideration a case to which it does not seem receptive to enable it to present the case to another grand jury on a subsequent occasion.

Even if a finding of grand-jury shopping could support dismissal of an indictment, it is clear it did not take place here. The first grand jury’s term expired while it was still gathering evidence. Once the evidence was assembled, it was presented to the second grand jury, whose term had just commenced. The propriety of having one grand jury subpoena evidence and another grand jury presented with that evidence is beyond question. See, e.g., Thompson, 251 U.S. at 407, 40 S.Ct. at 290; In re Grand Jury Proceedings, 658 F.2d 782, 784 (10th Cir.1981); Robert Hawthorne, Inc., 406 F.Supp. at 1117-18; United States v. Kleen Laundry and Kleeners, Inc., 381 F.Supp. 519, 522-23 (E.D.N.Y.1979). See also Fed.R.Crim.P. 6(e)(3)(C)(iii).

Finally, defendants contend that the government exerted undue influence on the grand jury by presenting it with an indictment which had already been signed by the United States Attorney. One reported decision favors defendants’ position. In United States v. Gold, 470 F.Supp. 1336, 1355 (N.D.Ill.1979), the government could not show that it had not presented a presigned indictment to the grand jury. The district court dismissed the indictment, stressing “that [t]he very purpose of the requirement that a man be indicted by a grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge____” Id. (quoting Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct. 270, 273, 4 L.Ed.2d 252 (I960)). The Gold court concluded that the government conduct in the case made a “mockery of the grand jury system.” Id.

No other reported decision has gone this far. With all due respect to the Gold court, I cannot conclude that the government exerts any influence by presenting a pre-signed indictment to the grand jury. The signature of the United States Attorney neither certifies that the indictment is in proper form nor attests to the grand jury’s conduct. See United States v. Cole, 755 F.2d 748, 757 (11th Cir.1985); United States v. Cox, 342 F.2d 167, 171-72 (5th Cir.1965). “Instead, the United States Attorney’s signature evidences a recognition that the government attorney has exercised his discretion to permit the indictment to be brought, and demonstrates that he joins the grand jury in commencement of the criminal proceeding.” Cole, 755 F.2d at 757. See also United States v. Levine, 457 F.2d 1186, 1189 (10th Cir.1972). See generally Fed.R.Crim.P. 7(c)(1) (requiring the United States Attorney to sign an indictment).

Any alleged undue influence produced by pre-signature presumably stems from the signature’s tacit urging that the grand jury return the indictment. While the grand jury serves to protect the innocent against “hasty, malicious and oppressive persecution,” Wood v. Georgia, 370 U.S. 375, 390, 82 S.Ct. 1364, 1373, 8 L.Ed.2d 569 (1962), and in theory acts independently of the prosecutor, Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct. 270, 273, 4 L.Ed.2d 252 (1960), with time it has been accepted that the government may play a significant role in the presentation of cases to the grand jury. See generally 1 C. Wright, Federal Practice and Procedure § 101 (1982). That the government wishes the grand jury to return an indictment is readily apparent from the prosecutor’s examining witnesses, presenting documents, and summarizing evidence. See United States v. Kleen Laundry and Kleeners, Inc., 381 F.Supp. 519, 521 (E.D.N.Y.1974).

With the government so actively participating in the presentation of a case to the grand jury, any additional suggestiveness produced by pre-signature is somewhere between nonexistent and de minimis. This conclusion is not inconsistent with those cases which focus on matters other than pre-signing to determine whether the prosecution has exerted undue influence over, the grand jury. See Cole, 755 F.2d at 757; United States v. Brown, 684 F.2d 841, 842 (11th Cir.1982); United States v. Civella, 666 F.2d 1122, 1127 (8th Cir.1981); Singer, 660 F.2d at 1302; United States v. Climatemp, Inc., 482 F.Supp. 376, 386 (N.D.Ill. 1979), aff'd mem., 705 F.2d 461 (7th Cir.), cert. denied, 462 U.S. 1134, 103 S.Ct. 3116, 77 L.Ed.2d 1370 (1983); United States v. Tedesco, 441 F.Supp. 1336, 1342 (M.D.Pa. 1977).

Even if pre-signature presents an issue which, if combined with other prejudicial conduct, could warrant dismissal for undue influence, it is apparent from review of the transcripts that no other prejudicial conduct took place in this case.

      . In camera review confirms that the grand jury did not rely on impermissible factors to return the indictment.

        . While the Eighth Circuit has suggested that government attorneys not pre-sign an indictment, it has also emphasized that pre-signing alone "is not significant enough to require dismissal of an indictment____” United States v. Singer, 660 F.2d 1295, 1302 (8th Cir.1981).


text:
    Richard D. McINTYRE, Frank McCloskey, Intervenor, v. Betty MORGAN, A1 Inman, Don Lutz, O.K. Anderson, Becky Skillman, Carolyn McGuire, Patricia Haley, Janett Padgett, Dixie Frederick, Paula Etheridge, Nedra Groves, Virginia Higgins, and Jewell Sweeney.
    No. EV 85-143-C.
    United States District Court, S.D. Indiana, Evansville Division.
    Sept. 13, 1985.

      Michael T. Rudicil, Bloomfield, Ind., for Inman.
    Jack R. Robinson, Rockport, Ind., for Groves.
    James C. Tucker, Paoli, Ind., for Padgett.
    Robert G. Leonard, Washington, Ind., for Morgan.
    Michael B. Lett, Lett & Jones, Loogootee, Ind., for McGuire.
    Henry C. Hudson, Hawley, Hudson & Almon, Mt. Vernon, Ind., for Etheridge.
    Jay D. Allen, Allen & Newkirk, Salem, Ind., for Sweeney.
    Robert J. Fair, Fair & Nixon, Princeton, Ind., for Lutz.
    James R. Trulock, II, Monroe County Atty., Bloomington, Ind., for Haley.
    Lockyear & Kornblum, Evansville, Ind., Lawrence J. Halloran, Washington, D.C., Edward 0. DeLaney, Stanley C. Fickle, David F. Hamilton, Barnes & Thornburg, Indianapolis, Ind., for McCloskey.
   MEMORANDUM ORDER

BROOKS, District Judge.

This cause is presently before the Court upon a variety of motions which have been filed by the parties. Intervenor Frank McCloskey has orally renewed a motion to dismiss which he had previously filed and to which plaintiff, Richard McIntyre, had responded, but which the Court has not specifically ruled upon. In addition, McCloskey has also filed a motion to quash notices of depositions and subpoenas duces tecum served upon the defendant county clerks, Betty Morgan, A1 Inman, Janett Padgett, and Becky Skillman. Defendant Al Inman has also filed a motion to quash the same notice of deposition and subpoena duces tecum. Finally, McIntyre has filed a motion for relief from this Court’s Order of May 17, 1985, which permanently enjoined the defendant county clerks from disposing of or destroying any election materials, voting materials, or ballots used in the November 6, 1984, general election and ordered the continued impoundment of said materials until further order of the Court. Argument on the above motions was heard on September 11, 1985, and the Court deems. the matters ripe for ruling.

Plaintiff filed his Complaint for Injunction on April 30, 1985, naming as defendants thirteen (13) of the fifteen (15) county-clerks within the Eighth Congressional District. Essentially, plaintiff has alleged that certain members of the Task Force for the Committee on House Administration as well as certain members of the Committee and the House itself have violated his and other persons’ constitutional and voting rights; have violated various provisions of Indiana State Election law; and that there is presently, and will be in the future, other litigation which seeks to redress these wrongs. With respect to the named defendants, plaintiff has alleged only that the county clerks are custodians of the election materials and ballots used in the November 6, 1984, general election; that such materials shall, pursuant to Ind.Code § 3-1-5-12, be destroyed at the expiration of six (6) months from the date of the election; and that the preservation of the election materials and ballots is necessary in order for plaintiff and others to pursue remedies for deprivation of their constitutional rights, and the maintenance of a contested election action by McIntyre pursuant to the Federal Contested Elections Act (“FCEA”) 2 U.S.C. § 381 et seq. Accordingly, plaintiff requested that the Court issue a preliminary and permanent injunction enjoining the defendants from destroying or otherwise disposing of any election materials used in the November 6, 1984, election until such time as all litigation concerning the election for Office of Representative in Congress for the Eighth Congressional District had been disposed of and for an order requiring the clerks of Lawrence, Greene, Organe and Daviess Counties to open and count thirty-two (32) unnotarized absentee ballots which they have in their possession.

On April 30, 1985, the same day that plaintiff filed his complaint herein, the Court issued a temporary restraining order to prevent the destruction of any election materials by the county clerks. This order was extended on May 9, 1985. On May 17, 1985, after having been advised by the defendants that there was no objection to the continued impoundment of the election materials and ballots, the Court issued an order which “permanently” enjoined the defendants from disposing of or destroying any election materials or ballots used in connection with the November 6, 1984, election, or any subsequent recounts, until further order of the Court. The Court however refused to order the opening and counting of the thirty-two (32) unnotarized absentee ballots which plaintiff sought pending a determination by the Court of the issues raised by the motion to dismiss. On August 9, 1985, McIntyre served the ■clerks of Lawrence, Greene, Orange and Daviess counties with notices of depositions and subpoenas for August 21, 1985, which commanded the clerks to bring “all absentee ballots for the November 6, 1984, general election which remain unopened and uncounted after the Congressional recount.” Due to problems with service of notice on Intervenor McCloskey, these notices were vacated and the clerks were renoticed for September 5, 1985. On September 3, 1985, defendant Inman filed a motion to quash the subpoena and on September 5, 1985, McCloskey filed his motion to quash all of the subpoenas served on the clerks. It was agreed, during a telephone conference with the parties, that these depositions would be rescheduled for September 12, 1985, in order to give the parties an opportunity to argue the motions to the Court on September 11, 1985.

At the hearing, McCloskey renewed his motion to dismiss the complaint in this action. In support of the motion, McCloskey argues that the Court lacks jurisdiction over the subject matter of this suit; that the complaint fails to state a claim upon which relief can be granted; that the claims presented are moot; and that the claims are barred by the doctrines of res judicata and collateral estoppel. McIntyre rejoins that McCloskey may not now pursue the motion to dismiss since the Court has already granted part of the relief which was sought; i.e., permanently enjoining the clerks from disposing of or destroying the election materials, and that the Court lacks the authority to dismiss the action at this time in light of the Court’s earlier order enjoining the defendants. The Court believes otherwise.

First of all, the Court is of the opinion that plaintiff misconstrues the nature of the Court’s May 17th Order. At the hearing held on that date, arguments were presented on McCloskey’s motion to dismiss. And although both McCloskey and certain of the clerk defendants indicated that they had no objection to a continuance of the order preserving the ballots, it was extremely clear that both desired it to be for a limited period of time, notwithstanding plaintiff’s request that defendants be permanently enjoined. Additionally, counsel for plaintiff indicated, toward the conclusion of the hearing, that what he desired was a temporary continuance of the restraining order so that he could contact the clerks of all counties regarding their objections to the Court’s impoundment order, and that he would submit an amended order which would resolve their objections. The Court, after listening to the arguments of counsel, stated that in its view plaintiff’s complaint presented no “case” or “controversy” as to these defendants. Nevertheless, despite what the Court felt might be “over-reaching”, the Court agreed to grant the injunctive relief sought with certain understandings. Notably absent from the Court’s ruling is any mention that McCloskey’s motion to dismiss was denied or mooted by the Court’s actions. Thus, the Court finds that, despite the literal language of the written Order, it was the intent of all parties and the Court that the defendants be preliminarily enjoined from destroying or otherwise disposing of the election materials in question pending further consideration of the merits of the case and McCloskey’s motion to dismiss by the Court.

Secondly, the Court is of the belief that despite the characterization of the Court’s order enjoining defendants, it has the power to modify, vacate, or dissolve the injunction when circumstances warrant it, despite the fact that the original order was neither objected to nor appealed. Pasadena City Board of Education v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976); Lee v. Dallas County Board of Education, 578 F.2d 1177 (5th Cir.1978). Based upon the facts of the case sub judice, the Court is of the opinion that circumstances may warrant vacation of its earlier order if the motion to dismiss is meritorious. The Court will thus move to a consideration of McCloskey’s motion to dismiss.

McCloskey, in support of his motion to dismiss plaintiff’s complaint, points to several areas in which he perceives the complaint to be deficient. First is the jurisdictional allegations of the complaint. McIntyre alleges that this action is brought pursuant to the due process and equal protection provisions of Article I, § 7 and § 5 of the Constitution and in aid of the pursual of an action under the Federal Contested Elections Act, 2 U.S.C. § 381, et seq. Jurisdiction is thereby invoked pursuant to the provisions of 28 U.S.C. § 1331(a). McCloskey argues that such jurisdictional basis is defective for two reasons: (1) because there is no case or controversy between McIntyre and the named defendants, and (2) because this Court lacks jurisdiction to aid an FCEA action at this juncture.

It cannot be seriously disputed that under Article III of the Constitution, “the judicial power of federal courts' is constitutionally restricted to ‘cases’ or ‘controversies’.” Flast v. Cohen, 392 U.S. 83, 94, 88 S.Ct. 1942, 1949, 20 L.Ed.2d 947 (1968). And in order for there to be a “case” or “controversy” there must be a genuine dispute between the parties, not between one party and someone not before the Court. As the Supreme Court noted in Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 41-42, 96 S.Ct. 1917, 1925-26, 48 L.Ed.2d 450 (1976):

(T)he “case or controversy” limitation of Art. Ill still requires that a federal court act only to redress injury that fairly can be traced to the challenged actions of the defendant, and not injury that results from the independent action of some third party not before the court.

In the case sub judice, McIntyre alleges that certain members of the Task Force appointed by the Committee on House Administration have violated certain of his federal rights. However, there are no allegations that the named county clerk defendants have or have threatened to injure plaintiff in any manner. In fact, taken as a whole, the allegations as to the named defendants establish only that they are custodians of certain election materials who will (presumably), pursuant to Indiana statute, dispose of these materials at the expiration of six (6) months in the absence of a court order to the contrary. However, there is no allegation that the actions which these defendants might undertake are in any way illegal. See, Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). (party who invokes court’s authority must show that he has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant).

McIntyre does not dispute that the wrongs of which he complains were not caused by the actions of the defendants but argues that preservation of the election materials is essential to his (and others) efforts to correct the wrongs and injustices of the Task Force. While it may be true that preservation of the materials (and for that matter, opening of the ballots) may in some manner be beneficial to McIntyre in his pursuit of other litigation, the Court is not of the opinion that injury at the hands of others is sufficient by itself to establish a “ease” or “controversy” in the context of this suit, since none of those others are defendants in this case. Simon v. Eastern Kentucky Welfare Rights Organization, supra, at 41, 96 S.Ct. at 1925.

Nor is it clear that the wrongs of which McIntyre complains are likely to be redressed by the remedies which he seeks in this case. Enjoining the destruction or disposition of all election materials used in the November 6, 1984, general election will not redress the constitutional wrongs complained of. What it may do is preserve evidence that plaintiff might use in other cases, but the Court finds that it would be mere speculation at this juncture to say that McIntyre, or any other plaintiff; or for that matter, the House will require these materials for other cases. Indeed, McIntyre concedes in his brief in opposition to the motion that Congress itself decides what evidence, if any, it needs to conduct an investigation. (Brief in Opposition, pg. 3).

Equally speculative, in the Court’s opinion, is the proposition that the opening and counting of the thirty-two (32) absentee ballots will serve to redress any injury suffered by plaintiff. The House of Representatives has conclusively determined which ballots should or should not be counted. That they have the power to do so can’t be seriously questioned. McIntyre v. Fallahay, 766 F.2d 1078, 1081 (7th Cir.1985). (The House’s decisions about which ballots count____are not reviewable in any court.) Nor can it be disputed that the House is not required to follow state law in determining which ballots count. McIntyre v. Fallahay, supra, at 1086. Thus, it would appear unlikely that, the House having once determined not to count the ballots in question, opening of the thirty-two (32) ballots in question would assist plaintiff in redressing the wrongs complained of. Furthermore, this Court has serious reservations about the propriety of ordering these absentee ballots opened and counted. To do so would, in the Court’s opinion, potentially frustrate the House's ability under the FCEA to conduct its own investigation of these ballots, a power that is solely delegated to the House, and could improperly intimate how Congress ought to have decided. See, McIntyre v. Fallahay, 766 F.2d 1078 (7th Cir.1985). Finally, the opening and counting of these thirty-two (32) absentee ballots could thrust the Court into the position of having to decide which of the ballots should be counted in the event that other defects become apparent after opening. That is an area which is best left to the ultimate decision maker as to which ballots count, and that is the House of Representatives. Nor does it appear, based upon the Seventh Circuit’s decision in McIntyre v. Fallahay, supra, that plaintiff is precluded from seeking this relief in the pending state court recount actions.

McIntyre has also asserted in his complaint that this case is brought in aid to the pursual of an action under the provisions of the Federal Contested Elections Act (“FCEA”) 2 U.S.C. § 381, et seq. While at the time the complaint was filed no such action was pending, the Court is cognizant of the fact that McIntyre has now instituted an FCEA action. However, the mere fact that McIntyre has now instituted such an action, does not vest this Court with jurisdiction to entertain requests for relief which might aid plaintiff in the pursuit or maintenance of such an action.

Section 388 of Title 2 United States Code provides that state and federal courts may, upon application, issue and enforce subpoenas for deposition. However, that provision cannot be read in a vacuum, but rather must be considered in conjunction with the other provisions of the FCEA. Those provisions provide a contestant, such as McIntyre, limited discovery rights during a regulated time frame. See 2 U.S.C. § 386(c). Notably absent from the language of the Act is any statutory provision which indicates that a court may “aid” the pursual of an FCEA action in any other manner. In the present case, McIntyre does not seek this Court’s assistance pursuant to the provisions of the FCEA, but seeks to institute a separate proceeding altogether allegedly so that he may state grounds sufficient to change the outcome of the election in his contest petition. But he has already done that. Nothing these defendants have done, or may do in the future, has impinged upon his right to bring an FCEA action.

What is sought in this case is discovery; discovery that will, hopefully, keep this election dispute alive by providing a basis for other litigation. However, in the Court’s opinion, this suit is not the proper method of obtaining the requested relief nor are these defendants the proper party defendants from whom to seek relief for the alleged wrongs and injustices of certain members of Congress. This is not to say that plaintiff may not ever obtain discovery of what he is apparently most concerned with, i.e., how the thirty-two (32) absentee voters cast their ballots, for he is given discovery rights under the FCEA. But it would be improper for this Court to speculate on how the House will allow McIntyre to proceed with discovery in that action.

Accordingly, because the Court finds that this case presents no “case” or “controversy” as to these defendants, and since the Court further finds that the Court lacks jurisdiction at this time to aid plaintiff with discovery in his FCEA action, the Court finds that McCloskey’s motion to dismiss should be granted for the reason that the Court lacks subject matter jurisdiction.

In addition, the Court finds that the Order of May 17, 1985, enjoining defendants from disposing of or destroying any election materials, voting materials or ballots should be vacated and set aside. The circumstances which led this Court to determine that such injunction was necessary have changed. The materials no longer need be preserved so that McIntyre or other plaintiffs may institute the proceedings which counsel for plaintiff indicated, on May 17th, were going to be commenced. McIntyre has currently pending an FCEA action before the House Committee. If either McIntyre or the House require these materials, they may be subject to a protective order in that action. By order of this Court, dated this date, the Court has dismissed as nonjusticiable the other cause of action in which counsel for plaintiff has argued that the materials were necessary. Additionally, despite plaintiff’s counsel’s representations at the May 17, 1985, hearing, no amended injunctive order has been tendered to the Court limiting the types or quantities of materials that the clerks are to preserve. Thus, although what plaintiff apparently really wants are the thirty-two (32) unnotarized, uncounted absentee ballots as well as like ballots which were counted, the clerks are faced with the impoundment of virtually all election materials used in the November 6, 1984, general election. Therefore, as pointed out at the May 17 th hearing, each of the clerks is faced with the problem of fulfilling their responsibilities with regard to election materials (i.e., purging voter registration lists) when such materials are subject to an injunctive order.

Finally, the Court must look at this case from a practical point of view. Each of the defendant clerks have indicated a willingness to preserve whatever election materials plaintiff actually requires. Three and one-half (3V2) months ago plaintiff was to consult with the clerks as to what he really desired to preserve, but he has not yet done so, thus at this stage of the proceedings, the clerks are forced to keep everything impounded, thereby frustrating their ability to carry out their other duties involving these election materials. Furthermore, the Court presumes that, whatever the mandates of state law might be, the clerks will comply with Section 1974 of Title 42 United States Code which provides that Election Administrators are required to preserve election materials used in elections for federal offices for a period of twenty-two (22) months from the date of the election. Since this statute encompasses, among other things, voting registration records, poll lists, applications for absentee ballots, ballot envelopes, tally sheets, computer programs used to tabulate votes, as well as the ballots themselves, it would appear that the materials which plaintiff seeks to preserve are adequately protected even in the absence of an injunction prohibiting their destruction. See, Donsanto, Federal Law on Retention of Voting Documentation, FEC Journal 7, Summer 85.

Therefore, by reason of the foregoing, it is ORDERED, ADJUDGED AND DECREED that:

(1) This action be dismissed on the merits with each party to bear their own costs of the action;
(2) That the Court’s Order of May 17, 1985, enjoining the defendants from disposing or destroying any election materials, voting materials, or ballots used in connection with the November 6, 1984, election or any recount thereof be vacated and set aside; and
(3) That in light of the Court’s Order dismissing this action, the motions of Intervenor McCloskey and defendant A1 Inman to quash notice of depositions and subpoenas, as well as the motion of plaintiff McIntyre to amend the Court’s injunctive order are rendered moot.