author: JAMES LAWRENCE KING, Chief Judge.

text:
    ROLLS ROYCE (CANADA), LTD., Plaintiff, v. CAYMAN AIRWAYS, LTD., Defendant.
    No. 85-778-CIV-KING.
    United States District Court, S.D. Florida.
    July 23, 1985.
    As Corrected on Order of Clarification Due to Scrivener’s Error July 24, 1985.
    Alan J. Kluger, Miami, Fla., for plaintiff.
    Brook C. Miller, Miami, Fla., for defendant.
   ORDER GRANTING DEFENDANT’S MOTION TO DISMISS THIS CAUSE UNDER FORUM NON CONVENIENS

JAMES LAWRENCE KING, Chief Judge.

THIS CAUSE arises before the Court upon, inter alia, defendant’s, CAYMAN AIRWAYS, LTD., motion to dismiss or, in the alternative, motion to stay and plaintiff’s, ROLLS ROYCE (CANADA), LTD., in response thereto, and upon plaintiff’s petition for remand and defendant’s response thereto. In order to place the parties respective arguments in proper perspective, a brief discussion of the procedural history is in order.

The present controversy arises out of an alleged breach of contract in which plaintiff agreed to perform certain maintenance and repair services on certain aircraft engines owned and operated by the defendant; plaintiff alleges that services were rendered and that the defendant has refused to pay. In response to defendants alleged breach, the plaintiff first petitioned the Superior Court for the District of Montreal Province of Quebec, Canada, Case No. 500-05-15191-884, for writ of seizure before judgment.

It appears that the subject seizure before judgment is a special mode of execution whereby the plaintiff’s rights are protected by seizing the subject property and placing it in the custody of a judicial guardian pending the outcome of the subject dispute. Plaintiff asserts by way of affidavit that the two aircraft engines in its possession, which belonged to the defendant, have since been seized and are presently in the custody of a judicial guardian of the Superior Court for the District of Montreal. Subsequent to plaintiff’s action in Canada, it filed yet another action in the Circuit Court of the Eleventh Judicial Circuit, in and for Dade County, Florida, Case No. 85-7549, wherein it sought damages for breach of contract. Defendant subsequently removed the state proceedings to this forum pursuant to 28 U.S.C. §§ 1330(a) & 1441(d); plaintiff has since filed a petition for remand which this Court finds, at the outset, must be denied.

For removal to be proper under § 1330(a), this Court must find that the defendant is a foreign state pursuant to 28 U.S.C. § 1603 which includes, inter alia, that it not be a citizen of a state of the United States as defined under 28 U.S.C. § 1332(c). The thrust of plaintiff’s argument in opposition to defendant’s petition for removal is that the defendant is not a foreign state within the meaning of § 1603(a) since it has its principal place of business in Miami, Florida. Defendant, on the other hand, argues that it is a corporation formed and existing under the laws of the Cayman Islands, and that it does not come within the purview of § 1332(c).

Upon this Court’s review of the record in this cause, defendant’s petition for removal and plaintiff’s response thereto by way of petition for remand, the Court finds that it has jurisdiction pursuant to § 1330 (a) and, therefore, plaintiff’s petition for remand must be denied. However, upon this Court’s review of defendant’s motion to dismiss, the Court finds it dispositive of this cause.

Defendant asserts three grounds for dismissal in its motion to dismiss plaintiff’s complaint: (1) the Court lacks subject matter and personal jurisdiction under the Foreign Sovereign Immunities Act, 28 U.S.C. § 1602 et seq.; (2) the case should be dismissed on forum non conveniens grounds; and (3) the abstension doctrine warrants dismissal under the principle of comity since there is presently pending identical litigation in Montreal, Canada involving the same parties and the same subject matter. After reviewing the respective arguments, this Court is of the opinion that defendant’s motion to dismiss should be granted under grounds two and three. See, e.g., Brinco Mining Limited v. Federal Insurance Co., 552 F.Supp. 1233 (D.D.C.1982); and Sibaja v. Dow Chemical Company, 757 F.2d 1215 (11th Cir.1985), respectively.

The FSIA enables a foreign state to assert its sovereign immunity under § 1602 and thereby free itself from the jurisdiction of the United States courts, unless the foreign state’s commercial activities fall under the general exceptions enunciated under 28 U.S.C. § 1605. Upon this Courts review of the respective arguments advanced for and against defendant’s contention that this Court lacks subject matter and personal jurisdiction under the FSIA, the Court finds that it does have jurisdiction since the defendant’s commercial activities within the United States fall within the § 1605(a)(2) exception to its sovereign immunity. Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983); Texas Trading v. Federal Republic of Nigeria, 647 F.2d 300 (2d Cir.1981).

Next, defendant argues that dismissal is appropriate under forum non conveniens grounds since: (1) the subject contract was entered into in Canada; (2) under the provisions of the contract, “[t]he agreement, regardless of where executed, shall be governed, and construed in accordance with the laws of the Province of Quebec, Canada, Annex A, General Conditions, at 1.13 Interpretation, Defendant’s Supplement in Support of its Motion to Dismiss, Exhibit A; (3) this Court will thus be forced to interpret the civil law of Quebec, Canada, which substantially differs from the common law; (4) the subject repairs which were performed on the aircraft engines were performed in Canada with the bills accruing therefrom to be paid in Canada; (5) the repaired engines are likewise in Canada; (6) plaintiff resides in and is a citizen of Canada and defendant resides in and is a citizen of the Cayman Islands; and (7) plaintiff will not be prejudiced by this Court’s dismissal of the case since there remains pending the same litigation envolving the same parties and subject matter in Canada. However, plaintiff argues that the case at bar is properly before this Court since (1) the repair orders and work orders involving the subject contract to repair the aircraft engines came out of Miami, Florida; and (2) the witnesses are all within this Court’s jurisdiction or in the nearby Cayman Islands — e.g., the employees of the defendant who diagnosed the engines for repair, removed the engines for shipping, prepared the necessary shipping and customs documentation and executed the work and repair orders, are all within the jurisdiction of this Court.

Upon this Court’s review of the private and public-interest factors in relation to the arguments for and against dismissal under forum non conveniens grounds, as enunciated under Sibaja, supra, and after reviewing the respective arguments concerning abstention, Brinco Mining Limited, supra, and it appearing that the defendant has asserted that it will not contest the jurisdiction of the Canada forum if the subject motion to dismiss were granted, the Court finds that the interests of justice would best be served by dismissing the subject action without prejudice to plaintiff’s rights to proceed in the Superior Court of Canada.

Accordingly, for the aforementioned reasons and the Court otherwise being fully advised in the premises, it is

ORDERED and ADJUDGED that defendant’s motion to dismiss plaintiff’s complaint be, and it is hereby, GRANTED. Accordingly, this case is hereby DISMISSED without prejudice to plaintiff’s rights to further pursue the matter in Canada.


source: Caselaw Access Project

author: JOSEPH H. YOUNG, District Judge.

license: Public Domain

text:
    Robert M. TOBIN v. The GRAND UNION CO., INC., et al. Robert M. TOBIN v. The GRAND UNION CO., INC., et al.
    Civ. Nos. Y-85-1362, Y-85-1377.
    United States District Court, D. Maryland.
    July 29, 1985.

      E. Allen Shepherd, Upper Marlboro, Md., for plaintiff.
    Stanley Mazaroff, Baltimore, Md., William A. Ziegler, New York City, for defendants Grand Union Co., Inc. and Walter Louis Wisekal.
    Jeffrey Neil Young, Washington, D.C., and Richard Pearson, Baltimore, Md., for defendants Thomas Ray McNutt, Thomas Fennell, Sr., John Brown, and William H. Wynn.
   MEMORANDUM

JOSEPH H. YOUNG, District Judge.

This suit is an action under § 301 of the Labor-Management Relations Act of 1947, 29 U.S.C. § 185. Plaintiff, Robert M. To-bin, was an employee of the Grand Union Company from September 26, 1981 to March 6, 1982 and was a member of the United Food and Commercial Workers Union, Local 400, of Washington, D.C. (“union”). Plaintiff alleges that his former employer wrongfully discharged him in violation of the collective bargaining agreement between the union and the company, and that the union breached its duty of fair representation by failing to arbitrate plaintiff’s resulting grievance.

Defendants Thomas McNutt, Thomas Fennell, and John Brown, officers and agents of the local union, Grand Union Company and Walter Wisekal, its agent, and William Wynn, officer and agent of the international union, have filed motions for summary judgment claiming that plaintiff’s suit is time-barred. Because it is clear that plaintiff’s action was filed outside the applicable statute of limitations, defendants’ motions will be granted.

Plaintiff alleges that in February, 1982, he was transferred to a Grand Union store in Rockville, Maryland. When he questioned the company representative concerning the company’s right to transfer him, he was notified that his employment would be terminated. On March 2, 1982, plaintiff filed a grievance and request for arbitration hearing with the union and the company. The union did not pursue that grievance to arbitration. There is some dispute as to when plaintiff became aware he would not receive an arbitration hearing; at the latest, plaintiff was certain that the union had not pursued his claim in December, 1983. This suit was filed February 27, 1985.

Defendants assert that the six-month statute of limitations applied by the Supreme Court in DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983) is applicable in this case. It is. The Supreme Court in DelCostello held that the six-month statute of limitations applicable in actions under § 10(b) of the National Labor Relations Act was also applicable to an action against an employer and a union for breach of a labor contract and breach of the union’s duty of fair representation. Plaintiff has presented similar claims in this action.

Plaintiff has attempted to distinguish DelCostello on the ground that this case is a “straight-forward section 301 action” such as that presented in Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966), where the court applied the state statute of limitations for a breach of contract claim. Plaintiff argues that the most-analogous ’state law statute of limitations should apply in this action.

Unfortunately for the plaintiff’s argument, this case presents claims almost identical to those presented in DelCostello. In that case, the plaintiff alleged that the employer had breached a provision of the applicable collective bargaining agreement, and that the union had breached its duty of fair representation by mishandling the ensuing grievance and arbitration proceedings. The Supreme Court distinguished the claims in DelCostello from the type of claims presented in Hoosier Cardinal:

Unlike the present cases, Hoosier did not involve any agreement to submit disputes to arbitration, and the suit was brought by the union itself rather than by an individual employee.

462 U.S. at 162, 103 S.Ct. at 2289. The Court noted that Hoosier expressly reserved the question of whether to apply state law to a § 301 action where the analogy to state law was less direct, or where the policy considerations were different.

The claim in this case is a claim by the plaintiff that the company wrongfully terminated him and that the union failed to adequately represent him. As in DelCostello, there was a portion of the collective bargaining agreement which provided for the submission of disputes to arbitration, and the suit is brought by an individual employee against both his former employer and his former union. This case, like Del-Costello and unlike Hoosier, does involve “those consensual processes that federal labor law is chiefly designed to promote— the formation of the collective agreement and the private settlement of disputes under it,” Hoosier, 383 U.S. at 702, 86 S.Ct. at 1111, see DelCostello, 462 U.S. at 163, 103 S.Ct. at 2290. This case is precisely the sort of “hybrid § 301/fair representation litigation,” 462 U.S. at 165, 103 S.Ct. at 2291, which requires the imposition of the six-month statute of limitations established in DelCostello.

There is one difference between this case and DelCostello. There, plaintiffs were attacking an arbitration award where the union allegedly breached its duty of fair representation even though it had pursued plaintiffs grievances through arbitration. In this case, the union did not elect to invoke the arbitration procedure to deal with plaintiffs grievance. This difference does not change the result, however. The same policy considerations apply whether the union declines to process the grievance or whether it is pressed to arbitration. In Samuels v. American Transit Corp., 595 F.Supp. 840 (D.N.M.1984), plaintiff argued that her claim against her employer was a simple breach of contract action and thus subject to a state statute of limitations. In that case, like the instant case, the union had failed to request arbitration of her grievance. The court noted:

The collective bargaining agreement between plaintiffs union and employer provides grievance/arbitration procedures for an employee to contest her discharge. The plaintiff was denied reinstatement by a letter, from her employer, denying her grievance. Since no request for arbitration was made, this became a final decision under the collective bargaining agreement. Plaintiff may remove the bar of finality only through proof of a breach of the collective bargaining agreement by the employer and a breach by the union of its duty of fair representation.

595 F.Supp. at 843. The court concluded that plaintiff could not transform her action into a state law breach of contract action, also noting that “a collective bargaining agreement is much more than traditional common law employment contract terminable at will.” 595 F.Supp., at 843 n. 3.

Even in DelCostello, the Supreme Court recognized that in some “hybrid” litigation, “the union’s breach of duty may consist of a wrongful failure to pursue a grievance to arbitration, as in Vaca [v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967)] and Bowen [v. United States Postal Service, 459 U.S. 212, 103 S.Ct. 588, 74 L.Ed.2d 402 (1983)], or a refusal to pursue it even through preliminary stages.” 462 U.S. at 166 n. 16, 103 S.Ct. at 2291 n. 16. The Court impliedly held that the federal six-month statute of limitations period should apply to such cases. See 462 U.S. at 163, 103 S.Ct. at 2289. Thus, it is immaterial to a determination of the applicable statute of limitations that arbitration was not pursued in this case.

Plaintiff argues that his complaint included allegations of negligence, and that therefore the state statute of limitations applicable to negligence actions should apply here. Plaintiff cannot avoid the application of a federal statute of limitations by characterizing his claims as tort claims. The Supreme Court in Allis Chalmers Corp. v. Lueck, — U.S. -, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985), recently held that § 301 of the federal labor law was pre-emptive of labor-related state law tort claims. The court noted that:

questions relating to what the parties to a labor agreement agreed, and what legal consequences were intended to flow from breaches of that agreement, must be resolved by reference to uniform federal law, whether such questions arise in the context of a suit for breach of contract or in a suit alleging liability in tort. Any other result would elevate form over substance and allow parties to evade the requirements of § 301 by re-labeling their contract claims as claims for tortious breach of contract.

In this case, plaintiffs claims that the union and the company were “negligent” in failing to train their agents to adhere to the collective bargaining agreement is really no different than the claim that the union breached its duty of fair representation and the employer breached the terms of the collective bargaining agreement. The pre-emptive effect of § 301 therefore extends to these claims.

This case presents “hybrid” claims substantially similar to those presented in DelCostello v. Teamsters, supra. The Fourth Circuit in Murray v. Branch Motor Express Co., 723 F.2d 1146 (4th Cir.1983), held that DelCostello should be applied retroactively. Accordingly, the six-month statute of limitations applied in that case will be applied in this action.

There is some dispute as to when the plaintiff became aware that the union would not pursue his grievance. Plaintiff himself claims that he became aware of the union’s default in December, 1983. This suit was filed in the Circuit Court for Prince George’s County nearly 14 months later, in February, 1985. That filing was clearly outside of the six-month statute of limitations. Plaintiff’s suit is therefore time-barred and defendants’ motions for summary judgment will be granted.


author: MENCER, District Judge.

text:
    Peter T. FENSEL, Plaintiff, v. UNITED STATES of America, Defendant.
    Civ. A. No. 84-0148 Erie.
    United States District Court, W.D. Pennsylvania.
    Aug. 7, 1985.

      Stephen H. Hutzelman, Plate Shapira Hutzelman Berlin May Walsh & Brabender, Erie, Pa., for plaintiff.
    Charles A. Baer, U.S. Dept, of Justice, Washington, D.C., and Donald E. Lewis, Erie, Pa., for defendant.
   OPINION

MENCER, District Judge.

The plaintiff, Peter T. Fensel, brought suit seeking a refund of part of the federal income taxes paid by him for 1978 and 1979. This tax was paid on partnership income attributed to the plaintiff by a partnership doing business as “The Pub” in which he was allegedly a partner. The plaintiff contends that he received no income or anything of value from The Pub in those years because the partnership had been terminated by mutual agreement in 1977. The defendant, the United States of America, alleges, on the other hand, that the partnership was not terminated and that the plaintiff is, therefore, liable for taxes on his share of the partnership’s income in 1978 and 1979. The plaintiff further contends, however, that he never received a share of the partnership’s income, which leads him to ask this Court, in the alternative, to allow him theft losses for the amounts attributed to him if we find that the partnership was not terminated in 1977. The plaintiff also seeks attorneys fees.

Both sides have filed Motions for Summary Judgment. The plaintiff’s Motion is supported by his affidavit and exhibits while the defendant’s Motion relies primarily on the plaintiff’s deposition.

A court, when considering a motion for summary judgment, should only grant the motion “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). All inferences, doubts and issues of credibility are to be resolved against the moving party. E.E.O.C. v. Westinghouse Electric Corp., 725 F.2d 211, 216 (3d Cir.1983).

PARTNERSHIP TERMINATION

The plaintiff, in his Motion for Summary Judgment, asks this Court to find that the partnership in question was terminated in 1977 and to grant him a tax refund. The defendant requests that we find that the partnership was not terminated until 1980 and that the plaintiff is not entitled to any refund.

This Court is of the view that summary judgment is appropriate with regard to the partnership termination issue as there are no material facts left to be resolved. A partnership, to be viewed as terminated, must comply with the requirements of 26 U.S.C. § 708(b)(1), which states in the appropriate part that:

[A] partnership shall be considered as terminated only if—
(A) no part of any business, financial operation, or venture of the partnership continues to be carried on by any of its partners in a partnership, or
(B) within a 12-month period there is a sale or exchange of 50 percent or more of the total interest in partnership capital and profits.

If there is not compliance with either provision of subsection (b)(1), “an existing partnership shall be considered as continuing. ...” 26 U.S.C. § 708(a).

The plaintiff has attempted to convince this Court that the partnership in question here terminated in the fall of 1977 when he ceased his activities with The Pub, which left only his partner, Michael T. McGuire, involved with the business. This view is not in accord with those expressed by several courts. The court in Ginsburg v. United States, 396 F.2d 983, 988, 184 Ct.Cl. 444 (1968) indicated that the apparent intention of Congress in adding § 708 to subchapter K of the Internal Revenue Code of 1954 without a cross reference to the definition section (§ 761) was “that the issue of terminating an existing partnership [was] to be evaluated solely on the basis of Section 708 without regard to whether the ‘organization’ of individuals involved, if judged ab initio, would be considered a partnership under Section 761(a).” Based on this opinion, it would not matter that only one partner was left to continue carrying on the business of the partnership. As long as the business of the partnership is carried on by any partner, the partnership has not been terminated in accord with § 708(b)(1)(A).

In a case very similar to this one, another court held that “even though the partnership dissolved ... when petitioner withdrew and ceased to be associated with the carrying on of the partnership business, there continued to be a valid partnership until such time as the partnership actually terminated.” Fuchs v. Commissioner of Internal Revenue, 80 T.C. 506, 510 (1983). The plaintiff here also withdrew and ceased to be associated with the running of The Pub, the partnership business, but the partnership continued to exist until he sold his interest in 1980.

Because the partnership did not terminate until 1980, the plaintiff is ^ not entitled to a refund for the taxes paid for 1978 and 1979 on the share of the partnership’s income attributed to him.

THEFT LOSS DEDUCTION

This Court, having found that the plaintiff was a partner in a partnership in 1978 and 1979, must now consider whether he was entitled to take a theft loss deduction in those years for his allegedly unreceived share of the partnership’s income.

Section 165 of the Internal Revenue Code states that “any loss arising from theft shall be treated as sustained during the taxable year in which the taxpayer discovers such loss.” 26 U.S.C. § 165(e). “The IRS has construed this as meaning that a theft loss deduction can be taken only in the year of discovery.” Asphalt Industries, Inc. v. C.I.R., 411 F.2d 13, 15 (3d Cir.1969). The plaintiff bears the burden of establishing when he discovered his theft loss. Botwinik Brothers of Mass., Inc. v. Commissioner of Internal Revenue, 39 T.C. 988, 998 (1963).

The plaintiff, in his affidavit, attempts to convince this Court that he learned of the theft losses when he received copies of Form 1065 and/or Schedule K during 1978 and 1979 at the times these documents were dated. The plaintiff further states that he has no recollection of looking at these documents or of their contents if he did look at them when they were received. These statements by the plaintiff are all that he offers to satisfy his burden of proving when he discovered the theft losses.

The plaintiff has failed to convince this Court that he discovered the thefts in 1978 and 1979, respectively, or that there is even a genuine issue of material fact as to his discovery of the thefts in those years. Therefore, he is not entitled to deduct the theft losses in 1978 or 1979. As to the theft losses which may be deductible in subsequent years, the plaintiff must resort to an amended return for the year in which such losses were discovered.

ATTORNEYS FEES

The plaintiff also seeks attorneys fees under 26 U.S.C. § 7430(a). In view of the disposition reached here, we deem that the plaintiff is not entitled to such fees.

An appropriate order will be issued.

ORDER

AND NOW, this 7th day of August, 1985,

IT IS ORDERED that the Motion for Summary Judgment filed by the plaintiff, Peter T. Fensel, is DENIED.

IT IS FURTHER ORDERED that the Motion for Summary Judgment filed by the defendant, the United States of America, is GRANTED for the reasons stated in the accompanying Opinion, and judgment is entered in favor of the defendant, the United States of America, and against the plaintiff, Peter T. Fensel.


author: HORTON, District Judge.

text:
    Earl Edward GANDY, Petitioner, v. Pat W. KEOHANE, Warden, and U.S. Parole Commission, Respondents.
    No. 85-2511-H.
    United States District Court, W.D. Tennessee, W.D.
    Aug. 20, 1985.
    Earl Edward Gandy, pro se.
    W. Hickman Ewing, U.S. Atty., Reba Robinson, Asst. U.S. Atty., Memphis, Tenn., for respondents.
   ORDER GRANTING RESPONDENT’S MOTION TO DISMISS

HORTON, District Judge.

Mr. Gandy, the petitioner, is currently a prisoner at the Federal Correctional Institution, Memphis, Tennessee, where he is serving a 10-year sentence for counterfeiting. He has filed a petition for a writ of habeas corpus alleging that he has improperly been denied credit toward service of his sentence for time spent on parole.

Respondent has filed a motion to dismiss or for summary judgment arguing that Mr. Gandy has not exhausted his administrative remedies and that because he was convicted of crimes punishable by a term of imprisonment while on parole, he automatically forfeits time spent on parole.

After a careful and thorough review of the entire record before the Court, it is concluded that respondents’ motion to dismiss should be granted.

Background

In 1972, Mr. Gandy was sentenced to a 10-year term of imprisonment by the United States District Court for the Northern District of Alabama for the offense of sale, transportation and delivery of counterfeit United States obligations. He was released on parole on March 10, 1976, to an Alabama state detainer to serve a state sentence for an offense committed in 1970. At the time of his parole, he had 2,346 days remaining to be served.

The state conviction was subsequently reversed and Mr. Gandy was released from state custody on April 27, 1978. He made no attempt to contact federal parole officials upon his release claiming that he was under the impression that he was no longer on parole.

In 1979 Mr. Gandy pleaded guilty to four counts of attempted child molestation brought against him in the Circuit Court of St. Clair, Alabama. On March 11, 1980, a parole violator warrant was issued against Mr. Gandy and he was again taken into federal custody.

A parole revocation hearing was held on April 17,1980, and Mr. Gandy was found to have violated his parole conditions by failing to report for supervision and by his having been convicted of attempted child molestation. In a Notice of Action, dated April 18, 1980, the Parole Commission revoked his parole, gave him no credit for time spent on parole (March 10, 1978 to March 10, 1980), and stated that he would be eligible for reparole, after the service of 32 months, on December 12, 1982.

On December 12, 1982, Mr. Gandy was again granted parole; he had 1,340 days remaining to be served. Another revocation hearing was held on April 8, 1985, after the Commission had learned of Mr. Gandy’s March 28, 1984, conviction for assault in the third degree. In a Notice of Action dated May 3, 1985, the Commission revoked Mr. Gandy’s reparóle and again denied credit for time spent on parole. That decision was appealed to the National Appeals Board and according to the record before this Court, the matter is still pending.

A petition for a writ of habeas corpus was filed on May 28, 1985, in which Mr. Gandy alleges that the failure to credit time spent on parole violated the due process requirements of the United States Constitution. It is Mr. Gandy’s contention that the Bureau of Prisons and the Parole Commission no longer have jurisdiction over him in that, given proper credit for time served on parole, he has already served in excess of his original 10-year sentence.

Mr. Gandy’s argument is based upon the statutory and regulatory requirement that a parolee be given prior written notice of “the possible action which may be taken by the Commission.” He contends that he was not given notice that the Parole Commission intended to give no credit for time spent on parole, a fact which is not contradicted by the respondents or by the record.

Respondents have answered by motion in which it is argued that petitioner has not exhausted his administrative remedies and that the applicable statutory and regulatory provisions make the forfeiture of time spent on parole automatic when a conviction punishable by imprisonment is committed while on parole. It is further argued that case law relied upon by Mr. Gandy was, in the alternative, erroneously decided, not retroactive in effect, or factually distinguishable from the present case.

Conclusions of Law

Respondents’ first argument is that Mr. Gandy’s petition should be dismissed because he has not exhausted his administrative remedies in that his appeal to the National Parole Board is still pending. The Court does not agree. In McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969), a case cited by the respondents, the Supreme Court discussed the exhaustion of administrative remedies doctrine as applied in the criminal context. It was stated that the exhaustion rule should be applied only when the interests underlying the rule clearly outweigh the prejudice to the petitioner. Id. at 197, 89 S.Ct. at 1664.

No such compelling governmental interest appears evident in the present case. The issue before this Court involves the interpretation of statutory and regulatory guidelines in light of constitutional due process requirements; certainly not a matter generally committed to exclusive agency discretion. The application of the exhaustion rule would be particularly inappropriate in the present case given the fact that Mr. Gandy is asserting that the Bureau of Prisons and the Parole Commission no longer have jurisdiction over him because he has completely served his original sentence. For these reasons, the Court concludes that Mr. Gandy’s petition is not barred for failing to exhaust his administrative remedies.

Thus, the sole issue to be addressed is whether the Parole Commission violated Mr. Gandy’s due process rights by failing to provide him with advance notice that forfeiture of time spent on parole was a possible consequence of his parole revocation. The Court is of the opinion that it did not.

Respondents correctly argue that, under 18, U.S.C. § 4210 (1985), Mr. Gandy’s convictions of crimes punishable by a term of incarceration result in the automatic forfeiture of time spent on parole. See also 28 C.F.R. § 2.52(c)(2). “The plain language of § 4210 is that the measure of time remaining on the defendant’s sentence, after the defendant’s conviction of a second crime punishable by imprisonment, is the unexpired term remaining to be served by the defendant at the time defendant was paroled.” Harris v. Day, 649 F.2d 755, 759 (10th Cir.1981).

Mr. Gandy does not apparently dispute the Commissioner’s authority to refuse credit for time spent on parole. His argument is based upon the erroneous assumption that the Commission is required, for purposes of due process, to notify a parolee that forfeiture of time spent on parole is a possible consequence of revocation of parole. When the grounds for revocation consist of new criminal convictions punishable by incarceration, there is no such requirement. The Supreme Court, in Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1972) held that due process is satisfied if the parolee is afforded “written notice of the claimed violations of parole.” It is not disputed in the present case that Mr. Gandy received the required notices.

Mr. Gandy claims, relying on Vanes v. U.S. Parole Commission, 741 F.2d 1197 (9th Cir.1984), that the Commission must also notify parolees that revocation of parole may result in the forfeiture of time spent on parole. (18 C.F.R. § 244(e) is also cited as supporting Mr. Gandy’s contention.) Respondents urge that Vanes was incorrectly decided, was not intended to be retroactive and is distinguishable factually from the present case. Because the Court agrees with the latter view, no opinion is rendered on whether Vanes was correctly decided or intended to be retroactively applied. v

In Vanes the parolee was subjected to revocation of his parole and forfeiture of time spent on parole based upon a conviction, admitted by the parolee at the hearing, for Driving While Intoxicated. The original warrant did not apprise him of the fact that the conviction would be used as a basis for the Commission’s determination. The Court noted that the record did not indicate whether the DWI conviction was punishable by imprisonment, Vanes, 741 F.2d at 1200, n. 4.

The Court held that because the Commission had not complied with the applicable statutory and regulatory notice requirements regarding “possible consequences,” the parolee had been denied due process in that he was not afforded the opportunity to prepare a defense or mitigation. Id. at 1202.

In the present ease, Mr. Gandy suffered no prejudice similar to that suffered by the parolee in Vanes. He was properly notified that the new convictions would be considered by the Commission. Any defense or mitigation argument available to Mr. Gandy to prevent revocation of his parole was identical to that required to prevent forfeiture of time spent on parole. If the new conviction was punishable by a term of incarceration, that forfeiture is automatic if the new convictions result in parole revocation. Harris, 649 F.2d at 760; see also 18 U.S.C. § 4210(b)(2); 28 C.F.R. § 252(c)(2). Thus Mr. Gandy’s due process rights were not violated nor did he suffer any prejudice whatsoever.

Mr. Gandy has also offered, as support for his argument, the fact that the Commission is currently notifying suspected parole violators of the possibility that time spent on parole may be forfeited. However, this is not relevant to the determination of the minimum notification required by due process consideration. If the Commission chooses to go beyond, the requirements of due process for future warrants, that decision does not in any way affect the question of whether Mr. Gandy’s due process rights had been previously violated.

For these reasons, the Court concludes that the respondents are, as a matter, of law, entitled to an order granting the motion to dismiss for failure to state a claim upon which relief can be granted. It is so ORDERED this 20th day of August, 1985.

      . § 244(e) states in part: A summons or warrant issued pursuant to this section shall be accompanied by a statement of charges against the parolee, the applicable procedural rights under the Commission's regulations and the possible actions which may be taken by the commission.


author: SHADUR, District Judge.

text:
    Earleen SMITH, Plaintiff, v. Margaret HECKLER, Secretary of Health and Human Services, Defendant.
    No. 83 C 2593.
    United States District Court, N.D. Ill., E.D.
    Aug. 20, 1985.
    Patricia D. Kelly, Deborah Spector & Associates, Chicago, 111., for plaintiff.
    Asst. U.S. Atty. Robert T. Grueneberg, Chicago, 111., for defendant.
   MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Earleen Smith (“Smith”) has filed a long-delayed “Petition for Authorization To Charge and Receive Attorneys’ Fees”— though this Court’s memorandum opinion and order granting summary judgment in Smith’s favor (on the cross-motions for summary judgment customary in such social security cases) was issued January 17, 1984, the current petition was served on opposing counsel August 12, 1985 and tendered to this Court August 16. For the reasons stated and referred to in this memorandum opinion and order, Smith’s petition is denied.

This Court has just decided a like question in Cartledge v. Heckler, 615 F.Supp. 545 (N.D.Ill.1985), a copy of which opinion is attached. All the Cartledge discussion, save that relating to costs, is fully applicable here and need not be repeated. Only two additional points need brief discussion.

First, Smith’s counsel seeks to stress the “may” language in Section 206(b)(1):

Whenever a court renders a judgment favorable to a claimant under this sub-chapter who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation____

From that, counsel concludes the power to award fees in that manner is discretionary (an unexceptionable statement) and then leaps to an ingenious but impermissible conclusion (Mem. at 4):

This section does not state that the only time at which fees may be awarded is the time of the judgment.

That argument, however, ignores the final sentence of Section 206(b)(1), which wholly defeats any potential for extrastatutory fee awards:

In case of any such judgment, no other fee may be payable or certified for payment for such representation except as provided in this paragraph.

Second, Smith’s counsel — out of time under Rule 60(b)(1) because more than a year has elapsed since judgment was entered — seeks to invoke the provisions of Rule 60(b)(6): “any other reason justifying relief from the operation of the judgment.” Counsel argues correctly that Rule 60(b)(6) does not have the same one-year limitation.

But as 11 Wright & Miller, Federal Practice and Procedure: Civil § 2864 (1973) reflects, the case law teaches Rule 60(b)(6) and the preceding five subsections (Rule 60(b)(1) through (5)) are mutually exclusive. Thus “relief cannot be had under clause (6) if it would have been available under the earlier clauses” {id. at 217). And the case law also teaches as to Rule 60(b)(l)’s authorization of relief for “mistake, inadvertence, surprise, or excusable neglect” {id. § 2858, at 170 and cases cited):

Ignorance of the rules is not enough, nor is ignorance of the law.

Thus for this Court to consider granting relief to Smith’s counsel, it would effectively have to accept a kind of inversion of Rule 60(b), under which relief for a mistake of law (which the authorities teach is unavailable under Rule 60(b)(1)) would somehow become available under Rule 60(b)(6) because of the mutual exclusivity of those provisions. That would produce the bizarre result that a lawyer who had waited more than one year to ask for fees would be better off than a lawyer who had filed within a year — for the latter lawyer could not satisfy the Rule 60(b)(1) standard as a matter of law, and could not get relief under Rule 60(b)(6) because of his or her earlier filing.

In all events, the analysis in Cartledge as amplified by this memorandum opinion and order precludes relief for Smith’s counsel. Smith’s petition is denied.

      . All defined terms in Cartledge will be used in the same fashion in this memorandum opinion and order.

      . Counsel's Petition ¶ 3 states she was advised of the amount of Smith’s retroactive entitlement in a May 30, 1985 telephone conversation. Indeed the time records supporting the petition show one hour spent on that date in preparing the fee petition, one hour on June 5 conferring on the same subject, then nothing until July 22 through July 25, when 9.25 hours were spent in researching and drafting the petition and supporting memorandum. Thus the timing is quite comparable to that in Cartledge.


author: YERON, District Judge.

text:
    Danny Ray BALDWIN and Gloria J. Baldwin v. B.J. HUGHES, INC.
    Civ. A. No. 83-2495.
    United States District Court, W.D. Louisiana, Lake Charles Division.
    Aug. 20, 1985.
    Robert W.' Fenet and Terry Thibodeaux, Woodley, Barnett, Williams, Fenet & Palmer, Lake Charles, La., for plaintiffs.
    Joe A. Brame, Brame, Bergstedt & Brame, Michael J. McNulty, III, Plauche, Smith & Nieset, Lake Charles, La., for defendant.
   RULING ON DEFENDANT’S MOTION TO DISMISS

YERON, District Judge.

This matter comes before the Court upon the motion of defendant, B.J. Hughes, Inc., to dismiss the claim of plaintiff, Gloria J. Baldwin, on the ground that her action is barred pursuant to the one year period of prescription set forth in Louisiana Civil Code Article 3492. Before analyzing the legal merits of defendant’s motion, it is necessary to set forth the travel of the case to date.

On or about October 12, 1983, the plaintiff Danny Ray Baldwin brought an original complaint based upon diversity jurisdiction alleging that he was injured on January 16, 1983, while engaged in drilling work when tongs, manufactured by the defendant, B.J. Hughes, Inc., came unlatched and struck him in the back. The defendant answered the complaint and on June 26,1985, plaintiff moved to amend the complaint in order to have his wife, Gloria, added as a party plaintiff. The motion was granted and on June 28, 1985, plaintiffs filed their amended complaint adding counts for Gloria J. Baldwin’s “mental anguish and suffering, loss of services and loss of consortium” suffered as a result of the accident involving plaintiff, Danny Ray Baldwin.

On July 18, 1985, defendant filed the instant motion to dismiss pursuant to Fed. R.Civ.Pro. 12(b)(6) contending that because the husband’s injury occurred on January 16, 1983, and the wife’s claims for mental suffering and loss of consortium were not filed until more than two years after her husband’s alleged injury, her claim must be barred by the one year period of prescription for delictual actions set forth in Louisiana Civil Code Article 3492. The defendant incorrectly seems to presume, however, that the wife’s claims arose on the same day as her husband’s injury. The defendant fails to recognize that the wife’s claims for mental suffering and loss of consortium are entirely separate and distinct from her husband’s claim for physical injury.

In this diversity action, the Court is bound to apply Louisiana law. Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945). While Louisiana is a community property jurisdiction, damages for personal injury suffered by a married woman constitute her separate property and she is entitled to bring suit for them in her own right. Talley v. Employers Mut. Liab. Ins. Co., 181 So.2d 784 (La.App. 4th Cir.1965), writ refused 248 La. 785, 181 So.2d 783 (1965). Moreover, even though the husband’s claims for injuries suffered and the wife’s claims for mental suffering and loss of consortium arise from an alleged common tort, each is a separate and distinct cause of action. The claims arise at different times and each concerns damages for different losses and injuries. See Holmes v. Pottharst, 438 So.2d 622, 623 (La.App. 4th Cir.1983). The Husband’s action arises simultaneously with the commission of the tort. The wife’s damages for mental suffering and loss of consortium, however, do not arise until she actually suffers the loss, which may actually be at a time much later than when the husband’s cause of action accrued. Coates v. Owens-Corning Fiberglass Corp., 444 So.2d 788 (La.App. 4th Cir.1984); Lucas v. Commercial Ins. Co., 198 So.2d 560 (La. App. 1st Cir.1967); see also Miller v. Lykes Brothers Steamship Co., Inc., 467 F.2d 464, 467 (5th Cir.1972).

In Coates, the Louisiana appellate court held that the plaintiffs’ cause of action arose when they suffered the actual loss of consortium, society and service.

Until an injured party’s condition deteriorates to such an extent that his family is actually deprived of his consortium, service or society, they have suffered no injury. A plaintiff can be injured, or even disabled, without that injury causing the damages contemplated by Act 202 [wherein the Louisiana Legislature created the cause of action for consortium, effective September 10, 1982]. It seems beyond question that the right of beneficiaries under Art. 2315 to recover for their loss of consortium, service and society, cannot arise until that loss occurs. Until then any claim for damages would be speculative and premature. Coates, supra at 790.

In the case at bar, the plaintiffs’ amended complaint provides no clue as to when plaintiff, Gloria J. Baldwin, first allegedly sustained mental suffering and loss of consortium. The rule is well established that while a statute of limitations defense may be raised in a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), such a motion is not to be granted unless it is made to appear beyond doubt that the plaintiff can prove no set of facts in support of her claim which might entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Abdul-Alim Amin v. Universal Life Ins. Co. of Memphis, Tennessee, 706 F.2d 638, 640 (5th Cir.1983); Mann v. Adams Realty Co., 556 F.2d 288, 293 (5th Cir.1977). In considering the Rule 12(b)(6) Motion, this Court “must accept as true all well pleaded facts in the complaint, and the complaint is to be liberally construed in favor of the plaintiff.” Abdul-Alim Amin, supra at 640; Kaiser-Aluminum Chemical Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir.1982).

Because there is absolutely no evidence before this Court as to when the plaintiff, Gloria J. Baldwin, first allegedly sustained damages, this Court is unable to hold as a matter of law that her claims are barred by the one year prescription set forth in Louisiana Civil Code Article 3492. Consequently, defendant’s motion to dismiss the complaint of plaintiff, Gloria J. Baldwin, is DENIED.

      . "Delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained.” La.Civ.Code Art. 3492.

      . In the Holmes case, the Louisiana Fourth Circuit Court of Appeal held that a wrongful death claim was barred by the 1976 amendment to the workman’s compensation law forbidding tort suits against executive officers. The death occurred after the effective date of the 1976 amendment even though the injury which caused the death occurred before the amendment had been passed. In addressing the issue of when a cause of action for wrongful death arose, the Court stated: "... the action cannot arise until the victim dies and [it] is intended to compensate the beneficiaries for damages they suffer from the moment of death and thereafter.” In Holmes and other Louisiana cases, it has been consistently held that a survival action and a wrongful death claim are separate and distinct causes of action despite the fact that they arise from a common tort. Id. at 623.

      . When the damage is not immediately discoverable, prescription begins when a "reasonable person” should be aware of both the tort and the damages suffered. Guidry v. Theriot, 377 So.2d 319 (La.1979).

      . Wherein the Court held that a cause of action arises when negligent or tortious conduct causes injury. Lucas, supra at 564.

      . The amended complaint reads in pertinent part: "12. Because of the injuries received [by plaintiff, Danny Ray Baldwin], plaintiff, Gloria J. Baldwin, has sustained mental anguish and suffering, loss of services and loss of consortium.”

      . This Court notes with interest the decision of the Fourth Circuit Court of Appeal for the State of Louisiana in the case of Hidalgo v. Frenchman's Wharf Apartments, 464 So.2d 981 (La. App. 4th Cir.1985), wherein that Court affirmed the granting of summary judgment in favor of the defendant on the ground that the plaintiff nowhere alleged that her loss of consortium occurred after the effective date of the amended La.Civil Code Article 2315, which created the new cause of action for loss of consortium, etc. While plaintiff argued on appeal that a question of fact existed as to when the plaintiffs loss of consortium actually was manifested, she had failed in the court below to raise any such question of fact. The issue to be determined by this Court on defendant’s motion to dismiss pursuant to Fed.R.Civ.Pro. 12(b)(6) however, is simply to determine whether the plaintiff's amended complaint is legally sufficient on its face. 2A Moore, Federal Practice ¶ 12.08, at p. 2266; Abdul-Alim Amin, supra. As no factual evidence was presented to the Court at the time of oral argument to show that the plaintiffs wife’s cause of action accrued more than one year prior to her bringing of the amended complaint (whereupon this Court could have treated defendant’s motion as one for summary judgment pursuant to Fed.R.Civ.Pro. 56; see Fed.R. Civ.Pro. 12(b)(6)), this Court must limit its inquiry to the contents of the amended complaint, which it finds to be clearly sufficient on its face to state a cause of action upon which relief can be granted under Louisiana law.

      . Should the defendant determine through the course of discovery that the wife's alleged damages were sustained more than one year prior to the bringing of the amended complaint, however, the holding of this Court shall not prejudice defendant's right to move for summary judgment.


author: CAHILL, District Judge.

text:
    Donald P. BARFIELD, Plaintiff, v. ANHEUSER-BUSCH, INC., and Mike Parsons, Defendants.
    No. 84-1494-C(4).
    United States District Court, E.D. Missouri E.D.
    Aug. 21, 1985.
    Robert G. Raleigh, St. Louis, Mo., for plaintiff.

      Charles A. Seigel, Stolar, Heitzmann, Eder, & Harris, St. Louis, Mo., for defendants.
   MEMORANDUM AND ORDER

CAHILL, District Judge.

This matter comes before the Court on defendants’ joint motion for summary judgment.

In support of their motion, defendants assert that plaintiff has failed to file his complaint within the applicable statute of limitations period. Upon reviewing plaintiff’s deposition and the memoranda of law presented by both parties, it does appear that plaintiff’s cause of action is in fact time barred. The applicable statute of limitations period in this case is five years. See Allen v. Amalgamated Transit Union, Local 788, 554 F.2d 876 (8th Cir.1977), cert. denied, 434 U.S. 891, 98 S.Ct. 266, 54 L.Ed.2d 176 (1978). Plaintiff has alleged that his employment was terminated by the defendant on December 10, 1979. Plaintiff filed his present cause of action on August 13, 1984. At first blush it would appear that plaintiff’s cause of action is timely filed. But a close examination of the documents presented to this Court appears to indicate that plaintiff’s date of termination was actually in April and not December. The altercation which prompted the defendant to fire plaintiff occurred in March of 1979. On two separate occasions in April, plaintiff requested that he be reinstated to his former position, but both requests were rejected by defendant. Shortly thereafter, plaintiff initiated arbitration proceedings, and was subsequently denied reinstatement by the arbitrator. The arbitrator’s decision was rendered in December of 1979. It would appear that plaintiff is attempting to argue that he did not become aware of the fact that he was terminated until the arbitrator reached his final decision. This Court is of the opinion, however, that plaintiff was well aware of the fact that his employment was terminated in April. The evidence presented does not indicate that plaintiff was placed on suspension. Rather, the evidence clearly indicates that plaintiff was fired. The five year statute of limitations period began to run from April of 1979. The limitation period was not tolled simply because plaintiff submitted his dispute to an arbitrator; see Delaware State College v. Ricks, 449 U.S. 250, 261, 101 S.Ct. 498, 505, 66 L.Ed.2d 431 (1980); Electrical Workers v. Robbin & Myers, Inc., 429 U.S. 229, 237, 97 S.Ct. 441, 447, 50 L.Ed.2d 427 (1976), and in any event, plaintiff had ample time in which to file his complaint with this Court. The fact that he failed to do so in a timely manner warrants the granting of summary judgment with respect to plaintiff’s entire cause of action. Accordingly

IT IS HEREBY ORDERED that the defendants’ joint motion for summary judgment is GRANTED.


text:
    Warren HEATH v. SUPERIOR OIL COMPANY, et al.
    Civ. A. No. 83-3139.
    United States District Court, W.D. Louisiana, Lake Charles Division.
    Aug. 22, 1985.

      Lucius A. Hornsby, Jr., Hornsby & Landry, Lafayette, La., for plaintiff.
    Dan LeFort, New Orleans, La., and Matthew J. Hill, Jr., Andrew J. Gates, III, Dotson, Babcock & Scofield, Lafayette, La., for defendants Superior Oil Co.
    Cliffe E. Laborde, Laborde & Lafargue, Lafayette, La., for Wire-Tech Services, Inc. and North-West Ins. Co.
   RULING

YERON, District Judge.

This matter comes before the Court on cross-motions for summary judgment concerning the cross-claim of Superior Oil Company against Wire-Tech Services, Inc. for contractual and tort indemnity. Superi- or seeks summary judgment in its favor on its cross claim, for contractual indemnity and Wire-Tech seeks summary judgment in its favor dismissing Superior’s claims for both tort and contractual indemnity. The plaintiff initially sought recovery from Superior and Wire-Tech under the Jones Act. It is now well-established on the record, however, that Heath was injured while assigned to and engaged in his employment on a fixed offshore platform located on the Outer Continental Shelf off the coast of Louisiana. The Court has therefore dismissed the Jones Act claims, giving the plaintiff leave to amend his complaint to more fully state claims under general maritime and Outer Continental Shelf law.

Superior seeks contractual defense and indemnity pursuant to a work order which incorporates the terms of an earlier master service agreement, which provides for indemnification of Superior against, inter alia, its own sole or concurrent negligence. Wire-Tech opposes Superior’s claim for contractual defense and indemnity on the ground that the claim is barred by the Louisiana Oilfield Anti-Indemnity Act, La.R.S. 9:2780. Most of Superior’s challenges to full application of section 2780 in this case can be disposed of quickly as a preliminary matter. Superior first contends that the Act is inapplicable on the Shelf because it is inconsistent with the federal common law rule enunciated in United States v. Seckinger, 397 U.S. 203, 90 S.Ct. 880, 25 L.Ed.2d 224 (1970). This Court has rejected similar arguments in Moser v. Aminoil U.S.A., Inc., 618 F.Supp. 774, 776-77 (W.D.La.1985), and Hebert v. Kerr-McGee Corporation, 618 F.Supp. 767, 771-72 (W.D.La.1985). Superior’s contention that maritime law will govern the indemnity claim if Heath suffered a maritime injury is unfounded as a matter of law. Maritime law applies to a contractual indemnity claim only if the indemnity obligation is contained within a maritime contract or arises out of the performance of a separable maritime obligation in a mixed contract. Hale v. Co-Mar Offshore Corp., 588 F.Supp. 1212, 1214-15 (W.D.La.1984); Home Insurance Company v. Garber Industries, Inc., 588 F.Supp. 1218, 1220-21 (W.D.La.1984). Superior can demonstrate neither ground for the application of maritime law in this case because only nonmaritime services are involved here. Cf. Laredo Offshore Constructors, Inc. v. Hunt Oil Co., 754 F.2d 1223, 1231-32 (5th Cir. 1985) (although the offshore platform construction contract may have incorporated maritime obligations, maritime law did not apply to the claims before the court because they arose out of the alleged breach of nonmaritime obligations under the contract). Superior also contends that, if section 2780 does apply here, that it does not mandate complete dismissal of Superior’s claim for contractual defense and indemnity. As the plaintiff’s precipitating pleadings allege concurrent negligence on the part of Superior and Wire-Tech, and as the Act does not permit defense and indemnity upon such facts, the claim for contractual defense and indemnity must fall in to to if section 2780 is applicable. Moser, 618 F.Supp. at 780-81.

The only issue remaining before the Court is whether section 2780 is inapplicable on the Outer Continental Shelf on the ground that it is inconsistent with section 5 of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 905. Under the Outer Continental Shelf Lands Act, the laws of the adjacent state are applicable on the Shelf “[t]o the extent that they are applicable and not inconsistent with [OCSLA] or with other Federal laws and regulations of the Secretary [of the Interior].” 43 U.S.C. § 1333(a)(2)(A). Superior first contends that section 2780 is inapplicable on the Shelf because it is inconsistent with the 1984 amendment to section 5 of LHWCA, 33 U.S.C. § 905. Section 5 of the Longshore and Harbor Workers’ Compensation Act Amendments of 1984 amends section 5 of the Act to add a new subsection (c), which reads as follows:

In the event that the negligence of a vessel causes injury to a person entitled to receive benefits under this chapter by virtue of section 1333 of Title 43, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel in accordance with the provisions of subsection (b) of this section. Nothing contained in subsection (b) of this section shall preclude the enforcement according to its terms of any reciprocal indemnity provision whereby the employer of a person entitled to receive benefits under this chapter by virtue of section 1333 of Title 43 and the vessel agree to defend and indemnify the other for cost of defense and loss or liability for damages arising out of or resulting from death or bodily injury to their employees.

33 U.S.C. § 905(c).

Any inconsistency between section 2780 and this provision is of no avail to Superior. Under section 28(c) of the amending act, the amendment contained in section 5 of the 1984 act applies only “with respect to any injury after the date of enactment of this Act.” Heath alleges that his injury occurred on December 15, 1982, which is well before the effective date of the 1984 amendments, September 28, 1984. Section 905(c) does not apply retroactively and it is therefore without effect in this case. In any event, to the extent that Heath seeks recovery from Superior as the owner and operator of a vessel, section 905(c) would be inapplicable here because Wire-Tech’s indemnity agreement with Superior is not a reciprocal one.

Superior also urges that section 2780 is inconsistent with the LHWCA because section 905(a) does not bar indemnity agreements between LHWCA employers and platform operators. Cf. Olsen v. Shell Oil Co., 595 F.2d 1099, 1103 (5th Cir.1979) (section 905 does not bar an employer’s agreement to indemnify the platform owner for injuries arising from the employer’s negligence). Yet the mere fact that the LHWCA does not prohibit indemnity agreements in general does not necessitate the conclusion that section 905(a) precludes resort under the Lands Act to adjacent state laws prohibiting certain types of indemnity agreements. Congress has not yet spoken in the LHWCA to the specific question of whether platform owners should be permitted to contract with employers for indemnity against the platform owners negligence. With the current statutory backdrop, what would be needed in this regard would be an express authorization of such agreements with the intent to displace contrary state law rules. Cf. H.R.Conf.Rep. No. 98-1027, 98th Cong., 2d Sess. 23 (1984), U.S.Code Cong. & Admin.News 1984, pp. 2734, 2773, (“The [Senate] bill [which was not adopted] would legalize ... indemnity agreements [proscribed by § 905(b)] insofar as they apply to the Outer Continental Shelf and would further preempt the application of state laws prohibiting such indemnity agreements.”) In the absence of such legislative action, section 2780 is not inconsistent with federal law under the LHWCA insofar as the state act prohibits the agreement of an employer to indemnify a platform owner against the consequences of the platform owner’s negligence. Accord Rigby v. Tenneco Oil Co., 607 F.Supp. 1247 (E.D.La.1985).

For the foregoing reasons, the Court concludes that Superior’s claim for contractual defense and indemnity from Wire-Tech is barred by section 2780. Genuine issues of material fact remain, however, as to Superior’s claim for tort indemnity. Accordingly, the motion by Superior Oil Company for summary judgment in its favor on its cross-claim for contractual defense and indemnity from Wire-Tech Services, Inc. is DENIED, and the motion of Wire-Tech Services, Inc. for summary judgment in its favor dismissing the cross-claim of Superior Oil Company is GRANTED IN PART, such that it is entitled to dismissal of the claims for contractual defense and indemnity, and is DENIED in all other respects.


author: LAFFITTE, District Judge.

text:
    Elena PEREZ, Plaintiff, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.
    Civ. No. 84-1409 HL.
    United States District Court, D. Puerto Rico.
    Aug. 26, 1985.
    Paul Ramos Morales, Bayamón, Puerto Rico, for plaintiff.
    Fidel A. Sevillano-Del Rio, Asst. U.S. Atty., Hato Rey, Puerto Rico, for defendant.
   OPINION AND ORDER

LAFFITTE, District Judge.

This is an action brought under Section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g) (the Act), to obtain judicial review of the final decision of the Secretary of Health and Human Services (the Secretary) denying plaintiffs widow insurance benefits based on the account of her deceased husband.

Plaintiff is a 60 year old woman (born on August 13, 1924), with a third grade education, who has always worked as a housewife.

On March 7, 1979, plaintiff applied for widow’s insurance benefits (Tr. 36-41), alleging disability since 1954 due to bronchial asthma. The claim was denied initially and upon reconsideration on May 4,1979 and July 30, 1979, respectively. A timely request for hearing was dismissed by an Administrative Law Judge (AU) on April 7, 1980, on the basis of abandonment. The dismissal was upheld by the Appeals Council on August 11, 1980.

The current application was filed on July 15, 1982, alleging disability since February, 1979, due to bronchial asthma and a nervous condition. The application was denied initially and on reconsideration by the Office of Disability Operations of the Social Security Administration, after the Puerto Rican Agency, upon evaluation of the evidence by a physician and a disability examiner, had found that plaintiff was not under a disability (Tr. 46-50). The AU considered that a hearing was not necessary and that based upon the record plaintiff was entitled to widow’s insurance benefits (Tr. 27-28). The Appeals Council, on its own motion to review, reversed the decision of the AU on April 6, 1984, and found that plaintiff was not entitled to disability insurance benefits. This became the final decision of the Secretary. From this decision plaintiff appealed to this Court.

Upon review, we must ascertain only whether the Secretary’s decision is supported by substantial evidence. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Universal Camera v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951).

We have reviewed the record and found that the Secretary’s decision is not supported by substantial evidence.

Regarding plaintiff’s respiratory problems, the progress notes from the Bayamón Regional Hospital revealed that the plaintiff received treatment for bronchial asthma since 1979 (Tr. 151). On January 20, 1981, plaintiff was hospitalized in moderate respiratory distress, but on January 23, 1981, plaintiff left the hospital against medical advice.

On August 19, 1982 (Tr. 205-206), a consultative pulmonary evaluation was performed by Dr. Iván León, an Internist. Dr. León diagnosed a chronic bronchitis. However, a spirometric test could not be performed “due to plaintiff’s disturbed mental condition.” (Tr. 206.) A chest X-ray film revealed a blunted left cardio-pulmonary angle with left pleural thickening, but the radiologist stated that was not necessarily acute (Tr. 207).

Another report from the physician, Dr. José Luis Pesante, showed that plaintiff was seen on a monthly basis since 1977 due to asthmatic attacks with short remissions (Tr. 208).

A pulmonary function study done on September 30, 1982, revealed an FEV 1 (Forced Expiratory Volume in 1 second) of .96 before bronchodilators and 1.26 post bronchodilators.

The pneumologist commented that the MW (Maximum Voluntary Volume) readings “were unreliable due to patient’s poor efforts.” (Tr. 218.) After these findings, a physician designated by the Secretary, Dr. Daniel A. Nieves, concluded that plaintiff’s impairment did not meet or equal the level of severity described in the Listing of Impairments in Appendix 1 to Subpart P of Regulations No. 4 (Tr. 145).

Concerning plaintiffs nervous condition, on February 9, 1981, the plaintiff was seen at the mental health clinic for complaints of weight loss, insomnia, loss of appetite and ideas of persecution (Tr. 189). She went again in June, 1981, with complaints of auditory hallucinations and ideas of persecution (Tr. 186). In October, 1981, plaintiff was finally hospitalized (Tr. 195).

A consultative psychiatric evaluation was performed on August 20, 1982, by Dr. Ramón Piñero Rivera. Plaintiffs final diagnosis consisted of: Major Depression, Bronchial Asthma, chronic, and the physician commented that plaintiff needed supervision to handle her own funds (Tr. 214-216).

A second psychiatric evaluation was performed on March 7, 1983, by Dr. José Ríos Cervantes. It revealed that plaintiff was totally disabled due to her mental impairment which was diagnosed as Major Depression recurrent type, with psychotic features and borderline personality disorder plus bronchial asthma. In addition, plaintiff seemed of a paranoid and anxious character, she could not handle her own funds, and had lost interest in all things (Tr. 231-233). However, Dr. Roque Stella, a physician designated by the Secretary, who did not examine the plaintiff, rendered a medical judgment showing that plaintiff’s impairment was severe but did not meet or equal the Listings in Appendix 1 of Regulations No. 4 (Tr. 238-243).

Even more, several notices of accusations were filed in the District Court of Dorado, accusing plaintiff of verbal abuse, indecent exposure and threatening the neighbor’s life with a “machete” (Tr. 246-256). Furthermore, on September 21, 1981, the District Court of Toa Baja issued an official petition declaring plaintiff as being both a hazard to herself and to the community (Tr. 245-246).

With this evidence on the record, we cannot sustain the Secretary’s decision that plaintiff does not have a mental impairment which significantly limits the ability to engage in any gainful activity.

While the claimant’s respiratory impairment does not meet or equal the requirements of Appendix 1, Subpart P of Regulations No. 4, her mental impairment does meet the level of severity contemplated in the above Listing as mandated in Section 404.1578(a)(1) and (2). The medical evidence revealed a marked restriction of daily activities, a constriction of interests, a seriously impaired ability to relate to others and a major depression. Therefore, plaintiff’s mental impairment did meet Listing 12:03 (A) and (B) since February 1,1979 through November 30, 1983, therefore rendering her as “disabled under the Act.

The final determination of the Secretary that plaintiff was not disabled and was not entitled to disabled widow’s benefits is not supported by substantial evidence.

WHEREFORE, the Secretary’s decision is hereby REVERSED, and a finding that plaintiff is entitled to disabled widow’s benefits is hereby entered in accordance with the decision of the AU.

The Clerk shall enter judgment accordingly.

IT IS SO ORDERED.


author: J. THOMAS GREENE, District Judge.

text:
    John F. PRICKETT, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    No. C84-184G.
    United States District Court, D. Utah, C.D.
    Aug. 30, 1985.

      Chris D. Nichols, Salt Lake City, Utah, for plaintiff.
    Gregory C. Diamond, U.S. Atty’s Office, Salt Lake City, Utah, for defendant.
   MEMORANDUM DECISION AND ORDER REJECTING REPORT AND RECOMMENDATION OF U.S. MAGISTRATE AND REMANDING CASE TO SECRETARY FOR FURTHER PROCEEDINGS

J. THOMAS GREENE, District Judge.

This matter came on regularly for hearing on August 20, 1985, on Objections to Magistrate’s Report and Recommendation. The Objections were filed on behalf of the Claimant John F. Prickett. Chris D. Nichols appeared on behalf of the claimant, and Gregory C. Diamond, Assistant U.S. Attorney for the District of Utah, appeared on behalf of the defendant Margaret M. Heckler, Secretary of Health and Human Services. Counsel for the claimant filed a memorandum of law with the court, and both parties presented extensive oral argument, after which the matter was submitted for decision by the Court and taken under advisement.

The Court independently has reviewed the entire file, documents and record in this case, including the Report and Recommendation of the United States Magistrate dated May 28, 1985, and the Decision of the Administrative Law Judge dated "September 15, 1983. Based upon a consideration of the entire record and all matters contained therein, and the Court being fully advised, the Objections to Magistrate’s Report and Recommendation are herewith granted, and the decision of the Secretary is remanded for further proceedings as directed in this opinion. The Court finds no substantial evidence to support the Administrative Law Judge’s finding of no severe impairment as that term is construed by the Court.

BACKGROUND FACTS

The Claimant was previously awarded disability benefits from September of 1976 to May of 1979. The benefits were terminated and the termination was affirmed by the Secretary’s Appeals Council in November of 1980. The Claimant did not seek judicial review of the termination. (R. 188-94, 196) The initial disability was based on a finding of cervical strain, acute post cervical headaches, paresthisia of the upper extremities and hearing problems. A continuing disability evaluation determined that the disability ceased in March of 1979 due to medical improvement. (R. 190) The Claimant re-applied for benefits in July of 1982, alleging disability beginning in March of 1982 due to conditions consisting essentially of those under which he was originally found to be disabled, including back and neck injuries and the accompanying pain. The Claimant’s second application was denied initially and upon reconsideration. Claiming that he met the insured status requirements of the Social Security Act, the Claimant requested and received an administrative hearing. The Administrative Law Judge (AU) determined that Claimant could not meet his burden of establishing a prima facie case of disability because he could not satisfy step two of the Health and Human Services Regulations, a showing of “severe” impairment as defined by the Regulations. See 20 C.F.R. § 404.1520(c) (1984). The Secretary adopted the AU’s decision as final and the Claimant sought judicial review under 42 U.S.C. § 405(g) (1982).

The United States Magistrate carefully reviewed the record, the pleadings on file and the applicable law to resolve the two issues presented: (1) whether the Secretary’s decision was made in accordance with the proper legal standards; and (2) whether the Secretary’s decision was supported by substantial evidence. Under the first issue, the Magistrate found that the AU had applied an incorrect legal standard to the Claimant’s subjective complaints of pain by disregarding the complaints because they were “not found to be borne out by the objective medical evidence.” (R. 31, finding 4) Under the second issue, the Magistrate found that the Secretary’s decision was supported by substantial evidence in that the Claimant had failed to present sufficient evidence that he was unable to perform basic work activities since the onset of the claimed disability in March of 1982. The Magistrate ruled that even if the AU had taken into account the Claimant’s complaints of pain, there still was substantial evidence in the record to support the finding of no severe impairment. The Magistrate adopted the AU’s decision and found that there was substantial evidence in the record to support the finding of no severe impairment. Claimant objected to the Magistrate’s Report and Recommendation.

CRITERIA FOR SEVERE IMPAIRMENT AND SUBSTANTIAL EVIDENCE RELATING THERETO

In the case of Royce v. Department of Health and Human Services, 615 F.Supp. 1211 No. C84-871G, filed August 16, 1985, this Court set forth the criteria for determining disability under the Social Security Act pursuant to the Secretary’s regulations, and noted the five step sequential evaluation for determining disability under the Act as promulgated by the Secretary and followed by the Tenth Circuit. Ibid, at 1213-1214 [citing Turner v. Heckler, 754 F.2d 326, 328 (10th Cir.1985).] The standards for determining the severity of an impairment under step two of the sequential evaluation were discussed, and this Court adopted the Report & Recommendation of the Magistrate which gave a narrow construction to the definition of severity. In following the Regulations of the Department of Health and Human Services, this Court stated that a severe impairment is one that significantly limits one’s ability to perform the basic work activities exemplified in 20 C.F.R. § 404.1521(b) (1984). Although vocational factors are not to be considered at step two of the evaluation, a showing of meaningful impairment of one’s ability to perform basic work-related activities would be sufficient to satisfy the severity test.

The Eleventh Circuit has adopted a similar view of the severity requirement, ruling that:

... an impairment can be considered as not severe only if it is a slight abnormality [having] such minimal effect on the individual that it would not be expected to interfere with the individual’s ability to work, irrespective of age, education or work experience. Brady v. Heckler, 724 F.2d 914, 920 (11th Cir.1984).

The Fifth Circuit has adopted a similar narrow construction of “severe impairment,” and has noted that the original definition in 1968 was also narrow in scope and has never been abrogated. That Court concluded that current regulations must be read in light of the 1968 definition. Jason v. Heckler, 767 F.2d 82 (1985) [citing Estran v. Heckler, 745 F.2d 340 (5th Cir. 1984)]. The 1968 Regulation describes a non-severe impairment as “a slight neurosis, slight impairment of sight or hearing, or other slight abnormality or combination of abnormality.” 20 C.F.R. § 404.1502(a) (1968). This Court agrees that the current regulations are meant to clarify rather than to change the original narrow definition of severe impairment, and accordingly we adopted the standard as set forth in Royce which we reiterate here.

Claimant’s chief objection to the AU’s decision was that the AU erred in disregarding the medical evidence of his pain and required him to substantiate fully his claims of pain with objective medical evidence. The Magistrate took note of the Secretary’s requirement that pain could be utilized as a basis for finding disability only if a specific physical impairment exists to which the pain can reasonably be attributed, and pointed out that most Circuits, including the Tenth Circuit, have held that eligibility for benefits can be based upon subjective evidence. The Magistrate regarded the error of the AU as non-prejudicial (Magistrate’s Report at 6), but we consider that disregarding such in this case was not mere harmless error, particularly in view of the narrow severity test adopted in Royce and restated here. This is particularly true where, as here, subjective pain is supported by medical evidence.

After reviewing the entire record in light of the narrow construction of the severity test, including the medical evidence in the record, coupled with subjective complaints of pain supported by the medical evidence, this Court concludes that the AU erred in finding that the Claimant’s impairments were not severe, and the Magistrate erred in adopting the AU’s decision. The Report and Recommendation of the Magistrate in this case was handed down on May 28, 1985, prior to the Magistrate’s Report and Recommendation of June 1, 1985 in the Royce case. We consider that the narrow construction of the severity test adopted by the Magistrate in Royce should have required disapproval of the AU’s decision in this case. In all events, this Court finds that the evidence supporting the AU’s decision was not such that a reasonable person would have relied upon it in finding that the Claimant’s impairments were not severe. Therefore, the case is remanded, and the Secretary is directed to continue the sequential evaluation.


author: GESELL, District Judge.

text:
    TEXASGULF, INC., Plaintiff, v. UNITED GAS PIPE LINE COMPANY, Defendant.
    Civ. A. No. 2253-71.
    United States District Court, District of Columbia.
    Sept. 5, 1985.
   ORDER

GESELL, District Judge.

Upon consideration of the joint motion of plaintiff Texasgulf Inc. (“Texasgulf”) and defendant United Gas Pipe Line Company (“United”), filed herein August 29, 1985, for an order dismissing with prejudice Texasgulf’s complaint, as amended, against United and United’s counterclaim against Texasgulf, and withdrawing and setting aside the Court’s June 4, 1985, Memorandum on Liability, 610 F.Supp. 1329, and it appearing to the Court that the parties have reached a full and amicable settlement of all claims and causes of action which were, or could have been, asserted by and between them in this action, and are desirous of avoiding a protracted trial on damages and counterclaim issues, it is hereby

ORDERED that Texasgulf’s complaint, as amended, against United be and the same is hereby dismissed with prejudice; and it is further

ORDERED that United’s counterclaim against Texasgulf be and the same is hereby dismissed with prejudice; and it is further

ORDERED that the Court’s June 4, 1985, Memorandum on Liability shall have no legal effect; and it is further

ORDERED that each party shall pay its own costs.


author: SIMMONS, District Judge.

text:
    Patricia GALES, Plaintiff, v. UNITED STATES of America, Defendant.
    Civ. A. No. 84-1555.
    United States District Court, W.D. Pennsylvania, Civil Division.
    Sept. 6, 1985.
    Lee R. Golden, Pittsburgh, Pa., for plaintiff.
    Anthony M. Mariani, Asst. U.S. Atty., Pittsburgh, Pa., for defendant.
   OPINION

SIMMONS, District Judge.

I.

The above-captioned case was filed by the Plaintiff Patricia Gales, seeking money damages for personal injuries allegedly sustained as the result of a fall at the Veterans Administration Medical Center in Pittsburgh, Pennsylvania, on October 15, 1982. Jurisdiction is based on the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671 et seq. Discovery in the matter has concluded, and the Defendant has moved for summary judgment. Briefs and supplemental briefs have been submitted, oral argument has been held, and the Defendant’s motion for summary judgment is now ready for decision by this Court. The basis of the Defendant’s motion is that because there is no evidence that the Veterans Administration in any manner contributed to the Plaintiff’s accident, the Defendant is therefore entitled to judgment as a matter of law.

The factual background relevant to the decision of this motion may be briefly summarized as follows. On October 15, 1982, the Plaintiff, Patricia Gales, and her husband Donald Gales, visited the VA Hospital in Oakland, Pittsburgh, Pennsylvania, because the Plaintiff’s husband had an appointment for a check-up with a VA physician. Mr. Gales saw the doctor shortly before noon, spent approximately 45 minutes with him, and then the Gales went to the ground floor to eat lunch in the cafeteria, and they thereafter visited the PX, which was located on the same floor. The Gales were ready to leave the hospital, and walked toward the elevators near the cafeteria, when the Plaintiff Patricia Gales slipped and fell near the elevator. Plaintiff was helped up from the floor by her husband and Calvin Bush, a VA employee, and then Plaintiff was examined by a VA physician.

The apparent cause of the fall was a small puddle of clear liquid on the floor near the elevator, and Mr. Gales estimated the puddle to be about one and one-half to two feet in diameter. Mrs. Gales first believed that the substance was water, but later she and her husband described the substance as slippery and jelly-like. Mr. Gales believed that the substance was similar to surgical gel, but Calvin Bush, the VA employee, and a former surgical prep aide, concluded that the substance was probably water. Both Mr. Gales and Mr. Bush remarked that their observation of the liquid occurred after the fall, and that the liquid spread after the fall. There was no tracking of the substance away from the immediate area of the fall. Bush stated that he had been through that area at noon, and had not seen the liquid then. The area of the accident had been damp-mopped the morning of the accident, and the accident occurred at approximately 2:00 PM. Approximately 1300 persons entered the cafeteria on October 15, 1982.

There is no evidence that the Veterans Administration ever had any actual notice of the presence of this liquid on the floor prior to the time when Mrs. Gales fell. The floor area was routinely cleaned three times a day, and appropriate measures were taken when spills were detected. Hospital policy required that all employees report any spills or unclean conditions that were discovered in the hospital.

II.

In a case brought under the Federal Tort Claims Act, the law of the state in which the alleged tortious conduct occurred controls on the issue of liability. Hanko v. United States, 583 F.Supp. 1280, 1283 (W.D.Pa.1984), and Pennsylvania law is thus controlling here. Under Pennsylvania law, the possessor of land is not the insurer of the safety of those on the premises, and the mere existence of a harmful condition or the mere happening of an accident is not evidence of a breach of duty of care to invitees. Moultrey v. Great Atlantic & Pacific Tea Company, 281 Pa.Super. 525, 530, 422 A.2d 593 (1980); see also Amon v. Shemaka, 419 Pa. 314, 317, 214 A.2d 238, 239 (1956); Calhoun v. Jersey Shore Hospital, 250 Pa.Super. 567, 571, 378 A.2d 1294, 1296 (1977); Jones v. Sanitary Market Company, 185 Pa.Super. 163, 165-66, 137 A.2d 859, 860-61 (1958). Other evidence must be presented which tends to prove either that the proprietor knew, or in the exercise of reasonable care, should have known of the existence of the condition which caused the harm. Moultrey, supra.

Pennsylvania courts have held that if a harmful transitory condition is created by the possessor of land or those under his authority, then it is not necessary that the Plaintiff prove any notice of the condition in order to hold the possessor accountable. Penn v. Isaly Dairy Co., 413 Pa. 548, 198 A.2d 322, 323, 324 (1964). If the condition is one which the owner knows has frequently recurred, then actual notice of the condition may properly be found. Borsa v. Great Atlantic & Pacific Tea Co., 207 Pa.Super. 63, 68, 215 A.2d 289, 292 (1965). However, if the transitory condition is traceable to persons other than those for whom the owner is ordinarily accountable, there must be actual notice or constructive notice that the condition existed for such a length of time that in the existence of reasonable care it should have been discovered. Katz v. John Wanamaker, Inc., 381 Pa. 477, 482, 112 A.2d 65, 67 (1955); Parker v. McCrory Stores, 376 Pa. 122, 101 A.2d 377 (1954); Sheridan v. Horn & Hardart, 366 Pa. 485, 77 A.2d 362 (1951).

In the instant case, actual notice of the condition is not in issue, nor is there any evidence that the condition was one which the VA knew frequently recurred. Plaintiff must therefore proceed on a constructive notice theory in this case. The Plaintiff contends that summary judgment is not appropriate here since there is no direct evidence that the area of the accident was specifically inspected by the Defendant after the noontime inspection on the day of the accident. It is the Plaintiff’s contention that because Plaintiff is the non-moving party against whom a non-favorable inference cannot be drawn, this Court must therefore infer that the liquid substance was present on the floor for the two hour period preceding the accident, a time period sufficient to establish constructive notice.

The party moving for summary judgment has the burden of showing that he is entitled to judgment under established principles. Adickes v. S.H. Kress & Co., 398 U.S. 144, 160-61, 90 S.Ct. 1598, 1610, 26 L.Ed.2d 142, 156 (1970). Under Rule 56 of the Federal Rules of Civil Procedure, the moving party has met his burden and the granting of the summary judgment is proper if, considering all of the evidence of record in the light most favorable to the party opposing the motion, a prima facie case or defense is not established. If there is any evidence in the record from which a reasonable inference in the non-movant’s favor may be drawn, the moving party is not entitled to summary judgment. In re Japanese Electronic Products, 723 F.2d 238, 258 (3d Cir.1983).

Here, in order for the Plaintiff to establish a prima facie case, the Plaintiff must show that the Defendant had constructive notice that the liquid substance, which caused the spill, was on the floor for such a length of time that its existence should have been discovered by the Defendant. The Plaintiff has not produced any evidence indicating the length of time that the liquid was on the floor prior to the Plaintiff’s fall, but the Plaintiff nonetheless contends that the inference must be drawn that the liquid was on the floor for two hours prior to the fall, a sufficient length of time that the Defendant should have had notice of the same. However, this inference is not reasonable in light of the evidence presented by the Defendant that although hundreds of people passed through this area in the two hours preceding the accident, there was no tracking of the liquid substance to any area away from the immediate area of the accident. The absence of tracking from the area of a spill is evidence that the spill is one of recent origin. Lanni v. Pennsylvania Railroad Co., 371 Pa. 106, 88 A.2d 887 (1952). The Defendant has also produced evidence indicating that maintenance personnel passed through this area on a regular basis, and they were observant of unclean and/or unsafe conditions which would be promptly remedied.

Plaintiff additionally argues that if the substance is surgical gel, rather than water as the Defendant contends, it should therefore be inferred that the substance was dropped by one of Defendant’s employees. However, even assuming arguendo that the substance was surgical gel rather than water, Plaintiff has not produced any evidence indicating that surgical gel was in the exclusive control of the Defendant, since persons other than the Defendant’s employees (patients or out-patients) could have dropped the substance on the floor.

Because there are no facts showing that the liquid substance was on the floor for a sufficient time period such that constructive notice of the same may be reasonably inferred, entry of Summary Judgment in the favor of the Defendant United States of America is warranted. An appropriate Order will be entered.


author: LOVELL, District Judge.

text:
    Sheridan BARR, Clifford Buhler, Dennis Hammer, Nelson Stillwell, et al.; on behalf of themselves and all other employees similarly situated (except supervisory) at the Darby Sawmill of Champion International Corporation, Building Products Division, Plaintiffs, v. CHAMPION INTERNATIONAL CORPORATION, BUILDING PRODUCTS DIVISION AND TIMBERLAND DIVISION, Bonner Operators, Bonner, Mont., Defendants.
    No. CV 85-84-M.
    United States District Court, D. Montana, Missoula Division.
    Sept. 6, 1985.
    Howard C. Greenwood, Hamilton, Mont., for plaintiffs.
    Robert Sheridan, Garlington, Lohn & Robinson, Missoula, Mont., for defendants.
   OPINION AND ORDER

LOVELL, District Judge.

The four named Plaintiffs commenced this action in state court in Ravalli County, Montana, on behalf of themselves and all other similarly situated employees of the Darby Sawmill of Champion International Corporation, Building Products Division. The complaint alleges that the plaintiff class consists of approximately 55 employees, each of whom is allegedly entitled to payment of wages for several holidays, accrued vacation time, severance pay, and a statutory penalty in the amount of 5% per day, up to twenty days, of the total above payments due.

Defendant removed the cause to this Court pursuant to 28 U.S.C. § 1441, alleging diversity jurisdiction under 28 U.S.C. § 1832. Plaintiff has moved the Court to remand to state court on the ground that the amount in controversy does not meet the $10,000 jurisdictional minimum. Defendant asserts that there is proper federal jurisdiction for the reason that the aggregate interests of the class exceed $10,000. It is undisputed that Plaintiffs & Defendant are citizens of different states.

In the absence of a specific statutory exception, a federal district court can exercise removal jurisdiction over a case only if it would have had jurisdiction over it as originally brought by the plaintiff. Snow v. Ford Motor Co., 561 F.2d 787 (9th Cir.1977); Southern Pac. Co. v. McAdoo, 82 F.2d 121 (9th Cir.1936). Jurisdiction under 28 U.S.C. § 1332(a)(1) exists when the action is between citizens of different states and the amount in controversy exceeds $10,000, exclusive of interest and costs.

It is a long-standing, tenet of federal law that

when two or more plaintiffs, having separate and distinct demands, unite for convenience and economy in a single unit, it is essential that the demand of each be of the requisite jurisdictional amount; but when several plaintiffs unite to enforce a single title or right, in which they have a common and undivided interest, it is enough if their interests collectively equal the jurisdictional amount.

Troy Bank v. G.A. Whitehead and Co., 222 U.S. 39, 40-41, 32 S.Ct. 9, 56 L.Ed. 81 (1911).

This rule has been applied to forbid aggregation of claims where none of the claimants satisfies the jurisdictional amount. Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969). More importantly, the rule against aggregation of claims “also requires dismissal of those litigants whose claims do not satisfy the jurisdictional amount, even though other litigants assert claims sufficient to invoke jurisdiction of the federal court.” Zahn v. International Paper Co., 414 U.S. 291, 295, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973).

In the present case, certain members of the plaintiff class have claims in excess of $10,000, while the claims of the remaining class members do not meet the “amount in controversy” requirement. The Plaintiffs’ claims do not derive from rights.they hold in group status; in spite of the common questions of law and fact involved, Plaintiffs’ rights appear to arise only from the status of each as an individual employee of Defendant. Potrero Hill Community Action Committee v. Housing Authority, 410 F.2d 974 (9th Cir.1969). Therefore, this Court is convinced “to a legal certainty” that less than the jurisdictional amount is recoverable by at least some of the plaintiff class. City of Inglewood v. City of Los Angeles, 451 F.2d 948 (9th Cir.1972)

The Court of Appeals for the Ninth Circuit has held that if a plaintiff cannot aggregate claims to fulfill the jurisdictional amount requirement of § 1332, then neither can a defendant who invokes federal jurisdiction under the removal provisions of § 1441. Snow v. Ford Motor Co., 561 F.2d 787, 789 (9th Cir.1977). It is clear then that there is no independent basis for federal jurisdiction over the claims of those plaintiffs who cannot establish the minimum “amount in controversy” requirement. The only method by which this Court could assume jurisdiction over the entire case would be to exercise its discretionary pendent jurisdiction.

The concept of pendent jurisdiction encompasses both pendent claim and pendent party jurisdiction. In the simple “pendent claim” context, a plaintiff seeks to have a federal court hear a state claim (the pendent claim) which shares a “common nucleus of operative fact” with a federal question action (the anchoring claim) between the same parties.

The instant case presents the “pendent party” variant which, in addition to involving a state claim which is appended to the action that provides the anchoring source of federal jurisdiction, requires for its resolution the joinder of any ancillary party. Ayala v. United States, 550 F.2d 1196 (9th Cir. 1977).

The Ninth Circuit Court of Appeals has systematically rejected pendent party theory on the basis of the limited jurisdiction conferred upon federal courts by Article III, Section 2, Clause 1, of the United States Constitution. The Court has “repeatedly held that parties may not be added to an action absent an independent jurisdictional base for inclusion and that pendent party jurisdiction will not substitute for complete diversity or a federal question.” Safeco Ins. Co. of America v. Guyton, 692 F.2d 551, 555 (9th Cir.1982). This rule has been applied to prohibit a pendent party-plaintiff without a federally cognizable claim from “riding in on the coattails” of a plaintiff asserting an independent federal claim arising out of the same operative facts. Hymer v. Chai, 407 F.2d 136, 137 (9th Cir.1969); Ayala, supra, 550 F.2d at 1198.

Courts in the Ninth Circuit must adhere to its constitutionally based rule barring the adjudication of pendent party claims. Miletich v. Raley’s et al., 593 F.Supp. 124, 125 (D.Nev.1984). At first blush, the appropriate action here would seem to be to remand the pendent parties and to retain jurisdiction where the jurisdictional amount is clearly present. However, this would create an intolerable condition of multiplicity, where the same litigation would go forward with different parties simultaneously in state court and in this court. That result is untenable. Lacking guidance of any specific authority, I believe that Plaintiffs, the federal court system, the state court system, and Defendant who seeks removal jurisdiction in this Court, would all be best served by remanding the case in its entirety and allowing the state court to proceed expeditiously and exclusively with the litigation.

THEREFORE, IT IS HEREBY ORDERED that Plaintiffs’ motion is GRANTED and the above-entitled cause is REMANDED in its entirety to the District Court of the Fourth Judicial District of the State of Montana in and for the County of Ravalli.

IT IS FURTHER ORDERED that each party bear its or their own costs incurred by reason of Defendant’s removal.

       It would seem that even Defendant should prefer this result to the burden of litigating in both federal and state forums — which is the alternative to this result.