author: THOMAS F. HOGAN, District Judge.

text:
    ROSEDALE AND LINDEN PARK COMPANY, et al., Plaintiffs, v. William French SMITH, et al., Defendants.
    Civ. A. No. 83-2565.
    United States District Court, District of Columbia.
    Oct. 9, 1984.

      Michael Maggio, Maggio & Kattar, Washington, D.C., for plaintiffs.
    Diane Sullivan, Asst. U.S. Atty., Washington, D.C., for defendants.
   MEMORANDUM OPINION AND ORDER

THOMAS F. HOGAN, District Judge.

This case is before the Court on cross-motions for summary judgment. Plaintiff seeks reversal of a decision of the Immigration and Naturalization Service (INS) denying plaintiffs’ immigrant visa petition. The sole legal issue concerns the determination by the INS that plaintiff Maria Judith Horvath is not eligible for sixth preference immigration classification because of her alleged failure to meet the educational qualifications specified in the certified job offer.

FACTS

Rosedale and Linden Park Company (“Rosedale”) is a non-profit corporation providing cemetery and related services in northern New Jersey. In April of 1980, Rosedale sought certification pursuant to Section 212(a)(14) of the Immigration and Nationality Act, (the “Act”) for the position of burial plot salesperson on behalf of Ms. Horvath, a citizen of Uruguay. On the Form MA7-50B Application for Alien Employment Certificate submitted as part of the application, Rosedale listed “2” (two) years of college as minimum requirements for the job offered. Under the heading “College Degree Required,” plaintiff wrote “None/some college education preferred.” In the space labelled “Major Field of Study,” plaintiff listed “languages/business.”

In July, 1981, the Department of Labor approved Rosedale’s application, thereby certifying that there were not sufficient workers who were “able, willing, qualified ... and available” for such a position and that the employment of an alien such as Ms. Horvath would not “adversely affect the wages and working conditions of the workers in the United States similarly employed.” See Section 212(a)(14), 18 U.S.C. § 1182(a)(14).

Rosedale then filed a petition with the INS District Director in Newark to classify Ms. Horvath as a “sixth preference” immigrant pursuant to Section 203(a)(6) of the Act, 8 U.S.C. § 1153(a)(6). On April 15, 1982, the INS District Director denied Rosedale’s visa petition on the grounds that Ms. Horvath did not meet the job qualifications for such a position as set forth in the Department of Labor Dictionary of Occupation Titles. The District Director also asserted that despite the certification by the Department of Labor, “it is hard to believe that a U.S. worker with these qualifications does not exist.” Upon review of this decision, the Regional Commissioner of the INS remanded the case to the District Director on the ground that “the Service [INS] does not have the authority to delve into the procedural guidelines or procedures of the DOL.” However, the Commissioner instructed the District Director on remand to consider “whether the petitioner has established that [Ms. Horvath] possesses the minimum requirements specified on the certified job offer.” In particular, the Commissioner questioned whether plaintiffs had established that Ms. Horvath possessed the necessary educational requirements, defined as “two years of college with a major field of study in languages or business.”

On remand, the District Director again denied Rosedale’s petition. The director concluded that “[n]o evidence has been presented to establish the beneficiary’s major field of study ____” The case was again certified for review by the Regional Commissioner.

On November 10, 1982, Rosedale submitted additional evidence in an attempt to establish that Ms. Horvath satisfied the educational requirements set forth in the form MA7-50B application. This evidence included a transcript from Crandon College in Montevideo, Uruguay, which Ms. Horvath attended for two years, as well as an “English language” diploma from the Directive Council of the Cultural Alliance Uruguay-U.S.A.

On January 25, 1983, the Regional Commissioner affirmed the District Director’s denial of the visa petition. The Commissioner held that “[t]he transcript [from Crandon College] reflects that the beneficiary’s major field of study was in a secretarial course rather than in languages or business as required on the certified job offer.” The Commissioner also noted that “[although some of the courses may be related to business, the curriculum taken by the beneficiary falls considerably short of the requirement on the certified job offer; i.e., two years of college with a ‘major field of study in language/business.’ ” Thus, he concluded that the plaintiffs failed to sustain their burden of proof.

THE STATUTORY FRAMEWORK

One of plaintiffs’ principal arguments in this Court is that the INS lacks the authority to find that Ms. Horvath is not qualified. According to plaintiffs, the Department of Labor, pursuant to the certification process, possesses sole authority “to deal with the question of immigrant skills in relation to the American labor market.” The INS role is limited to “reviewing” the DOL certification for “abuse of discretion” or “misrepresentation.” This description of the division of authority between INS and DOL is mistaken; the primary responsibility for examining “qualifications” for preferential visas lies with the INS.

Under Section 203(a)(6), aliens “who are capable of performing specified skilled or unskilled labor ... for which a shortage of employable and willing persons exists in the United States” are qualified for sixth preference visa classification. 8 U.S.C. § 1153(a)(6). Section 212(a)(14) preconditions sixth preference visa classification on DOL certification by providing that aliens described in section 203(a)(b) shall be ineligible to receive visas unless “the Secretary of Labor has certified to the Secretary of State and the Attorney General that (A) there are not sufficient workers [in the United States] who are able, willing, qualified ... and available ... and (B) the employment of such alien will not adversely affect the wages and working conditions of the workers in the United States similarly employed.” 8 U.S.C. § 1182(a)(14).

It is clear that the certification of the Secretary of Labor is limited to issues focusing on the impact of the alien on the American workforce. The ultimate determination of the alien’s qualification for preferential visa status is delegated to the INS. Section 204 of the Act, entitled “Procedure for Granting Immigrant Status,” provides: “After an investigation of the facts in each case, and after consultation with the Secretary of Labor with respect to petitions to accord a status under section 203(a)(3) or (6), the Attorney General shall, if he determines that the facts stated in the petition are true and that the alien ... is eligible for a preference status under section 203(a), approve the petition and forward one copy thereof to the Department of State.” 8 U.S.C. § 1154(b). Thus, contrary to the suggestion of plaintiff, the determination of “eligibility” — including educational qualifications — is well within the statutory mandate of the INS.

This view of the division of authority between DOL and INS is supported by the recent opinion of the District of Columbia Circuit in Madany v. Smith, 696 F.2d 1008 (D.C.Cir.1983). In construing a similar preferential status provision, Section 203(a)(3), the court in Madany held that “[t]here is no doubt that the authority to make preference classification decisions rests with the INS. The language of section 204 cannot be read otherwise.” Id. at 1012. The court noted, however, that “DOL bears the authority for setting the content of the labor certification and that [INS] cannot impose job qualifications beyond those contemplated therein.” Id. at 1015 (emphasis in original).

THE PROCEEDINGS BELOW

Plaintiffs’ second argument suggests that the INS misconstrued the content of the labor certification by requiring a showing of two years of college with a “major” in languages or business as one of the qualifications for sixth preference classification. In the alternative, plaintiff argues that the INS decision that plaintiff did not possess these qualifications is not supported by substantial evidence on the record as a whole.

It is well settled that the findings of the INS with respect to Ms. Horvath’s qualifications “must be sustained if based on substantial evidence and not an abuse of discretion.” Wing Ding Chan v. INS, 631 F.2d 978, 980-81 (D.C.Cir.1980), cert. denied, 450 U.S. 921, 101 S.Ct. 1371 (1981). Before examining the evidence, the Court must first determine precisely what minimum educational credentials are required by the certified job offer. While plaintiffs are correct in asserting that liaison with non-English speaking clients is the essence of the job offer, it is also apparent that the job offer clearly requires two years of college with training and a “major field of study” in languages or business. Whether or not such college education is relevant or appropriate to the job in question is not an issue before this Court. The Court — like the INS — must examine the certified job offer exactly as it is completed by the prospective employer. In this case, two years of college and a “major field of study” in languages or business are the minimum educational requirements for a “qualified” employee.

It is undisputed that plaintiff Horvath has at least two years of college training. As noted by the Regional Commissioner, the certified copy of Ms. Horvath’s transcript dated June 20, 1967 states that Ms. Horvath has “completed the two years of our Secretarial course.” From this designation of Ms. Horvath’s degree, the Commissioner concludes that the beneficiary’s major field of study was in a “secretarial” course — not “business” or “language.” In Re Petition of Rosedale and Linden Park Company, Decision of Regional Commissioner, Immigration and Naturalization Service, Jan. 25, 1983.

It is not immediately apparent to the Court why the designation “secretarial” is automatically deemed to be unrelated to the study of “business.” In light of the parties’ agreement that no college degree is required, it would seem that the INS decision to automatically treat “secretarial” coursework as “non-business” and “non-language” is manifestly unreasonable if not entirely arbitrary.

In addition, the Court’s review of the transcript contained in the administrative record reveals that plaintiff Horvath enrolled in and passed a total of 36 courses in the two year period. If one includes the secretarial coursework within the business category, 23 out of 36 of the courses may be classified as either “business” or “language” courses. Sixteen courses are in “languages,” ranging from “Business Spanish” and “Spanish Grammar” to “Commercial English” and “Translation.” Seven of the courses are purely “business” oriented including courses in typing, shorthand and economics. The remainder might be classified as “liberal arts” courses.

Given the fact that virtually two-thirds of the courses taken during plaintiff’s two years of college relate to business or language topics, the Court holds that the INS conclusion that plaintiff Horvath lacks a “major field of study” in languages or business is not supported by substantial evidence on the record as a whole. See Ma dany v. Smith, 696 F.2d 1008, 1013 (D.C. Cir.1983).

In so holding, the Court recognizes that the INS has an expertise in the area of immigration and naturalization that the Court does not share. The present case, however, does hot deal with any technicalities of the law; rather, it involves reading and applying the plain language of the form MA7-50B application. Where the INS — or any other agency — produces a result that is arbitrary and not based on substantial evidence in the record, it is the duty of the courts to reverse that decision. Deference to the agency must not yield to the temptation to rubberstamp all decisions.

In Denver Tofu Co. v. INS, 525 F.Supp. 254 (D.Col.1981), for example, the court chided the INS for taking a “mechanical” approach to considering an alien’s qualification. Id. at 259. The court ultimately reversed the INS, holding that it was arbitrary and capricious to focus on a technical requirement of “management training” when the job involved the supervision of only three employees. Id. Similarly, in Guinto v. INS, 303 F.Supp. 1094 (C.D.Cal. 1969), a finding by the INS that a teacher without a baccalaureate degree was not a “member of the professions” was held to be an abuse of discretion. The teacher in question, who was seeking a third preference visa, had received his education overseas and had almost eighteen years teaching experience. Id. at 1095. Nevertheless, the INS found that the teacher lacked the necessary educational requirements. Id. at 1096. In Guinto, as in the present case, the court held the INS interpretation to be “clearly erroneous, arbitrary, ... [and] unreasonable.” Id. at 1097. The case was remanded for appropriate action. Id. at 1102. Thus, while the standard of review remains limited, the district courts, in appropriate circumstances, will reverse INS action that does not meet this standard.

The defendant has indicated that the alleged lack of educational qualifications is the only “deficiency” preventing approval of plaintiffs’ petition. In light of the Court’s disposition of this issue above, it appears that this deficiency has been cured. Accordingly, it is this 5th day of October, 1984 hereby

ORDERED that this case be, and hereby is, remanded to the Regional Commissioner, Eastern Regional Office of the Immigration and Naturalization Service, and that the Commissioner shall, in accordance with this opinion, take such steps as may be necessary to approve the petition for a sixth preference immigrant visa brought by the plaintiff Rosedale and Linden Park Company on behalf of plaintiff Maria Judith Horvath.

      . 8 U.S.C. § 1182(a)(14).

      . The Commissioner also questioned the absence of evidence supporting Ms. Horvath’s proficiency in Hungarian or Polish. Evidence presented on remand ‘‘clearly establish[ed]’’ that Ms. Horvath’s language abilities would meet the requirements of the certified job offer.

      . The Attorney General has delegated all power relating to immigration and naturalization to the INS. 8 C.F.R. § 2.1.

      . Plaintiff relied heavily on Singh v. Attorney General, 510 F.Supp. 351 (D.D.C.1980), aff’d on other grounds, 672 F.2d 894 (D.C.Cir.1981) (Mem.). The Madany court explicitly held, however, that "[w]e ... do not follow the ruling in Singh to the extent that it suggests that INS does not have primary authority for preference classification decisions." 696 F.2d at 1013.

      . In addition to the two years attendance at Crandon College in Montevideo, Uruguay, there is evidence in the record of additional diplomas or certificates including a "Certificate of Proficiency in English from the University of Michigan English Language Institute,” and a "Certificate of Successful Completion of the Language Proficiency Test in French Administered by the Organization of American States.” However, there is nothing in the record to indicate whether these "diplomas” represent completion of formal type of training which the Court equates with "college.” It may well be that these additional documents significantly enhance plaintiffs academic background. However, absent additional information in the record, it is impossible to determine what weight to give them. Thus, the failure of the INS to consider this evidence was not erroneous under the circumstances.

      . This is especially so in light of the record as a whole. The job description on Form MA7-50B describes Ms. Horvath’s potential tasks as “selling” graves and crypts to non-English speaking clients, ”direct[ing] promotional campaigns” towards non-English speaking clients and "translat[ing] deeds and corresponding literature.” This job description, like the rest of the record, provides no support for the INS’ narrow reading of the term “business” to include only those courses commonly studied by an American M.B.A. candidate or student in a four-year business degree program. Moreover, the INS apparently failed to consider whether plaintiff had a "major field of study” in the alternative field of "languages.”

      . It is possible to read the employment certification form as requiring the applicant to have "majored” in business or language in the sense of having received a B.A. degree with the specified major in these disciplines. Persons who graduate from American colleges and universities may select certain “major” and “minor” courses of study which signify the completion of a specified amount of coursework on a given subject matter. It should be noted that Form MA7-50B requests the information on "Major Field of Study” immediately following the instruction to "Specify College Degree Required.” This would normally support the more formal reading of the term "major.” However, in this particular case, no college degree is required— only two years of college level training. Requiring an applicant who has not completed college to prove that he has “majored” in a given field would be an unreasonable reading of the employment qualifications.


source: Caselaw Access Project

author: FRANCIS J. BOYLE, Chief Judge.

license: Public Domain

text:
    Laurie S. MERTENS, et al. v. ABBOTT LABS, et al.
    Civ. A. No. 80-0478.
    United States District Court, D. New Hampshire.
    Oct. 9, 1984.

      See also D.C., 99 F.R.D. 38.
    William S. Hall, Hall, Morse, Gallagher & Anderson, Thomas Rath, Orr & Reno, Concord, N.H., James Q. Shirley, Sheehan, Phinney, Bass & Green, Manchester, N.H., Howard B. Myers, Myers & Laufer, Concord, N.H., Richard S. Snierson, McLane, Graf, Raulerson & Middleton, P.A., Manchester, N.H., Michael R. Callahan, Gallagher, Callahan & Gartrell, Concord, N.H., W. Wright Danenbarger, Wiggin & Nourie, Manchester, N.H., Edward L. Gnys, Jr., Gunning, LaFazio & Gnys, Inc., Providence, R.I., John F. Triggs, Slade & Pellman, New York City, Thomas D. Gidley, Hinckley, Allen, Tobin & Silverstein, Providence, R.I., David J. KillKelley, Laconia, N.H., Raymond R. Ouellette, Ouellette, Hallisey, Dibble & Tanguay, P.A., Dover, N.H., Michael P. Lehman, Sulloway, Hollis & Soden, Concord, N.H., Matthias Reynolds, Devine, Millimet, Stahl & Branch, John E. Friberg, Wadleigh, Starr, Peters, Dunn & Chiesa, Manchester, N.H., Lawrence Spellman, Ransmeier & Spellman, Concord, N.H., Robert L. Dickson, Haight, Dickson, Brown & Bonesteel, Santa Monica, Cal., Bruce G. Tucker, Roberts, Carroll, Feldstein, Tucker, Inc., Providence, R.I., for defendant.
    Stephen J. Tybursky, Tybursky & Watson, Portsmouth, N.H., Kenneth C. Brown, Brown & Nixon P.A., Manchester, N.H., for plaintiff.
   OPINION

FRANCIS J. BOYLE, Chief Judge.

Defendant Eli Lilly has moved for summary judgment on the basis that Plaintiff Cathy Glater’s cause of action for in útero exposure to and resulting injury from diethylstilbestrol (DES) is barred by the statute of limitations. A hearing was held before the magistrate who recommended, pursuant to 28 U.S.C. § 636(b)(1)(C), that Plaintiffs action be dismissed. Plaintiff objected to the recommendation in a timely manner and the matter is now before this Court. For reasons detailed below the Court finds that Plaintiffs action must be dismissed.

Plaintiffs mother, Norleen Bellows, took DES at the direction of her gynecologist in 1953 while pregnant with the Plaintiff. At the time she resided in Oxford, Massachusetts. Plaintiff was born on October 5, 1953 in Worcester, Massachusetts and lived and worked in Oxford, Massachusetts until her marriage in January of 1975.

In late 1972 or early 1973 Mrs. Bellows’ gynecologist advised her that Plaintiff should be examined by a gynecologist because Mrs. Bellows had taken DES during her pregnancy. Plaintiff ignored this advice until, in late February of 1973, she noticed an unusual vaginal discharge. Plaintiff was referred to Dr. Mobed who performed a pap smear and biopsy in Worcester, Massachusetts. Dr. Mobed told Plaintiff that she was fine and that he would schedule a follow-up visit. A few days later Plaintiff began to hemorrhage. Dr. Mobed, feeling he was not qualified to handle Plaintiff’s problem, referred her to Dr. Arthur Herbst at Massachusetts General Hospital in Boston.

On March 20, 1973 Plaintiff, with her mother and fiance in attendance, was seen by Dr. Herbst. After questioning Mrs. Bellows about her use of DES in 1953 Dr. Herbst informed Plaintiff that she had a form of cancer related to DES. On April 2, 1973 Dr. Herbst operated on Plaintiff. While convalescing she read an article on DES which Dr. Herbst had published in a medical magazine. She did not discuss the connection between her illness and DES again, although in her deposition Plaintiff stated that she was aware of the relation between the two.

In 1975 Plaintiff married and moved to New Hampshire with her husband. Plaintiff was employed by The Allstate Insurance Company. In 1979 Plaintiff and her husband separated. At that time Plaintiff consulted an attorney in connection with her pending divorce. He apparently also advised her that she might have a cause of action based on her DES related injuries. Plaintiff moved to be made a party plaintiff to this action on July 11, 1980. The motion was granted on July 27, 1980. In August Plaintiff, who had been transferred to Allstate’s Burlington, Massachusetts office, rented an apartment in Lynn, Massachusetts. Although Plaintiff retained her New Hampshire driver’s license and claimed to live several days a week with friends in New Hampshire, the evidence reveals that she was living full time in Lynn and hence was once again a Massachusetts domiciliary.

Some time in 1980 Plaintiff spoke to her mother concerning the source of the DES she had taken. Mrs. Bellows remembered that the DES was made by Eli Lilly and was purchased at the Oxford Drug Store in Oxford, Massachusetts. The current store owners were able to produce prescription records for 1951, 1952, and 1954, but not 1953. Plaintiff then contacted the 1953 owners of the store who informed her that they stocked and sold only the Eli Lilly DES.

CONFLICTS OF LAWS

Much of the controversy surrounding this motion concerns the proper law to be applied. Defendant argues strongly that Massachusetts law, including the Massachusetts statute of limitations, should be applied by the Court. Plaintiff argues equally strenuously for the application of New Hampshire law. A federal court sitting in a diversity action must apply the law of the forum state. Erie Railroad Company v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938). The New Hampshire court has stated that the statute of limitations is a procedural matter and that New Hampshire will apply the law of the forum to any case before it. Gordon v. Gordon, 118 N.H. 356, 366, 387 A.2d 339, 342 (1978); see also Keeton v. Hustler Magazine, Inc., 682 F.2d 33, 35-36 (1st Cir.1982), rev’d on other grounds, — U.S.-, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984). This principle extends not only to the statute of limitations itself, but also to all matters involving the application of the statute of limitations. Restatement (Second) of Conflicts § 142, comment a (1971). Therefore, the question of when a cause of action accrues is also governed by New Hampshire law. Since a statute of limitations defines not only the time limits within which an action must be brought, but also the event which signals the beginning of the time allowed, and the circumstances under which the time available is tolled, application of the forum statute requires that all of its elements be observed. The accrual of Plaintiffs cause of action must be determined by application of the New Hampshire discovery rule.

STATUTE OF LIMITATIONS

Two separate statutes of limitations control Plaintiffs cause of action: the portion of her action sounding in tort is governed by the six year statute of limitations under New Hampshire R.S.A. 508:4 while her breach of warranty claim is covered by the four year statute of limitations in New Hampshire R.S.A. 382-A:2-725.

Plaintiff argues that her cause of action is governed by New Hampshire R.S.A. 507-D:2 (Supp.1979). This provision was part of a comprehensive products liability statute enacted by the New Hampshire legislature in 1978. This statute, which included a statute of repose provision, contained a three year statute of limitations for products liability actions. The statute also “grandfathered in” persons whose causes of action had already expired under the previous statute by computing the time for bringing products liability actions as of the effective date of the statute, August 22, 1978. Plaintiff argues that since she brought her action within two years of the statute’s effective date her action here is not time barred. Plaintiff’s argument is undermined by the fact that the New Hampshire Supreme Court has declared New Hampshire R.S.A. 507-D “void ... in its entirety.” Heath ¶. Sears, Roebuck & Co., 123 N.H. 512, 464 A.2d 288, 297 (1983). Plaintiff argues that Heath should not be interpreted as extinguishing her cause of action, since she brought suit in reliance on the statute of limitations contained in New Hampshire R.S.A. 507-D. She points out that New Hampshire disfavors the retroactive extinction of rights, see, e.g., Martin v. Gardner Machine Works, Inc., 120 N.H. 433, 435-36, 415 A.2d 878, 880 (1980), and that New Hampshire R.S.A. 21:37 provides that no repeal of an act shall affect a suit commenced before the repeal. Plaintiff argues that there should be no distinction made between legislative repeal and a declaration of unconstitutionality. Plaintiff is mistaken. Legislative repeal of an act indicates that, for policy reasons, the legislature has determined that a particular act must be changed or done away with. However, a declaration of unconstitutionality is a declaration that the legislature has acted beyond its authority and contrary to the constitution. If Plaintiff’s argument were adopted, Plaintiff would have obtained this Court’s assistance in a constitutional violation. A law declared unconstitutional is void ab initio, Trustees of Phillips Exeter Academy v. Town of Exeter, 90 N.H. 472, 495, 27 A.2d 569, 586 (1940). It creates no rights and no obligations in anyone. Huntington v. Worthen, 120 U.S. 97, 101-102, 7 S.Ct. 469, 471, 30 L.Ed. 588 (1887). Although this rule is not woodenly applied, nothing in this action admits of a departure from the general rule. Therefore, Plaintiff cannot rely on New Hampshire R.S.A. 507-D:2 as preserving her cause of action.

Plaintiff urges upon the Court the proposition that, if the New Hampshire Supreme Court were to interpret its decision in Heath, it would provide a ‘window’ which would allow Plaintiff to maintain her cause of action. In support of her theory Plaintiff cites Chodakowski v. Piper, 120 N.H. 330, 414 A.2d 1295 (1980) and Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 (1980). In Chodakowski the supreme court interpreted New Hampshire R.S.A. 507-C:4 and New Hampshire R.S.A. 507-C:10. The statute involved dealt with medical malpractice and was similar in form to the statute struck down by Heath. The supreme court in Chodakowski, supra, held that the legislature, by declaring that the statute of limitations on all malpractice actions would begin to run no earlier than the effective date of the statute, did indeed resuscitate causes of action barred by the previous statute of limitations. In Carson, supra, the supreme court struck down the malpractice statute for essentially the same reasons as it later declared the products liability statute unconstitutional in Heath. The court found that the provisions of the statute could not be severed and declared the limitations statute void in its entirety. The court also stated that Carson “has no effect on the holding in Chodakowski 424 A.2d 833. The statement, a single sentence, is not ambiguous. Considering that the New Hampshire court has recognized that an unconstitutional law is void ab initio, Plaintiff’s interpretation is strained. The supreme court wished to emphasize its position in Chodakowski to the effect that the legislature can rejuvenate expired causes of action was to remain as the law of New Hampshire. Therefore, Plaintiff’s purported reliance on New Hampshire R.S.A. 507-D:2 is misplaced. The statute has been declared unconstitutional and void in its entirety. There are no rights under the statute upon which a plaintiff could rely or which a court may enforce.

An unconstitutional act is not a law; it binds no one, and protects no one.

Huntington v. Worthen, supra, 120 U.S. at 101-102, 7 S.Ct. at 471.

Furthermore, Plaintiff has failed to demonstrate her claimed reliance upon New Hampshire R.S.A. 507-D:2. In her deposition Plaintiff indicated that after her surgery in 1973 she preferred to put the entire matter behind her. She apparently considered suing several years later but decided to take no action because her husband disapproved. When she consulted an attorney concerning her divorce in 1979 she was advised that she might also have a cause of action for her DES related injuries. Despite receiving this advice Plaintiff took no action until she moved to join this lawsuit in 1980. These facts do not indicate that Plaintiff consciously relied upon a particular statute in planning her lawsuit. Rather, she decided not to sue the Defendant but later changed her mind. The fact that her action is barred by the applicable statute of limitations is truly unfortunate from Plaintiff’s point of view. However, her position is no different than that of any other putative plaintiff who has vacillated until the statute of limitations has run. Plaintiff’s reliance argument basically boils down to a claim that she filed suit assuming that a particular statute of limitations would apply to her action. If the Court were to accept this theory, a plaintiff could claim to have relied on an inapposite statute of limitations at anytime in order to prevent the action being time barred. This would make a sham of the concept of a statute of limitations. While our judicial system emphasizes the importance of a plaintiff having his or her day in court it also stresses the importance of protecting defendants from stale claims. A plaintiff cannot undermine this policy by claiming reliance on an improper limitations statute.

In sum, Plaintiffs purported reliance upon New Hampshire R.S.A. 507-D:2 is misplaced for two reasons. The statute has been declared unconstitutional and therefore is void ab initio. Even if this were not the case, Plaintiff can not demonstrated that she in fact relied on the statute in bringing her action.

DISCOVERY RULE

Once the Court has determined that Plaintiffs cause of action is governed by New Hampshire’s six year statute of limitations for tort actions and four year statute covering breach of warranty cases, it must determine when the statutes began to run. This determination is aided by examination of New Hampshire’s discovery rule.

The New Hampshire supreme court first enunciated the discovery rule in Raymond v. Eli Lilly & Co., 117 N.H. 164, 169-170, 371 A.2d 170, 177 (1977). In that case it stated that a statute of limitations begins to run when a person knows or should have known that she has been injured by the defendant’s conduct. Id. at 171, 371 A.2d at 173-74. Later that year in Brown v. Mary Hitchcock Memorial Hospital, 117 N.H. 739, 378 A.2d 1138 (1977) the court expanded upon the rule. Reasoning that the opportunity to discover the wrongful conduct of the defendant was an essential component of the rule, the court stated the rule to be

A cause of action will not accrue until the plaintiff discovers or in the exercise of reasonable diligence should have discovered not only that he has been injured but also that his injury may have been caused by the defendants’ wrongful conduct.

Id. at 741, 378 A.2d at 1140.

Plaintiff argues that this rule should be given a sweeping interpretation.

Plaintiff alleges that she still does not know whether Eli Lilly has acted negligently since Eli Lilly continues to deny manufacture of the DES in question and that under Brown the statute of limitations has not yet begun to run. Acceptance of this argument would lead to absurd results. Under Plaintiff’s theory a cause of action would not accrue until Defendant either admitted liability or was adjudged liable. As long as anything was in dispute, according to Plaintiff, the cause of action would not accrue. This is not the intention of the discovery rule; the rule is merely designed to delay the running of the statute, not to do away with it entirely. See Dawson v. Eli Lilly and Co., 543 F.Supp. 1330, 1334 (D.D.C.1982); Fidler v. Eastman Kodak Company, 714 F.2d 192, 198 (1st Cir.1983) (citing Dawson). Plaintiff ignores the fact that the rule articulated in Brown includes a requirement that a plaintiff exercise reasonable diligence’ in determining whether her alleged injury resulted from Defendant’s wrongful conduct. This implies that Plaintiff cannot wait several years before attempting * to discover the identity of the Defendant or the existence of possible wrongdoing on the Defendant’s part and then claim the protection of the discovery rule in an effort to toll the running of the statute of limitations. Plaintiff knew of her DES related injuries as early as March 20, 1973. She was operated upon on April 2, 1973 and spent ten days recuperating in the hospital. She became 19 years of age on April 12,1973. The age of majority was established at 18 years on June 3, 1973. After her release she decided not to discuss her situation further. The evidence indicates that, had she asked her mother, she would have been informed that the DES she took was an Eli Lilly product. In addition, the 1953 owners of the drugstore where the prescription was filled were able to identify the product. Plaintiff stresses the fact that she did not know that Eli Lilly had manufactured the DES in question until 1980. This is taken as true. However, rather than aiding Plaintiff, this fact underscores her lack of diligence in investigating possible liability connected with her alleged injury. In this case Defendant’s identity was easily discoverable; Plaintiff, if she were exercising reasonable diligence, should have discovered Defendant’s identity no later than April 12, 1973. At that time she should have at least suspected possible wrongdoing on the part of the Defendant. Even before 1973 reports of products liability suits, many of them against manufacturers of DES, were widely published. Such articles continued to appear during the several years between Plaintiff's initial awareness of her injury and her bringing suit. Plaintiff herself read an article connecting DES with her type of injury; this article was published in a medical journal and the evidence does not reveal whether the article discussed negligence. However, knowledge of this article together with publicity of law suits brought against DES manufacturers should have alerted Plaintiff to possible wrongdoing. Plaintiff demonstrated an ambivalence regarding her possible cause of action. She made no effort to investigate either the source of the product or any possible wrongdoing until almost seven years after she knew of her injury and its cause. Because she has demonstrated a complete lack of diligence, Plaintiff brought suit after the time the protection of the discovery rule provided. See French v. R.S. Audley, Inc., 123 N.H. 476, 464 A.2d 279, 282 (1983).

Plaintiff’s conduct is very different from that of the plaintiff in Fidler v. Eastman Kodak Company, supra, where the First Circuit indicated that Plaintiff’s cause of action, while time barred under the Massachusetts discovery rule, might be extant under New Hampshire law. In Fidler the plaintiff had immediately obtained legal and medical advice upon becoming aware of her injury and continued to investigate the possibility of liability on the defendant’s part. In the case now before the Court, the Plaintiff has been dilatory, and must accept the consequences of her procrastination.

CONCLUSION

In conclusion, the Court finds that the applicable statutes of limitations are the six year provision of New Hampshire R.S.A. 508:4 and the four year provision of New Hampshire R.S.A. 382-A:2-725. It finds further that the accrual of Plaintiff’s cause of action is governed by the New Hampshire discovery rule and that Plaintiff’s action is time-barred. Plaintiff’s action is therefore dismissed.

SO ORDERED.

      . The magistrate found that Plaintiff's action was governed by the New Hampshire statute of limitations but that accrual of the cause of action was determined by application of the Massachusetts discovery rule. Wnile the Court agrees with the magistrate’s ultimate recommendation of dismissal it disagrees with his conclusion that Massachusetts law should be applied to the accrual issue. The result is the same whether New Hampshire or Massachusetts law is applied.

      . At the time that Plaintiff should have learned of her cause of action, in 1973, site was nineteen years old and within the age of majority in New Hampshire. See New Hampshire R.S.A. 21:44 (1983 Cum.Supp.).


author: HIRAM H. WARD, Chief Judge.

text:
    Emma SAMUELS, Plaintiff, v. AMERICAN TRANSIT CORPORATION, d/b/a Winston-Salem Service Division of American Transit Corporation, Defendant.
    No. C-84-281-WS.
    United States District Court, M.D. North Carolina, Winston-Salem Division.
    Oct. 10, 1984.

      Kenneth Clayton Dawson, Dawson & Mabe, Winston-Salem, N.C., for plaintiff.
    Anthony H. Brett, Womble, Carlyle, Sandridge & Rice, Winston-Salem, N.C., for defendant.
   MEMORANDUM OPINION AND ORDER

HIRAM H. WARD, Chief Judge.

This matter comes before the Court on defendant’s Motion for Summary Judgment (August 8, 1984) pursuant to Rule 56 of the Federal Rules of Civil Procedure. The Court will grant defendant’s motion because the plaintiff’s action is barred by the applicable statute of limitation.

Plaintiff was discharged from defendant’s employment on May 26, 1983. Plaintiff alleges that the termination of her employment was in violation of the collective bargaining agreement (labor agreement) between her Union, Transport Workers Union Local No. 248, and the defendant. On May 31, 1983, the plaintiff’s Union filed a grievance with her employer, and on June 1, 1983, a grievance “meeting” was held pursuant to the collective bargaining agreement. Affidavit of James M. Ritchey, Jr. at 1.

The employer in a letter dated June 10, 1983, denied the grievance on grounds that the discharge was just and based on sufficient grounds. Under the labor agreement the plaintiff’s Union had ten working days from the employer’s grievance denial in which to demand arbitration or the grievance would be barred and extinguished. Defendant’s Brief in Support of Motion for Summary Judgment, Exhibit A, Article F (August 8, 1984). Plaintiff’s Union made no such demand during the ten day period or at any time after the June 10, 1984 letter, in essence deciding not to pursue the plaintiff’s grievance. Also, no request was made for extension of the period in which to seek arbitration. Affidavit of James M. Ritchey at 2.

On March 2, 1984, plaintiff filed in the State Superior Court, Forsyth County, a complaint alleging wrongful discharge from employment. Defendant received service on March 5, 1984, and on April 3, 1984, petitioned for removal of the action to federal court. The case was removed. Because this action raises issues governed by § 301 of the Labor Management Relations Act, 29 U.S.C. § 185(a), removal was proper. See Samuels v. American Transit Corp., 588 F.Supp. 105 (M.D.N.C.1984).

Defendant claims that the plaintiff’s action is barred by the six-month statute of limitation established in DelCostello v. Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). The DelCostello statute of limitation applies to a “hybrid” action against an employer, pursuant to section 301, alleging breach of the labor contract and against a union alleging breach of the duty of fair representation. 462 U.S. at-, 103 S.Ct. at 2285, 76 L.Ed.2d at 482. Therefore, the initial inquiry is whether this action is a hybrid § 301/fair representation action under DelCostello.

When a collective bargaining agreement provides procedures to resolve employee disputes, then the decision reached under these procedures is generally final and binding on the parties and will not be disturbed by the courts. Hardee v. N.C. Allstate Services, Inc., 537 F.2d 1255, 1258 (4th Cir.1976). An exception to the finality rule exist for “hybrid” suits. See Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976). A hybrid claim as noted comprises two causes of action. One is against the employer under § 301 alleging a breach of the collective agreement. The other is against the union for breach of the union’s duty of fair representation, which is implied under the scheme of the National Labor Relations Act. DelCostello v. Teamsters, 462 U.S. at-, 103 S.Ct. at 2290-91, 76 L.Ed.2d at 488-89. A hybrid § 301/fair representation claim amounts to a challenge to the private settlement of disputes agreed upon by the employer and the union in the labor agreement. An employee may sue one defendant and not the other; “but the case plaintiff must prove is the same whether he sues one, the other, or both.” DelCostello, 462 U.S. at-, 103 S.Ct. at 2291, 76 L.Ed.2d at 489.

In grievance procedures an allocation of responsibility exists between the employer and the union. The grievance procedure contemplates that both employer and union will perform their respective obligations. See Bowen v. U.S. Postal Services, 459 U.S. 212, 227, 103 S.Ct. 588, 597, 74 L.Ed.2d 402, 416 (1983). The union plays a pivotal role in this procedure since it has the responsibility of determining whether to press an employee’s claims. An employer, as in the present case, may accept the union’s waiver of any challenge to his discharge as a final resolution of the matter. Bowen, 459 U.S. at 226, 103 S.Ct. at 597, 74 L.Ed.2d at 415.

The Court finds the plaintiff’s action to be a hybrid § 301/fair representation claim. The collective bargaining agreement between plaintiff’s 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. DelCostello, 462 U.S. at-, 103 S.Ct. at 2291, 76 L.Ed.2d at 489. These are the proof requirements of a hybrid action. Plaintiff may not ignore the requirement that she prove a breach of the union’s duty of fair representation by suing the employer only nor may she transform her action into a state law breach of contract suit.

Having found DelCostello’s six month statute of limitations applicable, the Court must determine when the plaintiff’s cause of action accrued and compute the applicable time for bringing this action. The Court finds this cause of action accrued when a final determination was made as to the plaintiff's grievance. E.g., Rogers v. Lockheed-Georgia Co., 720 F.2d 1247, 1250 (11th Cir.1983) (grievance not submitted by union for arbitration); Metz v. Tootsie Roll Industries, Inc., 715 F.2d 299, 303-06 (7th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 976, 79 L.Ed.2d 214 (1984) (union failed to process grievance). At that point the plaintiff could first successfully maintain a suit based on that cause of action. See Santos v. District Council of Brotherhood of Carpenters, 619 F.2d 963, 968-969 (2d Cir.1980). This interpretation complies with the general rule that a statute of limitations begins to run on the first day a cause of action could have been brought successfully. E.g., United States v. First National Bank of Atlanta, Ga., 441 F.2d 906, 907-08 (5th Cir.1971); Bell v. Aerodex, Inc., 473 F.2d 869, 873 (5th Cir.1973). It is also consistent with the strong federal policy of prompt resolution of labor disputes. United Parcel Services, Inc. v. Mitchell, 451 U.S. 56, 63, 101 S.Ct. 1559, 1564, 67 L.Ed.2d 732 (1981).

To determine when a final determination was made, the Court must look to the labor agreement applicable to the plaintiff. Under the collective bargaining agreement all cases of discharge are subject to grievance procedure; all requests for arbitration must be submitted within ten days after the grievance has been rejected by the employer. The agreement provides that the failure to request arbitration had the same effect as an arbitration award. See generally Metz v. Tootsie Roll Industries, Inc., 715 F.2d 299, 303 (7th Cir.1983). The failure to request arbitration is not any less final or reliable than an arbitration award and amounted to a final determination of plaintiff’s claim. Metz, 715 F.2d at 303.

The final determination of the plaintiff’s grievance occurred at the end of June 1983 (ten working days after the issuance of the letter rejecting plaintiff’s grievance). The statute of limitations began to run from approximately June 29th. Thus, the action would have been timely if filed on or before the end of December 1983. Plaintiff did not file this action until March 2, 1984. This filing was outside the six month statute of limitation established by DelCostello. Plaintiff’s claim is thereby barred.

IT IS, THEREFORE, ORDERED that defendant’s motion for summary judgment be, and the same hereby is, GRANTED.

      . The Fourth Circuit has held DelCostello to apply retroactively. See Murray v. Branch Motor Express Co., 723 F.2d 1146 (4th Cir.1983). If the applicable statute of limitations has run the defendant has a legally sufficient defense that would bar plaintiffs claim and involves no triable issue of fact. 10A C. Wright & A. Miller, Federal Practice and Procedure § 2734 (1983).

      . Federal labor law "is chiefly designed to promote the formation of collective agreement and the private settlement of disputes under it.” Auto Workers v. Hoosier Corp., 383 U.S. 696, 702, 86 S.Ct. 1107, 1111, 16 L.Ed.2d 192, 198 (1966).

      . The problem with plaintiffs position, that her action is simply a breach of contract action is that a collective bargaining is much more than traditional common law employment contract terminable at will. It is an agreement creating relationships and interest between the parties. "In defining the relationships created by such an agreement, the [Supreme] Court has applied an evolving federal common law grounded in national labor policy.” Bowen v. United States, 459 U.S. at 224-25, 103 S.Ct. at 596, 74 L.Ed.2d at 414.

      . In DelCostello the Supreme Court did not directly address when a plaintiffs cause of action accrued. Although a pivotal issue, the parties also neglected to address this issue.

      . Even if the statute begins to run when the claimant discovers, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged violation the claimant's action would still be barred. Plaintiff knew or at least should have known that under the provision of the labor contract the time to file for arbitration had arrived in late June of 1983. Metz, 715 F.2d at 304. See also Belic v. General Motors Corp., 588 F.Supp. 633 (S.D.Ohio 1984).
      To say, ..., that the running of the statute of limitations will be postponed indefinitely until actual notification is received from the Union or the employer, would be contrary to the policy of prompt resolution. Lack of notification would leave claims unresolved indefinitely and leave the procedure open to all the vices which statutes of limitations were intended to eliminate.

        Metz, 715 F.2d at 304.

      . It should be noted that the plaintiff has made no showing of facts, by affidavits or otherwise, that raise a genuine issue regarding whether the statute should be suspended.


author: BROWNING, District Judge.

text:
    Lillian Diane WELSH, Plaintiff, v. CUNARD LINES, LIMITED; ABC Corporation; and XYZ Corporation, Defendants.
    No. Civ 84-162-TUC-WDB.
    United States District Court, D. Arizona.
    Oct. 10, 1984.
    Elaine Hardin, Whitehill, Stolkin, Karp, West, Weiss & Berger, P.C., Tucson, Ariz., for plaintiff.
    Michael N. Poli, MeLoone, Theobald & Galbut, P.C., Phoenix, Ariz., for defendants.
   ORDER

BROWNING, District Judge.

This matter is before the Court on plaintiff's motion for relief from judgment under Rule 60(b), Fed.R.Civ.P.

The Court finds that relief should be granted. Rule 60(b)(1) permits relief from judgment on the grounds of mistake. The Court finds that it made a legal error. The Ninth Circuit allows relief from judgment under Rule 60(b)(1) on the grounds of a legal or “deliberative” error. Liberty Mutual Insurance Co. v. E.E.O.C., 691 F.2d 438, 441 (9th Cir.1982); Gila River Ranch, Inc. v. United States, 368 F.2d 354, 357 (9th Cir.1966).

Plaintiff, Lillian Welsh, alleges that she suffered injuries aboard the cruise ship Queen Elizabeth II due to the negligence of Cunard Lines.

The Court heard argument on May 14, 1984, and on May 15 granted Cunard Line’s motion to dismiss for lack of personal jurisdiction. The Court rejected Welsh’s request to transfer to a district where jurisdiction could be acquired. On June 4, judgment was entered in favor of Cunard Lines.

The law is clear that a court may transfer a case to another federal district under the venue transfer provisions of 28 U.S.C. § 1404 or 28 U.S.C. § 1406, even though the transferring court lacks personal jurisdiction over the defendant. Goldlawr, Inc. v. Heiman, 369 U.S. 463, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962); Nelson v. International Paint Co., 716 F.2d 640, 643 (9th Cir.1983); Froelich v. Petrelli, 472 F.Supp. 756, 760 (D.Hawaii 1979). This Court refused to transfer because the case had been removed from state court. Jurisdiction after removal is derived from the state court jurisdiction; the principle of “derivative jurisdiction” appeared to prohibit this Court from expanding the jurisdiction which attached in the state court.

The Court, on reconsideration, finds that transfer of a removed case where the state court lacked personal jurisdiction is authorized under Goldlawr v. Heiman and subsequent cases interpreting Goldlawr, despite the fact that transfer expands personal jurisdiction beyond that available to a state court.

There are two conflicting, even irreconcilable, principles at work, the principles of Goldlawr and of derivative jurisdiction. The Court must select which governs.

In Goldlawr, the Court permitted transfer to cure incorrect venue, even though the transferring court lacked personal jurisdiction over the defendant. The Court reasoned that the aim of the transfer statutes was to promote the interests of justice by removing obstacles to adjudication on the merits. 368 U.S. at 466-67, 82 S.Ct. at 915-16. Following Goldlawr, courts now generally permit transfer under 42 U.S.C. § 1404 or § 1406 simply to cure lack of jurisdiction, even though the transferring court would theoretically lack power over the person of the defendant to effect a transfer. In the Ninth Circuit, see Nelson, 716 F.2d at 643; Froelich, 474 F.Supp. at 760. The flexible and practical Goldlawr principle promotes justice at the expense of perfect conceptual clarity.

By contrast, the “derivative jurisdiction” principle places obstacles in the path of adjudication. The principle is ordinarily applied to suits initially brought in state court where the suits are within the exclusive jurisdiction of the federal courts or where sovereign immunity bars the state from exercising jurisdiction over the federal government as a defendant. See, e.g., Minnesota v. United States, 305 U.S. 382, 390-91, 59 S.Ct. 292, 296, 83 L.Ed. 235 (1939); Lambert Run Coal Co. v. Baltimore & Ohio R.R. Co., 258 U.S. 377, 382, 42 S.Ct. 349, 351, 66 L.Ed. 671 (1922); 14 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3722, at 574 (1976). Derivative jurisdiction mandates that the federal court dismiss such suits after removal: the rationale is that the state court from which the suit was removed had no jurisdiction — there was no suit to remove. Derivative jurisdiction is a technical, conceptual barrier to adjudication on the merits.

The Court has decided that Goldlawr and its progeny should control the fate of this case on three grounds.

First, the concept of derivative jurisdiction is unusually murky and its contours unclear. Courts have used the concept to refer to in personam jurisdiction. See, e.g., Aanestad v. Beech Aircraft Corp., 521 F.2d 1298, 1300 (9th Cir.) cert. denied 419 U.S. 998, 95 S.Ct. 313, 42 L.Ed.2d 272 (1974); Bach v. McDonnell Douglas Corp., 468 F.Supp. 521, 524 (D.Ariz.1979); Patrin v. Chrysler Credit Corp., 530 F.Supp. 736, 739 (W.D.Wis.1982). However, commentators firmly state that the principle applies only to subject matter jurisdiction. 14 C. Wright, A. Miller & E. Cooper, supra, § 3722, at 576; 1A J. Moore, B. Ringle & J. Wicker, Moore’s Federal Practice ¶ 0.168, at 659-60 (2d ed. 1983). If the commentators are correct, then “derivative jurisdiction” is simply inapplicable here.

Second, “derivative jurisdiction” is an archaic concept that impedes justice. It is out of tune with the federal rules. Courts and commentators agree, and urge that, while derivative jurisdiction may be justified conceptually, it leads to unfortunate results and should be abandoned. 14 C. Wright, A. Miller & E. Cooper, supra, § 3721, at 523-24; 1A J. Moore, B. Ringle & J. Wicker, supra, 11157, at 58-59. The Ninth Circuit, in a much cited opinion, lamented that derivative jurisdiction impedes the process of getting “the case out of the court that lacks jurisdiction ... and into the court that has jurisdiction ... so that it can be tried and a valid judgment can be entered.” State of Washington v. American League of Professional Baseball Clubs, 460 F.2d 654, 659 (9th Cir.1972).

Such an archaic and unhelpful principle, while still the law, should be carefully confined to cases where precedent unquestionably compels that it be applied. This is not such a case.

Third, neither the parties nor the Court has found cases that recognize the Goldlawr principle of flexible transfer to cure jurisdiction, but that refuse the same treatment to a removed case. By contrast, there are a small number of cases that sanction jurisdictional transfer of a removed suit. Most such cases do not even raise the problem of a conflict with derivative jurisdiction. See e.g., T-Birds, Inc. v. Thoroughbred Helicopter Service, Inc., 540 F.Supp. 548, 550 (E.D.Ky.1982); Helfer Commodities Corp. v. Pellegrino, 390 F.Supp. 520, 521 (S.D.N.Y.1975); See also Capital Cabinet Corp. v. Interior Dynamics, Ltd., 541 F.Supp. 588, 591 (S.D.N.Y. 1982) (sanctioning transfer to render any jurisdictional problem moot). The Fifth Circuit, in Aguacate, 566 F.2d at 525, did note the conflict, and chose transfer because it found that transfer is a procedural matter, and thus governed by the federal rules. This Court does not find the Fifth Circuit rationale convincing, on the grounds that the procedure/substance distinction in jurisdictional transfer is problematic. But it is significant that the Fifth Circuit identified the conflict this Court faces, and rejected derivative jurisdiction dismissal in favor of applying Goldlawr. In sum, the relevant case law favors transfer of removed cases in the same manner as transfer of cases originally filed in federal court.

The Court therefore finds that Goldlawr and Nelson govern the facts of the case before it, and that the interests of justice would be served by transferring this case to a district where the court may acquire personal jurisdiction over the defendant.

The plaintiff has filed a notice of appeal. Therefore this Court no longer has jurisdiction to grant relief. The rule in the Ninth Circuit is that the court should indicate in an order that it intends to entertain the Rule 60(b) motion and that it intends to grant relief, so that the party requesting relief can move the appeals court to remand. Long v. Bureau of Economic Analysis, 646 F.2d 1310, 1318 (9th Cir. 1981) (vacated on other grounds 454 U.S. 934, 102 S.Ct. 468, 70 L.Ed.2d 242 (1980)).

IT IS THEREFORE ORDERED that this Court intends to entertain the plaintiffs motion for Relief from Judgment brought under Rule 60(b)(1), Fed.R.Civ.P., and intends to grant relief. The plaintiff may move for a remand pursuant to this Order.

      . Such transfer is the rule across the circuits. See, e.g., Martin v. Stokes, 623 F.2d 469, 473 (6th Cir.1980); Corke v. Sameiet M.S. Song of Norway, 572 F.2d 77, 80 (2d Cir.1978); Aguacate Consolidated Mines, Inc. v. Deeprock, Inc., 566 F.2d 523, 525 (5th Cir.1978); United States v. Berkowitz, 328 F.2d 358, 360-61 (3d Cir.1963) cert. denied 379 U.S. 821, 85 S.Ct. 42, 13 L.Ed.2d 32 (1964); Celanese Corp. v. Federal Energy Administration, 410 F.Supp. 571, 578 (D.D.C.1976).

      . The Supreme Court's classic statement of the derivative jurisdiction principle in 1922 in Lambert Run refers to jurisdiction "of the parties,” but may simply refer to sovereign immunity as a bar to state court exercise of jurisdiction over the United States as a party defendant.


author: SAND, District Judge.

text:
    Richard A. ANSON, and Union Democracy Committee, Plaintiffs, v. The NATIONAL MARITIME UNION OF AMERICA, Shannon Wall, President of the N.M.U., Thomas Martinez, National Secretary Treasurer of the N.M.U., Andrew Rich, New York Branch Agent of the N.M.U., Defendants.
    No. 84 Civ 5468 (LBS).
    United States District Court, S.D. New York.
    Oct. 10, 1984.

      Richard A. Anson and Union Democracy Committee, pro se.
    Phillips & Cappiello, P.C., New York City, for defendants; Ned R. Phillips, New York City, of counsel.
   OPINION

SAND, District Judge.

Plaintiffs, a member of the National Maritime Union (hereinafter “Union”) and a committee comprised of candidates for union office, have filed a complaint seeking an order (1) preventing incumbent Union officers from enacting and enforcing amendments to the Union constitution and (2) enjoining the convening of the 1984 Union convention, scheduled to take place on October 1, 1984. Defendants, the Union and several incumbent Union officers, have moved to dismiss the complaint pursuant to Rule 12(b)(1) and (6) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. For the reasons discussed below, defendants’ motion to dismiss is granted.

The resolution of this motion is inextricably linked to the present procedural and temporal posture of plaintiffs’ claims. With respect to plaintiffs’ first request for relief, plaintiffs appear to predicate their request on alleged improprieties occuring during the 1983 election of defendant Union officers. See Complaint, p. 2, ¶ 2, p. 3, ¶ 2; see also Defendants’ Memorandum of Law in Support of Motion to Dismiss Complaint, etc., at 3 (hereinafter “Defendants’ Memorandum of Law”). Both plaintiffs and defendants acknowledge that the United States Department of Labor (hereinafter “the DOL”) is currently investigating charges that the 1983 election of Union officers was conducted in violation of Title IV of the Labor-Management Reporting and Disclosure Act of 1959 (hereinafter “the LMRDA”), 29 U.S.C. § 481 et seq. (1982). See Complaint, p. 2; 112, Defendants’ Memorandum of Law, at 3. In this connection, we note that Title IV of the LMRDA affords a presumption of validity to challenged elections of union officers. See 29 U.S.C. § 482(a) (1982). In addition, Title IV permits federal courts to entertain challenges to previously-conducted union elections only after the administrative process has been completed and only if the Secretary of Labor chooses to pursue the union member’s complaint by filing a civil action in federal court. See 29 U.S.C. § 482(b) (1982). Thus, to the extent that plaintiffs’ claim is based on the alleged 1983 Union election violations currently under investigation by the DOL, this Court is without jurisdiction either to determine the validity of these allegations or to grant the relief requested by plaintiffs.

With respect to plaintiffs’ second request for relief, this Court is similarly without jurisdiction to entertain this portion of plaintiffs’ claim. Initially, we note that plaintiffs can no longer obtain the particular relief sought in their complaint. Plaintiffs filed the instant complaint on August 1, 1984. However, plaintiffs have since failed to properly pursue any application for preliminary relief or expedited consideration of their claim. At the present time, the Union’s convention has already commenced and has presumably concluded. Thus, even if plaintiffs’ claims are properly before this Court and are found to be meritorious, this Court is no longer in a position to grant the relief which plaintiffs seek, namely, the enjoining of the 1984 Union convention.

Regardless of the relief requested by plaintiffs, however, this Court must still address the question of whether plaintiffs’ complaint states a claim over which this Court has jurisdiction. Plaintiffs’ complaint, liberally construed, can be interpreted as advancing two bases for challenging various acts which occurred prior to the 1984 Union convention and election of Union officers. Briefly stated, plaintiffs appear to allege that (1) defendants have “denied unreasonably” the opportunity to nominate delegates to the 1984 convention by making applications for such positions available at a limited place and time, and have engaged in ballot tampering in connection with this nominating process; and (2) Union funds have been improperly used to promote the candidacy of defendants, i.e., incumbent Union officers seeking re-election. Plaintiffs contend that these acts constitute violations of Title I of the LMRDA; specifically, plaintiffs allege that the first claim falls within § 101(a)(1) of the LMRDA, 29 U.S.C. § 411(a)(1) (1982), which guarantees union members “equal rights and privileges ... to nominate candidates ... subject to reasonable rules and regulations in such organization’s constitution and by-laws,” and that the second claim falls within § 101(a)(2) of the LMRDA, 29 U.S.C. § 411(a)(2) (1982), which guarantees union members “the right to meet and assemble freely with other members ... and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization ... subject to the organization’s established and reasonable rules pertaining to the conduct of the meetings____” See Complaint, p. 1, ¶ 4, p. 2, ¶ 3.

Although plaintiffs frame these claims as arising under Title I of the LMRDA, these claims are, in substance, violations of Title IV of the LMRDA as well. Plaintiffs’ claims regarding the nomination process appear to fall within 29 U.S.C. § 481(e) and (f) (1982), which govern the nomination of candidates and election of union officers by a convention of delegates. Defendants’ alleged improper use of Union funds falls within 29 U.S.C. § 481(g) (1982), which prohibits the use of union funds to promote candidates for union office. Plaintiffs’ assertion regarding access to Union publications, to the extent this constitutes a claim of wrongdoing by defendants and not merely a form of requested relief, is governed by 29 U.S.C. § 481(c) (1982). See New Watch-Dog Committee v. New York City Taxi Drivers Union, 438 F.Supp. 1242, 1245-46 (S.D.N. Y.1977) (§ 481(c) includes right to nondiscriminatory coverage in and utilization of union publications), and cases cited therein.

The troubling conflict presented by plaintiffs’ claims is thus apparent: while Title I provides various rights and protections for members involved in union elections, with enforcement and appropriate remedies available in federal court, Title IV also regulates the conduct of elections for union officers and provides an elaborate post-election procedure for enforcement of its standards by the Secretary of Labor. See Local No. 82, Furniture and Piano Moving, Furniture Store Drivers, Helpers, Warehousemen and Packers v. Crowley, — U.S. -, -, 104 S.Ct. 2557, 2560, 81 L.Ed.2d 457 (1984). Fortunately, the Supreme Court has recently reaffirmed the proper resolution of this conflict: where an individual union member challenges the validity of an election that has already been completed, the exclusive remedy for the alleged labor law violations lies in the administrative enforcement procedures provided by Title IV. See Crowley, supra, — U.S. at-, 104 S.Ct. at 2564-66; 29 U.S.C. § 483 (1982) (“The remedy provided by [Title IV] for challenging an election already conducted shall be exclusive.”). All of plaintiffs’ claims effectively constitute challenges to various incidents occurring as part of the Union’s nomination and election process; the nature of these claims, as well as the relief which plaintiffs request, make clear that plaintiffs challenge the validity of the 1984 election itself. See Complaint, p. 3, ¶ 3 (requesting “that the National Convention be suspended until after the new 1984 National Maritime Union Election”). In these circumstances, Crowley makes clear that this Court lacks jurisdiction over plaintiffs’ claims. If plaintiffs wish to pursue their claims, the appropriate course of action is to file a complaint with the Secretary of Labor in accordance with the procedures provided under Title IV. See Crowley, supra, — U.S. at-, -n. 23, 104 S.Ct. at 2567, 2571 n. 23.

Accordingly, defendants’ motion to dismiss the complaint for lack of subject matter jurisdiction is granted.

SO ORDERED.

      . Jurisdiction is alleged to be based on Title I of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 411 et seq. (1982).

      . Defendants have also moved in the alternative for an order pursuant to Rule 12(f) of the Federal Rules of Civil Procedure striking plaintiffs’ demand for a jury trial. In view of our disposition of defendants’ motion to dismiss, we need not decide the aforementioned alternative motion.

      . Plaintiffs request that a provision of the Union constitution governing the seating of, and voting by, Union officers as delegates at the Union convention "be suspended as all incumbent officials are in a non-legal elected positions as officers within” the Union. Complaint, p. 3, ¶ 2. Since plaintiffs’ complaint was filed on August 1, 1984, prior to the 1984 Convention and election of Union officers, plaintiffs' reference to "non-legal” elected officials presumably relates to the alleged labor law violations occurring during the 1983 elections of those officers.

      . This investigation is expected to be completed and a decision rendered by October 15, 1984. See Letter of George L. Nash, Area Administrator, New York Area Office, Labor-Management Services Administration, United States Department of Labor (September 21, 1984), submitted in support of Plaintiffs' Affidavit in Opposition to Defendants’ Motion.

      . This section provides:
      (a) A member of a labor organization—
      (1) who has exhausted the remedies under the constitution and bylaws of such organization and of any parent body, or
      (2) who has invoked such available remedies without obtaining a final decision within three calendar months after their invocation, may file a complaint with the Secretary within one calendar month thereafter alleging the violation of any provision of section 481 of this title (including violation of the constitution and bylaws of the labor organization pertaining to the election and removal of officers). The challenged election shall be presumed valid pending a final decision thereon (as hereinafter provided) and in the interim the affairs of the organization shall be conducted by the officers elected or in such other manner as its constitution and bylaws may provide.
      29 U.S.C. § 482(a) (1982).

      . This section provides in pertinent part:
      (b) The Secretary shall investigate such complaint and, if he finds probable cause to believe that a violation of this subchapter has occurred and has not been remedied, he shall, within sixty days after the filing of such complaint, bring a civil action against the labor organization as an entity in the district court of the United States in which such labor organization maintains its principal office to set aside the invalid election, if any, and to direct the conduct of an election or hearing and vote upon the removal of officers under the supervision of the Secretary and in accordance with the provisions of this subchapter and such rules and regulations as the Secretary may prescribe.
      29 U.S.C. § 482(b) (1982).

      . Although plaintiffs, pro se litigants, referred in their complaint to the fact that it was "necessary to proceed by showing cause that the convening of the October, 1984 NMU Convention should not be allowed,” Complaint, p. 1, ¶ 3, no order to show cause or similar application for preliminary relief was ever submitted by plaintiffs. This Court's pro se office was notified by chambers that plaintiffs should be instructed as to the proper procedures to follow regarding the pursuit of such relief. The pro se office sent the plaintiffs pertinent instructions. Plaintiffs have apparently been in contact with the pro se office since that time. See Plaintiffs’ Request to extend time to answer National Maritime Union Motion to Dismiss (September 6, 1984). The only paper which this Court has since received from plaintiffs, however, is plaintiffs’ Affidavit in Opposition to Defendants’ Motion (September 25, 1984).

      . Even assuming the Union convention is still in session and that the election process is still taking place, see fn. 10 infra, it would be inappropriate for this Court to grant the extraordinary and intrusive relief requested by plaintiffs. See Local No. 82, Furniture and Piano Moving, Furniture Store Drivers, Helpers, Warehousemen and Packers v. Crowley, -— U.S.-, 104 S.Ct. at 2557, 81 L.Ed.2d 457 (1984) (federal district court order enjoining ongoing union election balloting process pursuant to Title I of the LMRDA (29 U.S.C. § 412) is inappropriate; exclusive remedy is post-election suit by Secretary of Labor under Title IV), id. at-, 104 S.Ct. at 2568-69 (appropriate judicial relief during union election process does not include measures which would substantially delay or invalidate an ongoing election).

      . Even if plaintiffs had properly moved for preliminary relief prior to the commencement of the 1984 Union convention, plaintiffs still would have faced substantial impediments to the granting of the requested relief. See Calhoon v. Harvey, 379 U.S. 134, 140, 85 S.Ct. 292, 296, 13 L.Ed.2d 190 (1964).

      . Although plaintiffs never clearly explain when the 1984 election of Union officers was to occur, it appears that the Union election process spans a several-month period, culminating in the election of Union officers at a convention of delegates chosen by secret ballot. See Wier v. Wall, 83 Civ. 4368 (RWS), slip op. at 3 (S.D.N.Y. 1983) (describing National Maritime Union election process); 29 U.S.C. § 481(a) (1982) ("Every national or international labor organization ... shall elect its officers not less than once every five years either by secret ballot among the members in good standing or at a convention of delegates chosen by secret ballot.”).

      . Plaintiffs appear to allege that the time restrictions propounded by defendant Rich, the New York Branch Agent of the Union, are inconsistent with the Union constitution. See Complaint, pp. 1-2, ¶ 6.

      . In connection with this allegation, plaintiffs refer to the present DOL investigation of alleged labor law violations surrounding the 1983 election of Union officers. See Complaint, p. 2, ¶ 2. We assume, however, that plaintiffs are also alleging additional instances of ballot tampering with respect to the 1984 nomination of convention delegates.

      . Plaintiffs claim that regional conferences held prior to the 1984 Convention were used by defendants as an opportunity to engage in "preelection campaigning].” Complaint, p. 2, ¶¶ 4-5. The costs associated with these conferences were allegedly borne by the Union. See id.

      In their request for relief for the above conduct, plaintiffs seek an equal opportunity to reach Union members, including "equal access to the Union Publications.” Complaint, p. 2, ¶ 5.

      . Indeed, absent any allegation that defendants' rules regarding the nomination of convention delegates were discriminatorily applied, plaintiffs’ claim does not even fall within the ambit of Title I’s equal rights provision. See Calhoon v. Harvey, 379 U.S. 134, 138-39, 85 S.Ct. 292, 295, 13 L.Ed.2d 190 (1964).

      . Plaintiffs’ claims thus do not fall within that class of Title I cases which do not involve challenges to previously conducted union elections and thus are not barred by the exclusivity provision of Title IV. Cf. Ross v. International Brotherhood of Electrical Workers, 513 F.2d 840 (9th Cir.1975) (common law tort claim arising out of election-related conduct of union officer not barred by Title IV); Amalgamated Clothing Workers of America Rank and File Committee v. Amalgamated Clothing Workers, 473 F.2d 1303 (3rd Cir.1973) (suit seeking declaration that union’s election bylaws violated LMRDA not barred by Title IV where no relief relating to already-completed union election was sought), cited in Crowley, supra, -U.S. at-n. 16, 104 S.Ct. at 2566 n. 16.


author: JOSEPH H. YOUNG, District Judge.

text:
    BROWNING-FERRIS, INC. v. BALTIMORE COUNTY, MARYLAND.
    Civ. No. Y-84-2139.
    United States District Court, D. Maryland.
    Oct. 11, 1984.

      John Henry Lewin, Jr., and Benson Everett Legg, Baltimore, Md„ for plaintiff.
    Malcolm F. Spicer, Jr., H. Edgar Lentz, and John A. Austin, Towson, Md., for defendants Baltimore County, Donald P. Hutchinson and Ted Zaleski, Jr.
    Eleanor M. Carey, Evelyn O. Cannon, and Michael C. Powell, Baltimore, Md., for defendants Dept, of Health and Mental Hygiene, Governor Harry R. Hughes, William Eichbaum, Ronald Nelson, and Secretary Adele H. Wizack.
   MEMORANDUM

JOSEPH H. YOUNG, District Judge.

Plaintiff, Browning-Ferris, Inc. (“BFI”) has sued various State and County defendants, alleging constitutional violations stemming from the denial of state and county permits necessary to operate the Norris Farm sanitary landfill. Various state defendants have filed motions urging this Court to abstain, claiming that the issues presented here would be more properly resolved through State administrative and judicial proceedings. The Court conducted a hearing on the abstention issue on Friday, August 17, 1984. At the conclusion of that hearing, the Court indicated its intention to abstain. That intention is reflected herein. For the following reasons this Court will abstain from any action in this case.

The Court has considered the abstention issue carefully and has decided that the abstention principle announced in Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943), is applicable under the facts of this case. Burford abstention is appropriate where, as here, there is a “complex state regulatory scheme concerning important matters of state policy for which impartial and fair administrative determinations subject to expeditious and adequate judicial review are afforded.” Aluminum Co. v. Utilities Commission, 713 F.2d 1024 (4th Cir.1983) (applying Burford abstention in case involving state utilities regulation).

The issues here are sensitive issues of state land use and land policy which should not be decided by a federal court. Land use policy is a peculiarly local concern, and the federal courts have exercised “an abiding deference to the state courts in the area of land use policy.” Kent Island Joint Venture v. Smith, 452 F.Supp. 455, 462 (D.Md.1978). The operation of sanitary landfills and other solid waste disposal units is heavily regulated by the State of Maryland and the counties in which the sites are located, and the issues surrounding the operation of those sites are very sensitive, politically and otherwise. “A land use decision ‘clearly involves matters entirely within the realm of state and local governments with which they are singularly familiar, and there are few local issues more sensitive.’ ” Kent Island Joint Venture at 462, quoting Planned Parenthood of Maryland v. Mayor and Aldermen of the City of Annapolis, Civil No. N-78-501 (D.Md. April 7, 1978), Slip Op. at 5. Any decision on the plaintiff’s state and federal claims would “necessarily depend upon the construction of state land use law concerning the proper scope of authority of local planning bodies and Boards of Supervisors, the proper interpretation of state and local land use law and county zoning practices and procedures,” thus making abstention appropriate. Caleb Stowe Associates, Ltd. v. County of Albemarle, 724 F.2d 1079, 1080 (4th Cir.1984). The courts of Maryland and the administrative forum provided for resolving state solid waste disposal disputes “have extensive familiarity and experience with such matters, and we believe that they should have the first opportunity to pass upon them. A state adjudication may well avoid the necessity of a decision on the federal constitutional question presented as well as avoid needless friction in federal-state relations over the administration of purely state affairs.” Fralin and Waldron, Inc. v. City of Martinsville, 493 F.2d 481 (4th Cir.1974).

Considering all these factors, the Court is convinced that the rationale of Burford abstention clearly applies. This case involves both a complex regulatory scheme and predominantly local factors. The issue to be resolved concerns the ability of the state to make certain actions by the landfill operator, including the execution of a contract of sale, a condition of the renewal of a permit, and whether the state is obligated to renew a permit automatically. The state regulations concerning the issuance and renewal of permits for landfills and other solid waste disposal sites are long and complicated, consisting of eighteen pages of specific factors and requirements to be considered. The state provides both an administrative process to resolve disputes and adequate judicial review of administrative decisions. Finally, any federal court intervention in this issue could be highly disruptive to the state’s regulatory scheme.

In a recent case urging abstention in land use cases, it was stated that the “basic principle behind both Pullman [Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941)] and Burford abstention is that the federal courts should exercise discretion in the use of their equitable powers, particularly when asked to enjoin state officials in their official duties.” Ad+Soil Services, Inc. v. Board of County Commissioners of Queen Anne’s County, 596 F.Supp. 1139 (D.Md.1984). This Court, in exercising that discretion will abstain from any action in this case. As is consistent with abstention under the Burford rationale, the case will be dismissed without prejudice.

ADDENDUM

The Court is aware of the Motion to Reconsider filed by the plaintiff. BFI contends that a ruling by the Hearing Officer to exclude certain issues and evidence from consideration in the administrative procedure, will deny it an adequate opportunity to present its case. BFI also contends that as a result of the ruling to exclude evidence on certain issues, specifically on the issue of whether it complied with state environmental regulations, “no land use, environmental, or other complex issues of local concern will be adjudicated at the administrative hearing.”

The administrative decision to exclude issues and evidence does not change this Court’s opinion that the issues to be decided concerning the proper or improper denial of a permit are issues of state land use policy and are most effectively decided in a state administrative forum. Complex regulatory issues do remain. It is precisely because of the complexity of the state and county regulations that the Hearing Officer is the most appropriate person to decide what evidence is relevant to the decision on whether the denial was improper. In applying the regulations concerning the renewal of permits to the facts of this case, the Hearing Officer may very well determine that some evidence proposed by BFI does not bear on whether the State’s action was justified. That determination will be consistent with the complex regulatory scheme which the Hearing Officer must apply.

The motion to reconsider is denied.


author: LOUIS H. POLLAK, District Judge.

text:
    Jules BORENSTEIN v. CITY OF PHILADELPHIA, Russell Briggs.
    Civ. A. No. 84-2132.
    United States District Court, E.D. Pennsylvania.
    Oct. 11, 1984.

      David Kairys, Kairys, Rudovsky & Maguigan, Philadelphia, Pa., for plaintiff.
    John F.X. Monaghan, Asst. City Sol., City of Philadelphia, Law Dept., Philadelphia, Pa., for defendants.
   MEMORANDUM

LOUIS H. POLLAK, District Judge.

Plaintiff Jules Borenstein filed this civil rights action against the City of Philadelphia and Officer Russell Briggs on May 2, 1984. The complaint alleges claims against the defendants under 42 U.S.C. § 1983 due to the allegedly unlawful arrest and confinement of plaintiff in May of 1982. Plaintiff also asserts pendent state law claims against defendants for assault, battery, false arrest, false imprisonment, malicious prosecution, intentional infliction of emotional distress, outrageous conduct, invasion of privacy, negligence, gross negligence and negligent hiring, retention and supervision.

On May 25, 1984, defendants filed the motion to dismiss presently pending before me. Plaintiffs responded to that motion on July 20. Defendants have not replied to plaintiff’s submission.

Defendants attack the complaint on numerous grounds. I will discuss each of defendants’ arguments in the order in which they are asserted.

A. Direct Constitutional Claims

Defendants argue that plaintiff may not assert his claims directly under the Fourth, Fifth or Fourteenth Amendments of the Constitution. DiGiovanni v. City of Philadelphia, 531 F.Supp. 141 (E.D.Pa.1982); Jones v. City of Philadelphia, 481 F.Supp. 1053 (E.D.Pa.1979). However, the complaint does not attempt to raise claims directly under these constitutional provisions. The only reference to these amendments is found in ¶ 22 of the complaint which reads:

By these actions, defendants have deprived plaintiff of rights secured by the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution, in violation of 42 U.S.C. § 1983.

Moreover, the jurisdictional allegations in the complaint state only that the “action” is brought pursuant to 42 U.S.C. § 1983. Complaint ¶ 1. Thus, plaintiff has not sought to raise the types of claims which defendants seek to dismiss.

B. § 1983 Liability of the City of Philadelphia

The motion to dismiss also contends that the complaint does not allege a policy or custom of the City of Philadelphia which is linked to the unlawful conduct. Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In Monell, the Supreme Court determined that, although municipalities may be liable under § 1983, they could not be sued under that statute solely on the basis of vicarious liability. A plaintiff must establish that his injury is attributable either to an implicit or to an explicit policy or custom of the municipality.

Also, the Court of Appeals for the Third Circuit has directed that civil rights complaints must be pleaded with specificity and may not merely make conclusory allegations of constitutional deprivations or the existence of municipal policies. E.g., Ross v. Meagan, 638 F.2d 646, 650 (3d Cir.1981) (per curiam); Rotolo v. Borough of Charleroi, 532 F.2d 920 (3d Cir.1976). Such complaints must contain some minimal factual presentation which supports the broad conclusions asserted.

Only three paragraphs of the complaint are relevant to the determination whether these requirements have been met in the claims against the City.

18. Defendant City of Philadelphia, as a matter of policy and practice, has intentionally and deliberately failed to adequately discipline, train or otherwise direct police officers concerning the right of citizens, thereby causing the defendant officers in this case to engage in the unlawful conduct described above.
19. Defendant City of Philadelphia, as a matter of policy and practice, has intentionally and deliberately failed to properly sanction or discipline police officers, including the defendants in this case, for violations of the constitutional rights of citizens, thereby causing police, including defendants in this case, to engage in unlawful conduct.
20. Defendant City of Philadelphia, as a matter of policy and practice, has intentionally and deliberately failed to sanction or discipline police officers, including defendants in this case, who are aware of and subsequently conceal violations or the constitutional rights of citizens by other police officers, thereby causing and encouraging police, including defendants in this case, to engage in unlawful conduct.

These allegations apparently satisfy the terms of Monell. They state that certain policies of the City of Philadelphia have a causal relationship to the injuries sustained by plaintiff. It is much more difficult, however, to determine whether the complaint presents these allegations of municipal policy with sufficient specificity. Obviously, it is difficult for a plaintiff in a case such as this to know, in any detail, facts surrounding municipal policies or customs other than those policies which have taken the form of local ordinances. However, if one is to sort out those claims which have no substantial basis in fact, it is necessary to require that the complaint contain some degree of factual support for such claims. Such factual support is absent from the allegations against the City in this case.

The complaint adequately recites facts in support of the civil rights claim against Officer Briggs. But those portions which attempt to extend responsibility for plaintiff’s injuries to the City present only conclusions. These paragraphs state that the City “intentionally and deliberately,” in accordance with “policy,” failed “adequately” or “properly” to train or to sanction officers. They also state that these alleged policies “caus[ed] the defendant officers in this case to engage in the unlawful conduct described above.” Complaint at 1118. Not a single “fact” is presented in any of these paragraphs which would tend to establish the existence of any of these alleged policies. Therefore, I will dismiss the § 1983 claim against the City of Philadelphia. This dismissal is without prejudice to plaintiff’s right to amend the complaint within twenty days of the date of this Memorandum if he can properly allege a basis for liability on the part of the City. See Rotolo v. Borough of Charleroi, 532 F.2d 920, 923 (3d Cir.1976).

C. Pendent State Claims

With regard to the wide range of pendent state law claims asserted by plaintiff, defendants argue that all such pendent claims are barred by the Political Subdivision Tort Claims Act (PSTCA), 42 Pa. Cons. Stat.Ann. §§ 8541 to 8564 or that they should be dismissed for lack of pendent jurisdiction should the federal question claims be dismissed. The PSTCA protects from liability all municipalities and municipal employees acting within the scope of their offices unless the liability-producing conduct falls within one of eight statutory exceptions. 42 Pa. Cons.Stat.Ann. § 8542. Plaintiff does not dispute that the claims asserted in the present action do not fall within any of these categories.

However, plaintiff argues that the City of Philadelphia has waived its immunity with regard to claims asserted against police officers. In support of this proposition, plaintiff cites to Chapter 21-700 of the Philadelphia Code:

21-700 Waiver of Governmental Immunity
21-701(a) The City shall not plead governmental immunity as a defense in any civil action commenced by any person sustaining bodily injury or death caused by negligence or unlawful conduct of any police officer while the latter is acting within the scope of his office or employment.
(b) Nothing contained herein shall be construed to repeal or modify the Workman’s Compensation Laws.

Defendant has not responded to this argument or contested the existence and applicability of this ordinance.

This ordinance was first enacted by the City Council of the City of Philadelphia in 1962. At that time, the ordinance provided for a waiver of the defense of governmental immunity in civil actions arising out of alleged negligence or unlawful conduct of “any employee.” In 1971, the ordinance was amended to limit the waiver of governmental immunity to cases involving the acts of police officers only.

Both the original enactment of the waiver and the amendment to the ordinance occurred during the time in which governmental immunity was a matter of state common law and not statutorily mandated. In 1973, the Supreme Court of Pennsylvania abrogated the judicially-created immunity of local governments in Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973). The PSTCA was enacted in 1978 as a response to concerns about the effects of the Ayala decision on municipal budgets. Philadelphia has not altered the terms of the waiver ordinance since the codification of governmental immunity in the PSTCA.

Philadelphia’s Home Rule Charter, 53 Pa. Stat.Ann. §§ 16251 to 17096, authorizes the City to pass legislation such as 21-701. The primary state statutory limitation on this power is found in § 13133 of Title 53 of the Pennsylvania Code. That provision states in pertinent part:

Notwithstanding the grant of powers contained in this act, no city shall exercise powers contrary to, or in limitation or enlargement of, powers granted by acts of the General Assembly which are—
(b) Applicable in every part of the Commonwealth.
(c) Applicable to all the cities in the Commonwealth.

If the grant of immunity found in the PSTCA were to be treated as a “power” conferred on all municipalities, it is possible to construe Philadelphia’s attempted waiver of its immunity as an attempt to limit such “power,” contrary to the terms of § 13133.

However, subsections (b) and (c) of § 13133 have been consistently interpreted by the Pennsylvania courts to place very few restrictions on the legislative authority of “first class cities” such as Philadelphia. A local ordinance will only run afoul of the limitations in § 13133 if it affects substantive matters of statewide concern. E.g., School District of Philadelphia v. Zoning Board of Adjustment, City of Philadelphia, 417 Pa. 277, 207 A.2d 864 (1965); Ebald v. City of Philadelphia, 387 Pa. 407, 128 A.2d 352 (1957); In re Addison, 385 Pa. 48, 122 A.2d 272 (1956), appeal dismissed, 352 U.S. 956, 77 S.Ct. 353, 1 L.Ed.2d 316.

Although the availability of the governmental immunity defense and the need for certain exceptions to that defense are potentially matters of statewide concern, it is apparent that the question whether any individual municipality should assert that defense in a particular class of cases is a matter of peculiarly local concern. Thus, the City is empowered to enact an ordinance such as 21-701.

Furthermore, the PSTCA itself does not preclude the waiver of immunity found in 21-701. The Act specifically states that local communities may enact rules and regulations as long as they are “not inconsistent” with the other provisions of the PSTCA. 42 Pa. Cons.Stat.Ann. § 8563(a). Philadelphia’s waiver of immunity is in no manner inconsistent with the PSTCA. That act was intended to reinstate the governmental immunity which had been abolished in Ayala. See Carroll v. County of York, 496 Pa. 363, 437 A.2d 394 (1981); Note, “The Political Subdivision Tort Claims Act: Pennsylvania’s Response to the Problems of Municipal Tort Liability,” 84 Dickinson L.Rev. 717 (1980). Although the Act lists only eight exceptions to the broad grant of immunity found in § 8541, these are essentially the exceptions which existed under the common law of governmental immunity in Pennsylvania. They are not necessarily exclusive; and it would not be inconsistent with the purpose of the PSTCA for a particular community to conclude that the fiscal burden of an enlarged waiver of immunity would not be so great as to outweigh the public interest in compensation of victims of negligence in certain classes of cases not included in the Act’s eight exceptions. In fact, the May 1978 Report of the Joint State Government Commission on Sovereign Immunity — the report which the Pennsylvania Supreme Court identified in Carroll as the “basis for the Political Subdivision Tort Claims Act” — states that “as ... experience with costs of claims and administrative expenses accumulates, limited waivers in other areas of possible liability may be added.” Joint State Government Commission, Sovereign Immunity 10 (May 1978).

Philadelphia determined in 1962 that it was in the interest of its citizens and within the financial abilities of the City to compensate persons injured by the negligence or willful misconduct of its employees. That decision was reevaluated in 1971 and the City reconfirmed its determination that the balance favored compensation of victims when the actions of police officers were the alleged cause of the injury. Although this all occurred during the time of judicially-created governmental immunity, the range of conduct which was protected by governmental immunity at that time was substantially equivalent to that now protected by statute. Thus, there is no reason to believe that the waiver enacted by the City Council of Philadelphia in 1962 and 1971 is not fully applicable today. Accordingly, I will deny the City’s motion to dismiss the pendent state law claims with prejudice. However, in light of the dismissal of the federal question claims against the City of Philadelphia, I will decline to exercise pendent jurisdiction of the state law claims. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Of course, this determination is without prejudice to plaintiff’s right to refile the pendent claims should he amend his § 1983 allegations against the City.

Turning to the pendent state law claims against defendant Briggs, the language of 21-701 does not reflect any intention to waive the defense of official immunity which protects municipal employees from liability for their negligent acts. 42 Pa. Cons.Stat.Ann. § 8545. Because waivers of immunity are to be narrowly construed, see Vann v. Board of Education of School District of Philadelphia, 76 Pa.Cmwlth. 604, 464 A.2d 684 (1983); Smith v. Lancaster County Tax Bureau, 23 D. & C.3d 734 (1982), I cannot interpret the City’s waiver of “governmental immunity” as a waiver of defendant Briggs’ official immunity.

However, a municipal employee is only immune from suit under the PSTCA for his negligent conduct. Willful misconduct is specifically excluded from the protection of the Act. 42 Pa. Cons.Stat.Ann. §§ 8542(a)(2) and 8550. Thus, to the extent that the complaint alleges intentional tortious conduct on the part of defendant Briggs, I will allow the pendent state law claims to remain in this litigation.

An order reflecting these rulings accompanies this Memorandum.

      . The City of Philadelphia apparently files a relatively standardized motion to dismiss in a substantial proportion of the civil rights suits in which it is a defendant. Although this is not improper practice when cases raise the same legal issues, it is important that a litigant review the claims presented in each case and only present those which are applicable.

      . Paragraph 13 of the complaint states that "[d]efendant took plaintiffs personal belongings without providing him a receipt and failed to return a small penknife that was a valued gift from [plaintiffs] deceased father-in-law.” The PSTCA excepts from this blanket of immunity, losses of personal property in the possession or control of a municipality, 42 Pa. Cons.Stat.Ann. § 8542(b)(2). Therefore, the City and defendant Briggs may not assert immunity with respect to the claimed property loss.