author: SINGLETON, Chief Judge.

text:
    GRM, et al., Plaintiffs, v. EQUINE INVESTMENT AND MANAGEMENT GROUP, et al., Defendants.
    Civ. A. No. 83-5951.
    United States District Court, S.D. Texas, Houston Division.
    Oct. 23, 1984.

      J. Eugene Clements, Porter & Clements, Houston, Tex., for plaintiffs.
    D. Bobbitt Noel, Jr., Vinson & Elkins, Houston, Tex., Joan Gaughan Devlin, Pittsburgh, Pa., Jesse S. Faerber, Fenster & Faerber, Plantation, Fla., Richard A. Gum-pert, Bracewell & Patterson, Percy Foreman, James R. Leahy, Reynolds, Allen & Cook, Daniel R. Kirshbaum, Axelrod, Smith, Komiss & Kirshbaum, Houston, Tex., Jay J. Madrid, Winstead, McGuire, Sechrest & Minick, Michael P. Lynn, Akin, Gump, Strauss, Hauer & Feld, Dallas, Tex., Michael Wilson, Richard Frankel, Miller, Keeton & Bristow, Houston, Tex., Asher Fensterheim, Fensterheim & Fensterheim, Paul R. Grand, Grand & Ostrow, New York City, Graham Kerin Blair, Boyar, Norton & Blair, Houston, Tex., for defendants.
   MEMORANDUM AND ORDER

SINGLETON, Chief Judge.

This action arises out of plaintiffs’ investment in a Florida limited partnership entitled The Arabian Breeding Program I. Plaintiffs allege that defendants committed various fraudulent acts in connection with that partnership’s offering which violated federal and Texas laws.

Plaintiffs GRM and B-C Investments are Texas general partnerships comprised of Houston residents. Plaintiff Frederick M. Otto is an individual residing in Houston. Defendant Andover Funding Limited is a South Dakota general partnership with a Delaware corporation as its corporate general partner. Defendant Andover Financial Corporation is a Maine corporation with its principle place of business in Connecticut. Andover Funding Ltd. and Andover Financial Corporation jointly filed a motion to dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure. In support they argue: (1) The Texas long-arm statute does not provide this court personal jurisdiction, (2) Title 15 U.S.C. § 78aa does not provide this court personal jurisdiction, and (3) asserting personal jurisdiction under Section 78aa would violate the Fifth Amendment of the United States Constitution.

Having considered the relevant facts and law, this court determines that the Andover defendants’ motion should be denied.

I. APPLICABLE JURISDICTIONAL STATUTE

The Andover defendants first argue that the Texas longrarm statute, Tex.Rev. Civ.Stat. Art. 2031b, does not give this court personal jurisdiction since the And-over defendants lack the systematic business in or minimum jurisdictional contacts with Texas required by the statute and United States Constitution. That argument is irrelevant since the Texas long-arm statute does not here apply.

Plaintiffs allege the Andover defendants violated the 1933 Securities Act (“1933 Act”), the 1934 Securities Exchange Act (“1934 Act”), and various Texas laws. The jurisdiction and venue provision of the 1934 Act, 15 U.S.C. § 78aa, obviously governs this court’s personal jurisdiction as to the 1934 Act claims. That provision also governs actions under the 1933 Act when, as here, a plaintiff joins 1933 Act and 1934 Act claims in one suit. Hilgeman v. National Ins. Co. of America, 547 F.2d 298, 301 n. 7 and cases cited therein (5th Cir. 1977). That 1934 Act provision likewise governs this court’s personal jurisdiction as to plaintiffs’ pendent Texas law claims. E.g., Emerson v. Falcon Mfg., 333 F.Supp. 888, 890 (S.D.Tex.1971); Pioneer Properties v. Martin, 557 F.Supp. 1354, 1361 (D.Kan.l983); Warren v. Bokum Resources Corp., 433 F.Supp. 1360, 1364-65 (D.N.M.1977); 4 Wright & Miller, Federal Practice and Procedure, Civil § 1125 at 527-29 (1969). Since neither the 1933 Act nor the Texas long-arm statute apply, this court’s decision must rest solely upon statutory and constitutional analysis of the personal jurisdiction provided by the 1934 Act.

II. STATUTORY JURISDICTION

The Andover defendants next assert that the 1934 Act provides no statutory basis for this court to exercise personal jurisdiction since the Andover defendants’ alleged violations occurred outside Texas and they are not transacting business in, inhabiting, or found in Texas.

Section 27 of the 1934 Act establishes both personal jurisdiction and venue in any district

(1) where the defendant transacts business, inhabits, or is found; or
(2) where “any act or transaction constituting the violation occurred.”

15 U.S.C. § 78aa. Plaintiffs expressly disavow any claim that the Andover defendants “transact business” in the Southern District of Texas. And they do not allege that the Andover defendants are found in or inhabit this district. Personal jurisdiction must therefore rest upon some violation having occurred in this district.

The Andover defendants discuss at length their claim that all the acts constituting their alleged violations occurred not in Texas, but in New York, Connecticut, and Florida. That myopic fixation on the Andover defendants’ acts alone ignores the crucial point that Section 78aa vests jurisdiction in every district where any material act occurred in consumation of this allegedly fraudulent limited partnership offering. Hilgeman, 547 F.2d at 301-302; Hooper v. Mountain States Securities Corp., 282 F.2d 195, 205 (5th Cir.1960), cert. denied 365 U.S. 814, 81 S.Ct. 695, 5 L.Ed.2d 693 (1961). If an act or transaction of any one codefendant in a common securities fraud scheme satisfies Section 78aa, then personal jurisdiction and venue are proper as to all other codefendants “even in the absence of any contact or substantial contact” by those other codefendants in the forum district. Hilgeman, 547 F.2d at 302 n. 12 and cases cited therein (5th Cir.1977); accord Clement v. Pehar, 575 F.Supp. 436, 442 n. 4 (N.D.Ga.1983); Rose v. Arkansas Valley Environmental & Utility Authority, 562 F.Supp. 1180, 1211-12 and cases cited therein (W.D.Mo.1983); Carty v. Health-Chem Corp., 567 F.Supp. 1, 3 (E.D.Pa. 1982). For example, the securities fraud plaintiff in Hooper filed suit in the Middle District of Alabama against codefendants from Colorado, New York, Pennsylvania, and Texas. The Fifth Circuit held Section 78aa was satisfied as to all codefendants based on one long-distance phone call the Texas defendant had made into Alabama. Hooper, 282 F.2d 203-05. See also Rose, 562 F.Supp. at 1211-13 (particular defendant’s neither performing acts within the forum state nor knowing of other codefendants’ in-state acts may affect his liability, but is immaterial for the purposes of Section 78aa).

The requisite “act or transaction” by one codefendant in the forum district need not be an act crucial to the fraud. Hilgeman, 547 F.2d at 301; Hooper, 282 F.2d at 204. The act need only be “of material importance to the consumation of the scheme.” Hilgeman, 547 F.2d at 301; Hooper, 282 F.2d at 204-05. Courts have generally interpreted this test to require some action by a codefendant that “reaches into” the forum district to obtain investors. Clement, 575 F.Supp. at 441 and cases cited therein.

Plaintiffs here allege a common securities fraud scheme perpetrated by the Andover and other defendants. The Complaint further alleges that plaintiffs all reside in Houston, that the securities violations occurred in the Southern District of Texas, and that the partnership units were offered by a private placement memorandum and “numerous interstate telephone calls made by defendants to plaintiffs in the Southern District.” Liberally construing the Complaint in plaintiffs’ favor and accepting all reasonable conclusions drawn therefrom as we must on a motion to dismiss , this court concludes that Andover’s codefendants “reached into” and committed acts of material importance within this district. Since a sufficient “act or transaction constituting the violation” therefore occurred in this district, personal jurisdiction and venue as to the Andover defendants is proper under Section 78aa.

III. CONSTITUTIONALITY OF JURISDICTION

A. The Proper Due Process Standard

Arguing that they lack the minimum contacts with Texas required by the Due Process Clause, the Andover defendants lastly contend that this court’s asserting personal jurisdiction would violate the Fifth Amendment of the United States Constitution. Plaintiffs reply that when Congress authorizes nationwide service of process, any federal court can constitutionally exercise personal jurisdiction as long as the defendant has minimum contacts with the United States as a whole. Since Section 78aa authorizes such nationwide service and the Andover defendants fail to deny United States residency, plaintiffs argue that this court’s exercise of personal jurisdiction would not violate Due Process.

Most federal courts adopt plaintiffs’ line of reasoning. E.g., Stafford v. Briggs, 444 U.S. 527, 554, 100 S.Ct. 774, 789, 63 L.Ed.2d 1 (Stewart & Brennan, J.J., dissenting) (majority did not reach the constitutional question) (1980); Fitzsimmons v. Barton, 589 F.2d 330, 333 (7th Cir.1979) (personal jurisdiction under Section 78aa); Mariash v. Morrill, 496 F.2d 1138, 1143 (2d Cir.1974) (personal jurisdiction under Section 78aa). Indeed a relatively recent Fifth Circuit decision concerning FTC subpoena enforcement actions, FTC v. Jim Walter Corp., 651 F.2d 251 (5th Cir.1981), strongly supports plaintiffs’ contention. Invoking the Due Process Clause as defendants do here, the Florida defendant in Jim Walter argued that the United States District Court for the Northern District of Texas could not assert personal jurisdiction since the defendant had no contacts with the forum district. Id. at 255. The Fifth Circuit nonetheless upheld the district court’s exercise of personal jurisdiction given the FTC Act’s implicit authorization of nationwide service of process and the defendant’s contacts with the nation as a whole. Id. at 254-56.

The Jim Walter court reasoned that the minimum contacts requirement of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) and its progeny

arises out of the limitations inherent in concepts of sovereignty. In enacting and enforcing laws, each state exercises a sovereign function. This sovereignty may be exercised only over those who reside in the state and those who undertake activities within it. By determining when “a state may make binding a judgment in personum against an individual or corporate defendant,” the doctrine establishes when a defendant may be fairly thought to have submitted itself to that limited sovereignty.
Properly understood as defining the limits on the exercise of the sovereign function, the doctrine’s application to federal jurisdiction is unambiguous. Subject only to the regulation of Congress, each federal court exercises the “judicial Power of the United States,” not a judicial power constitutionally limited by the boundaries of a particular district____ Because the district court’s jurisdiction is ... co-extensive with the boundaries of the United States, due process requires only that a defendant in a federal suit have minimum contacts with the United States, “the sovereign that has created the court,”____
When minimum contacts exist with the relevant sovereign, due process no longer prótects a defendant from distant litigation because the location of permissible venues is a matter of sovereign prerogative ....
Defendant’s true complaint is that it is more expensive and inconvenient to defend a suit in a distant forum, but Congress has no constitutional obligation to make litigation as inexpensive as possible. Moreover, if the ability of one litigant to impose inordinate expense on another violated due process, major segments of our system of civil litigation might be rendered unconstitutional, rather than merely distressing.

Id. at 256-257 (footnotes and citations omitted); accord, Fitzsimmons, 589 F.2d at 333-334; Mariash, 496 F.2d at 1143.

More recently, however, the United States Supreme Court unequivocally rejected sovereignty as the basis for the Due Process Clause’s minimum contacts requirement and corresponding limitation of personal jurisdiction. In Insurance Corp. of Ireland v. Compagnie Des Bauxites de Guinea, 456 U.S. 694, 702, 102 S.Ct. 2099, 2104, 72 L.Ed.2d 492 (1982) (footnote omitted), the Court stated that “[t]he personal jurisdiction requirement recognizes and protects an individual liberty interest. It represents a restriction on judicial power not as a matter of sovereignty, but as a matter of individual liberty.” The minimum contacts requirement is therefore merely a method to establish whether or not the defendant’s Due Process liberty interest in fundamental “fair play and substantial justice” is satisfied. See id. at 702-03 and n. 10, 102 S.Ct. at 2104-05 and n. 10. The Fifth Circuit has accordingly recognized that Insurance Corp. of Ireland may undermine the holding of Jim Walter. Burstein v. State Bar of California, 693 F.2d 511, 515-516 n. 8 (5th Cir. 1982) ; see also DeMelo v. Toche Marine, Inc., 711 F.2d 1260, 1272 n. 16 (5th Cir. 1983) . This particular court, moreover, has previously held that Insurance Corp. of Ireland precludes a mechanical application of Jim Walter’s national-contacts test to an antitrust defendant served with nationwide process under Section 12 of the Clayton Act, 15 U.S.C. § 22. Bamford v. Hobbs, 569 F.Supp. 160, 164-166 (S.D.Tex.1983).

The Insurance Corp. of Ireland Court held that the test for personal jurisdiction under the Due Process Clause is solely a requirement that “the maintenance of the suit ... not offend ‘traditional notions of fair play and substantial justice’.” 456 U.S. at 703, 102 S.Ct. at 2105. Thus in the Fourteenth Amendment context the Fifth Circuit has held that the standard for assessing the constitutionality of a district court’s personal jurisdiction “must be simply ‘traditional notions of fair play and substantial justice’ with ‘contacts’ viewed as a way of demonstrating whether the standard is satisfied.” DeMelo, 711 F.2d at 1270; Burstein, 693 F.2d at 517-18. Insurance Corp. of Ireland compells this court to apply that same standard in the Fifth Amendment context.

There is no impelling reason to equate traditional fair play and substantial justice to minimum contacts with the nation as a whole. Bamford, 569 F.Supp. at 166. Nor, in light of modern communication and transportation and Congress’s express authorization of nationwide service, can fair play and substantial justice turn simply upon whether the Andover defendants must cross a state border to get to the Southern District of Texas. For as another district court once observed, a Portland, Maine defendant forced to litigate in Raleigh, North Carolina must cross twelve state borders, yet travels no farther than an El Paso, Texas defendant forced to litigate in Beaumont, Texas. Oxford First Corp. v. PNC Liquidating Corp., 372 F.Supp. 191, 201 (E.D.Pa.1974). Since the bounds of fairness do not necessarily run along state borders, the Fifth Amendment’s Due Process Clause does not go so far as to require that the Andover defendants have minimum contacts with the State of Texas.

Even under the stricter state contacts analysis, determining whether a particular defendant has sufficient contacts is a highly fact bound inquiry which hinges upon the specific quality and nature of that defendant’s contact with the forum state. Burstein, 693 F.2d at 520; Mississippi In terstate Express, Inc. v. Transpo, Inc., 681 F.2d 1003, 1006 (5th Cir.1982). By eschewing reliance upon contacts as a sovereignty limitation and instead defining personal jurisdiction “solely by reference to abstract notions of fair play,” 456 U.S. at 714, 102 S.Ct. at 2110 (Powell, J., concurring), Insurance Corp. of Ireland does not offer any clearer guidelines to assist courts’ introspection of their personal jurisdiction. Indeed, having here cut the Due Process test free of its national contacts anchor, Insurance Corp. of Ireland threatens to set district courts adrift when they embark upon that highly fact-bound analysis of whether asserting personal jurisdiction over a particular defendant joined by nationwide service of process satisfies the nebulous standard of “traditional notions of fair play and substantial justice.”

To set a benchmark, this court begins its analysis by noting that that Fifth Amendment Due Process standard requires the Andover defendants be treated fairly under the circumstances; that assertion of personal jurisdiction respects their liberty interests as recognized by Insurance Corp. of Ireland. Bamford, 569 F.Supp. at 166 n. 7. To this the Andover defendants argue that forcing them to litigate in Texas would not be fair, while plaintiffs of course rejoin that under the circumstances here it would be fair. To determine which party is constitutionally correct, this court will consider the five non-sovereignty related factors which courts have traditionally employed when examining personal jurisdiction under the Due Process Clause: (1) the burden imposed upon the defendants by Texas litigation, (2) defendants’ reasonable expectations and the foreseeability of Texas litigation, (3) plaintiffs’ interest in convenient and effective relief, (4) the federal judicial system’s interest in efficiently resolving controversies, and (5) Texas’s interest in having a court in Texas adjudicate this dispute.

B. Defendants’ Burden

Whether asserting personal jurisdiction is fair and substantially just turns in part upon the burden or inconvenience which distant litigation imposes upon the objecting defendant. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292-94, 100 S.Ct. 559, 564-66, 62 L.Ed.2d 490 (1980); Burstein, 693 F.2d at 521; Bamford, 569 F.Supp. at 166. The And-over defendants accordingly argue that they will “harshly feel” the “distances involved, the time required for employees to be away from the office, and the hardships inherent in litigating in a distant forum.” But since most of the burdens imposed by securities fraud litigation such as this revolve around discovery, this court’s geographic location will not greatly affect the burdens imposed upon the Andover defendants. See Oxford First Corp., 372 F.Supp. at 201-02. Moreover, if some of defendants’ employees must eventually come to Houston for trial, the time they will be taken away from the office depends more upon the length of their testimony than upon this court’s distant location. For regardless of whether trial is held 200 or 2000 miles from defendants’ offices, their witness-employees would have to travel a few hours by plane. Even if the indirect burden of impositions upon a defendant’s distant attorney is relevant, see id. at 203, that consideration does not weigh in defendants’ favor here since they have employed Dallas and Houston counsel. Finally, while a defendant’s resources relative to the plaintiff’s might influence the weight this court gives a defendant’s burden, see Mississippi Interstate Express, 681 F.2d at 1010, the Andover defendants do not allege that their businesses’ resources are less adequate than those of the plaintiffs. In light of the above discussion, this court concludes that the burden which Texas litigation would impose upon the Andover defendants does not in itself render this court's assertion of personal jurisdiction sufficiently unfair or unjust to rise to the level of a Due Process violation.

This court must therefore examine whether the other four relevant factors bolster defendants’ objection.

C. Defendants’ Reasonable Expectations

The second factor focuses upon whether a reasonable person in the defendant’s place would expect her actions to result in distant forum litigation. Burstein, 693 F.2d at 521; Bamford, 569 F.Supp. at 166. As the United States Supreme Court explained in the Fourteenth Amendment context,

the foreseeability that is critical to Due Process analysis ... is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.

World-Wide Volkswagen Corp., 444 U.S. at 297, 100 S.Ct. at 567. The Due Process Clause thereby provides our legal system a degree of predictability allowing potential defendants to structure their primary conduct with some minimal assurances as to where that conduct will and will not render them liable to suit. Id; Oswalt v. Scripto, Inc., 616 F.2d 191, 199 (5th Cir.1980).

The Fifth Circuit has therefore consistently held that assertion of personal jurisdiction does not violate traditional notions of fair play and substantial justice when the defendant’s activity outside the state has a reasonably foreseeable consequence in the state. E.g., DeMelo, 711 F.2d at 1270; Brown v. Flowers Industries, Inc., 688 F.2d 328, 333 (5th Cir.1982), cert. denied 460 U.S. 1023, 103 S.Ct. 1275, 75 L.Ed.2d 496 (1983). Mississippi Interstate Express, 681 F.2d at 1007. For example, in Oswalt the defendant manufacturer’s only contact with the United States was that it annually sold three to four million cigarette lighters to an American company pursuant to an exclusive distributorship agreement. 616 F.2d at 196-98. The U.S. District Court for the Northern District of Texas dismissed the Texas plaintiffs’ product liability action against that Japanese manufacturer on the grounds that asserting personal jurisdiction would violate the Due Process Clause. Id. at 198. The Fifth Circuit reversed, stating Due Process was satisfied since the defendant had reason to know or expect that one of its nationally distributed lighters would reach a Texas plaintiff. Id. The Andover defendants had more than mere reason to expect that their out-of-state conduct might affect some Texas resident. Since they reviewed and discussed plaintiffs’ initial loan applications, the Andover defendants actually knew that their conduct affected these particular Texas plaintiffs.

The nature of a defendant’s business also bears on whether he could reasonably expect litigation in a distant forum. Bamford, 569 F.Supp. at 166. A defendant can more reasonably expect distant litigation if its business is of a national or regional character rather than purely local. Id.; Mississippi Interstate Express, 681 F.2d at 1010 (California defendant’s national business makes it more reasonable for it to expect distant forum litigation); compare Bamstone v. Congregation Am Echad, 574 F.2d 286, 289 (5th Cir.1978) (local character of defendant Maine church’s synagogue construction makes litigation in Texas less reasonable). The Andover defendants do not claim their business is of a primarily local character. Nor, despite defendants’ assertion to the contrary, are the Andover businesses of a strictly regional character confined to the Northeast. Mr. Marchese’s Affidavit alone explains the defendants’ involvement with South Dakota, Delaware, Maine, Connecticut, Florida, Texas, and New York. That the Andover defendants’ business involves tax shelters, bank financing, and securities is also important, for a defendant’s engaging in such highly regulated activities makes it more reasonable for him to foresee having to litigate in a distant forum. Oxford First Corp., 372 F.Supp. at 202 and n. 23.

Coupling the regulated nature and multi-state scope of the Andover defendants’ business with their knowledge that their allegedly illegal conduct was affecting these particular Texas plaintiffs, this court concludes that a reasonable person in the Andover defendants shoes would have anticipated being haled into a Texas court. The Andover defendants simply did not structure their conduct to gain the Due Process Clause’s minimal assurance that they would not be liable to suits in Texas. This court accordingly finds that the second factor — one’s reasonable expectation of distant forum litigation — does not bolster the Andover defendants’ claim that this court’s asserting personal jurisdiction would violate traditional notions of fair play and substantial justice.

D. Plaintiffs’ Interest

The third factor this court must consider is plaintiffs’ interest in convenient and effective relief. World-Wide Volkswagen Corp., 444 U.S. at 292, 100 S.Ct. at 564; Burstein, 693 F.2d at 521; Bamford, 569 F.Supp. at 166. Thus in reversing the district court’s refusal to exercise personal jurisdiction over an out-of-state defendant in DeMelo, the Fifth Circuit emphasized the practical importance to the plaintiff of being allowed to join all parties to that products liability action in one suit. 711 F.2d at 1272; see also Lapeyrouse v. Texaco, Inc., 693 F.2d 581, 588 (5th Cir.1982) (finding personal jurisdiction over an objecting out-of-state defendant because, inter alia, Texas was a convenient and effective forum for plaintiffs to get relief). Allowing the plaintiff to join all defendants in one action is especially important in modern multi-party securities litigation. See Oxford First Corp., 372 F.Supp. at 201. Section 78aa, moreover, represents a congressional policy to guarantee security plaintiffs’ liberal choice of forum. Leroy v. GWU Corp., 443 U.S. 173, 188, 99 S.Ct. 2710, 2719, 61 L.Ed.2d 464 (White, Brennan, and Marshall, JJ., dissenting) (1979); Carpenter v. Hall, 352 F.Supp. 806, 809-10 (S.D.Tex. 1972); Ritter v. Zuspan, 451 F.Supp. 926, 928 (E.D.Mich.1978).

The Andover defendants argue that plaintiffs could sue them in Connecticut. But as already noted in this opinion, plaintiffs all reside in Houston, and many of the primary securities violations at issue occurred within this district. Defendants in this suit include individuals residing in Florida, Pennsylvania, New'York, Connecticut, and Texas, entities formed in or with a principle place of business in Florida, Colorado, South Dakota, Maine, and Connecticut, and a federally chartered savings and loan association. The bulk of these defendants are already before this court. Forcing plaintiffs to pursue a separate second suit in Connecticut to fully remedy this one securities fraud scheme would not be convenient and effective. Since the Southern District of Texas is one of if not the most convenient and effective forums in which plaintiffs could seek relief, the third factor weighs in favor of this court’s exercising personal jurisdiction over the And-over defendants.

E. Federal Judicial System’s Interest

The fourth relevant factor is closely tied to the third: the judicial system’s interest in the efficient resolution of controversies. World-Wide Volkswagen Corp., 444 U.S. at 292, 100 S.Ct. at 564; Burstein, 693 F.2d at 521; Bamford, 569 F.Supp. at 166. The Andover defendants’ conduct was intertwined with that of their codefendants: The Complaint sets forth various interactions between the Andover defendants and codefendants County Federal Savings & Loan, Botchman, Galanis, Equine, and Equine’s general partners. It further avers that the Andover defendants acted in an employment or agency relationship with Equine and the Equine general partners. The Complaint concludes that the Andover defendants’ participation in this allegedly fraudulent scheme renders them liable for aiding and abetting sundry violations of federal and Texas securities acts, breaching fiduciary duties, and negligence. It would be more efficient to resolve this dispute in one proceeding rather than two. See, e.g., Oxford First Corp., 372 F.Supp. at 202; Lapeyrouse, 693 F.2d at 589. For the reasons discussed above concerning plaintiffs’ interest in one effective and convenient forum, this court concludes that it would promote the federal courts’ interest in judicial economy to exercise personal jurisdiction over the Andover defendants.

F. Texas’s Interest

The fifth factor this court must assess is the forum state’s interest in adjudicating the particular dispute at bar. World-Wide Volkswagen Corp., 444 U.S. at 292, 100 S.Ct. at 564; Burstein, 693 F.2d at 521; Bamford, 569 F.Supp. at 166. For example, in DeMelo the defendant paint manufacturer’s only apparent contact with Mississippi was its shipping products into Mississippi which it had sold to Mississippi entities. 711 F.2d at 1271. The District Court for the Southern District of Mississippi dismissed that New York manufacturer for want of personal jurisdiction on the ground that that defendant lacked the minimum contacts with Mississippi required by the Due Process Clause. Id. at 1262. In reversing the district court, the Fifth Circuit noted as relevant Mississippi’s exceptionally strong interest in providing its residents a forum to redress injuries caused by defective products shipped into Mississippi, and thus stated that the plaintiffs’ being Mississippi residents was alone significant. Id. at 1272. Similarly here, Texas has ah exceptionally strong interest in providing its residents a forum to redress injuries caused by fraudulent securities schemes which reach into Texas. In this regard, exercising personal jurisdiction here is further supported by Texas’s having manifested through extensive state regulation its strong interest in protecting defrauded securities buyers. Cf. Burstein, 693 F.2d at 519 and 522 (distinguishing the Supreme Court’s approval of personal jurisdiction over the out-of-state insurance company in McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957), in part by explaining that insurance transactions are highly state regulated, and thus states have a particularly strong interest in resident victims of insurance fraud). Texas’s strong interest in providing resident victims of securities fraud a forum for relief therefore weighs in favor of this court, sitting in Texas, exercising personal jurisdiction over the Andover defendants.

G. Summation

This court has concluded that Texas litigation would not impose an impermissible burden upon the Andover defendants, and that a person in their place would have reasonably expected or foreseen Texas litigation. Thus Due Process’s fairness concerns do not weigh greatly against this court’s exercising personal jurisdiction. Moreover, the additional Due Process considerations of plaintiffs’ interest in convenient and effective relief, the courts’ interest in judicial economy, and Texas’s interest in providing a forum for this particular dispute, all weigh in favor of this court’s asserting personal jurisdiction. This court therefore decides that its exercising personal jurisdiction over the Andover defendants would not violate the Due Process Clause of the Fifth Amendment.

IV. CONCLUSION

For the reasons given in the Memorandum and Order it is hereby ORDERED, ADJUDGED, and DECREED that the motion of defendants Andover Funding Limited and Andover Financial Corporation should be, and the same is, DENIED.

      . Plaintiffs' First Amended Complaint ("Complaint”), ¶ 3.

      . Affidavit for the Andover defendants of Anthony J. Márchese (“Affidavit”), ¶ 3.

      . Plaintiffs' brief in support of their response to defendants Andover Funding, Ltd. and Andover Financial Corp.'s motion to dismiss ("Plaintiffs’ Brief"), page 4.

      . See Complaint ¶¶ 13, 14.

      . Brief in support of motion to dismiss pursuant to Rule 12(b)(2), Federal Rules of Civil Procedure (“Defendants’ Brief”), pages 13-19.

      . See Complaint ¶¶ 19-53.

      . Complaint ¶¶ 3, 2, 20.

      . That properly states the general standard for this court’s treatment of dismissal motions. 5 Wright & Miller, Federal Practice and Procedure, Civil § 1357 (1969). More specifically in this particular context, this court notes that plaintiffs bear the burden of establishing this court’s personal jurisdiction over the Andover defendants. But since this court disposes of defendants’ motion upon the basis of the pleadings and defendants’ affidavit rather than upon any evidenciary hearing, plaintiffs meet their burden if they present a prima facia case for personal jurisdiction. DeMelo v. Toche Marine, Inc., 711 F.2d 1260, 1270-71 (5th Cir.1983). This court must take as true the allegations in plaintiffs' Complaint, except as controverted by the defendants’ affidavit of Mr. Marchese. Brown v. Flowers Industries, Inc., 688 F.2d 328, 332 (5th Cir.1982), cert. denied 460 U.S. 1023, 103 S.Ct. 1275, 75 L.Ed.2d 496 (1983). Finally, this court must resolve any conflicts between the Complaint and defendants’ affidavit in favor of establishing personal jurisdiction. Id.

      . This court recognizes that district courts in other circuits have continued to apply the "national-contacts" test to defendants’ personal jurisdiction objections under Section 78aa. E.g., Clement v. Pehar, 575 F.Supp. 436, 438-39 (N.D. Ga.1983); Taylor v. Bear Stearns & Co., 572 F.Supp. 667, 679-80 (N.D.Ga.1983); Pioneer Properties Inc. v. Martin, 557 F.Supp. 1354, 1358 n. 6 (D.Kan.1983). This court believes, however, that those decisions overlook the fundamental change that Insurance Corp. of Ireland made in the interests protected by Due Process minimum contacts analysis.

      . This court must explain its citation of Oxford First Corp. as authority. The primary thrust of that opinion was that the Due Process Clause protected defendants not merely from overreaching limited sovereigns, but from unfairly burdensome distant litigation. The Fifth Circuit has rejected consideration of the defendant's litigation burdens in this context, see supra text at pages 313-314, and has thus expressly disapproved of Oxford First Corp. Jim Walter, 651 F.2d at 256 n. 9. On the other hand, the U.S. Supreme Court more recently rejected the sovereignty-based consideration and emphasized fairness alone instead. See supra text concerning Insurance Corporation of Ireland at pages 313-314. This court accordingly concludes that Insurance Corp. of Ireland breathes new life into the reasoning and authority of Oxford First Corp.

      . Defendants’ Brief, page 22; Plaintiffs’ Brief, page 8.

      . To this list could be added the relative equities and convenience between the parties. See DeMelo, 711 F.2d at 1270; Brown, 688 F.2d at 333; Pioneer Properties Inc., 557 F.Supp. at 1361. But that consideration merely encapsulates the five factors this court will evaluate.

      . Defendants’ Brief, page 21.

      . See Defendants’ Brief, page 27.

      . See Affidavit ¶¶ 15 and 17.

      . Defendants' Brief, page 3.

      . Andover Funding Limited is a South Dakota general partnership with a Delaware corporation as its general partner. Affidavit ¶ 3. And-over Financial Corporation is a Maine corporation with its principal place of business in Connecticut. Id. These entities were formed to finance tax sheltered investments, and they do much business with Delaware limited partnerships. Id. ¶¶ 3 and 4. The Andover defendants located a potential financing source in Connecticut for plaintiffs’ investment in the Florida limited partnership at issue here, id. ¶¶ 10 and 22, reviewed the loan applications for the Texas plaintiffs here, id. ¶ 15, and were involved in arranging a New York meeting to discuss the Texas plaintiffs’ inability to qualify for unsecured financing, id. ¶¶ 16-18.

      . Id. ¶ 4.

      . See Id. ¶¶ 4, 8, 10, 22.

      . The Andover businesses were involved in this transaction and, as this court’s Memorandum and Order of September 13, 1984 found, this transaction clearly involved securities.

      . With the notable exception of Oxford First Corp. v. PNC Liquidating Corp., 372 F.Supp. 191 (E.D.Pa.1974), federal decisions have applied the "national-contact” test to American defendants objecting to personal jurisdiction under Section 78aa. Moreover Oxford First Corp. has been expressly rejected by the Fifth Circuit in Jim Walter, 651 F.2d at 256 n. 9; accord e.g., Clement, 575 F.Supp. at 439 (decided after Insurance Corp. of Ireland); Fitzsimmons, 589 F.2d at 334. Given the Andover defendants’ abundant contacts with the nation as a whole and their securities involvement here, they should have reasonably anticipated being haled into any U.S. District Court in the country. This court does not accord that aspect of foreseeability alone great weight, however, for to do so would allow Congress to bootstrap nationwide service over the Due Process hurdle of defendants' reasonable expectations.

      . Defendants’ Brief, page 22.

      . Complaint ¶¶ 5-18; Affidavit ¶ 3.

      . See e.g. this court's orders of May 22 and September 13, 1984 denying motions to dismiss by defendants Kurzman, Reardon, Popick, Po-pick Funding Inc., Jebrock, and Lewis, and the answers of defendants County Federal Savings & Loan Association, Tanski, and Fox & Co.

      . Relations and conduct between the Andover defendants and other defendants are detailed in Complaint ¶¶ 23-25, 33-35, 38, 49, 56, 59, 61, 64, 67, 71, 75, and Affidavit ¶¶7-22.


source: Caselaw Access Project

author: WEBER, District Judge.

license: Public Domain

text:
    K. Killings BEY and Thomas E. Christian, Jr., Plaintiffs, v. SCHNEIDER SHEET METAL, INC., Defendant.
    Civ. A. No. 84-872.
    United States District Court, W.D. Pennsylvania.
    Oct. 23, 1984.

      John Meyer, Pittsburgh, Pa., for plaintiffs.
    William Getty, Pittsburgh, Pa., for defendant.
   OPINION

WEBER, District Judge.

This matter is before the court on defendant's motion for summary judgment.

This is a complaint alleging race discrimination in employment by defendant based on 42 U.S.C. 1981 and Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e. Plaintiffs are black males who were employed by defendant pursuant to an agreement between the Sheet Metal Workers’ Local Union No. 12, and SMACNA of Western Pennsylvania, of which the defendant is a member. In November 1982, plaintiffs were laid off due to “lack of work”. After their layoff, plaintiffs were assured by certain of the defendant’s employees that they would be called back when work became available.

On or about July 20, 1983, one or both plaintiffs contacted defendant's field supervisor, Ed McCafferty, and were told that no alternate work was then available. Shortly thereafter, plaintiffs learned that alternative work had become available and that white employees, members of Local 12, had been assigned to perform that work.

On December 14, 1983, plaintiffs filed charges with the Equal Employment Opportunity Commission (EEOC) alleging that they were laid off by defendant on July 20, 1983, and alleging inter alia that race was the only factor in defendant’s treatment of them. By letter dated December 15, 1983, plaintiffs- requested that the EEOC issue Notices of Right To Sue. On December 21, 1983, the EEOC forwarded a copy of each of plaintiffs’ charges to the Pennsylvania Human Relations Commission (PHRC) along with a Charge Transmittal Form 212-A. This form was subsequently stamped with the signature of Neil Sullivan, Assistant to the Director of Compliance of the PHRC, and returned by the PHRC to the EEOC and received by them January 3, 1984. On January 11, 1984, twenty-seven days after initial receipt of the charges, the EEOC issued Notices of Right to Sue to the plaintiffs. On April 19, 1984, plaintiffs filed their complaint in this court alleging discrimination.

Defendant’s motion for summary judgment is supported by affidavits of Ed McCafferty, Supervisor of Schneider Sheet Metal, Eugene Reid, Supervising EEOC Opportunity Specialist in Pittsburgh, and Neil Sullivan, Director of Compliance of the PHRC. Plaintiffs oppose the motion supported by the individual affidavit of each plaintiff and briefs.

Defendant argues that the motion should be granted for the following reasons: (a) Plaintiffs failed to file timely charges with either the EEOC or the PHRC; (b) The EEOC failed to defer to the PHRC; (c) The EEOC failed to investigate and conciliate prior to issuance of a Notice of Right to Sue; and (d) Plaintiffs failed to plead specific facts to set forth a Section 1981 cause of action and failed to allege intent to discriminate.

A. FAILURE TO FILE TIMELY CHARGES.

Defendant points out that although plaintiffs allege in their complaint that they were laid off on July 20, 1983, it is clearly established by the affidavit of Ed McCafferty, the defendant’s field supervisor, that they were actually laid off on November 16,1982, and November 30,1982 respectively, and therefore their charges filed with the EEOC on December 14, 1983 were time barred. The affidavits of plaintiffs Bey and Christian support defendant’s assertion as to die date of lay-off which was not clearly set forth in either the complaint or the EEOC filing. Though the court takes note of this discrepancy in plaintiffs’ pleadings it does not find it to be fatal to plaintiffs’ claims to have filed timely charges under Title VII. Plaintiffs’ “EEOC charges should be liberally construed since they are prepared by laymen, generally without the assistance of counsel.” Wetzel v. Liberty Mutual Ins. Co., 511 F.2d 199, 202 (3d Cir.1975); Love v. Pullman, 404 U.S. 522, 527, 92 S.Ct. 616, 619, 30 L.Ed.2d 679 (1972). Furthermore, Rule 15(a) states that leave to amend the complaint should be freely given when justice so requires. Here, the necessary changes would be slight, correcting details of the original factual basis for plaintiffs’ cause of action. Defendant has received sufficient notice of the claim of discriminatory recall and would not be prejudiced by such an amendment. Therefore plaintiffs will be given leave to amend their complaint to correctly state the facts on which their cause of action lies. Such amendment would facilitate a proper decision on the merits. See, Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957). Having decided that such amendment is proper we must next determine whether on these facts plaintiffs had made the timely filing necessary for a Title VII claim.

Under Section 706(e) the time for filing runs from the time “the alleged unlawful employment practice occurred ...” 42 U.S.C. 2000e-5(e). If, as plaintiffs have alleged in their brief, defendant, subsequent to a general layoff, classified former employees in such a way as to deprive blacks of employment opportunities solely because of their race, then the time for filing does not run until the last date that such unlawful practices occurred. It is not the layoff itself of which plaintiffs complain but the selective discrimination against blacks in the recall process. See, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

Plaintiffs do not state the dates on which such discriminatory practices occurred but rather urged the court to adopt the “apparency test” adopted in two Fifth Circuit cases. Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924 (5th Cir.1975), and Tucker v. United Parcel Service, 657 F.2d 724 (5th Cir.1981). In Reeb, the Court of Appeals held that the time for filing charges of employment discrimination with the EEOC did not begin to run until facts that would support a charge of discrimination were apparent or should have been apparent to a person with reasonably prudent regard for his rights similarly situated to the plaintiff. The facts there showed that Mrs. Reeb was notified on September 24, 1969 that her employment would be terminated due to “limitation of funds”, (p. 926), but learned on April 21, 1970 that her former position had been refilled on November 10, 1969 by an allegedly less qualified male. She immediately filed charges with the EEOC. The filing was timely.

We must view the facts in the light most favorable to the plaintiffs as the non-moving parties in this summary judgment action. Plaintiffs aver that they were laid off due to “lack of funds”, and that as late as July 20, 1983, defendant’s field supervisor told plaintiffs that no alternate work was available and that they would be recalled when openings became available. Shortly thereafter plaintiffs learned that alternate work had become available and that white employees had been recalled. On December 14, 1984, plaintiffs filed charges with the EEOC.

The doctrine of equitable tolling has been accepted by many courts. See, Hart v. Baker Chemical Co., 598 F.2d 829 (3rd Cir.1979), (Title VII time limitation subject to equitable modification); Aljadir v. University of Pennsylvania, 547 F.Supp. 667 (E.D.Pa.1982). Plaintiffs allege that defendant deceived them through misleading statements or concealment thereby preventing them from discovering the discrimination. Defendant is not prejudiced by the delay. These are factors that warrant application of the equitable tolling doctrine.

On July 20, 1983, or shortly thereafter, when plaintiffs learned of others being recalled, facts that would support a charge of discrimination should have been apparent. The plaintiffs’ charges were initially filed with the EEOC on December 14, 1983, and were referred back to the EEOC by the Pennsylvania Human Relations Commission on January 3, 1984. Although this filing was not within the ninety day statute of limitations required by the Pennsylvania Human Relations Act, 43 Pa.Stat. Ann. § 959(g) (1984 Supp.), plaintiffs “federal statutory rights [cannot] be foreclosed by ... failure to file within the significantly shorter state limitation period.” (cites omitted). Vuksta v. Bethlehem Steel Corp., 540 F.Supp. 1276, 1279, fn. 9, (E.D. Pa.1982), affd 707 F.2d 1405 (3rd Cir.1983). Therefore since the charges were filed within the 180 day federal limitations period, they are timely for VII purposes.

B. EEOC’S FAILURE TO DEFER TO THE STATE AGENCY.

Defendant next complains that the EEOC failed to defer to the PHRC and that this court lacks subject matter jurisdiction as a result. Defendant supports this argument by attacking the Worksharing Agreement between the EEOC and the PHRC, claiming that under paragraph 111(b) of the Worksharing Agreement the PHRC has waived the rights granted to it under Section 706(c) of Title VII to have an exclusive opportunity for 60 days to resolve Title VII charges originally filed with the EEOC.

We do not believe that the validity of the Worksharing Agreement is properly at issue in this ease. Even if there were no Worksharing Agreement we assume that the PHRC would have disposed of plaintiffs’ charges in a perfunctory manner since the 90 day state statute of limitations had passed prior to the time that the PHRC had received the plaintiffs’ charges. However, regardless of the reasons behind the PHRC’s perfunctory handling and return of plaintiffs’ charges, we find that the EEOC did technically defer to the state agency. The principal concern of Section 2000e-5(e) is that the state and local agencies not be deprived of their power to act by the federal government. Thus, “[v]irtually anything that the state agency does of its own initiative in order to be rid of a case may be sufficient to pass jurisdiction on to the EEOC via Section 2000e-5(c) as long as the state agency had an opportunity for some period, however brief, to dispose of the matter.” Lombardi v. Margolis Wine and Spirits, Inc., 465 F.Supp. 99, 101 (E.D. Pa.1979). See also, Bell v. Wyeth Laboratories, Inc., 448 F.Supp. 133, 135 (E.D.Pa. 1978). “Title VII does not prohibit states from waiving the procedure for resort to state remedies.” Douglas v. Red Carpet Corp. of America, 538 F.Supp. 1135, 1139 (E.D.Pa.1982) (assuming validity of a technical deferral under the Worksharing Agreement).

Albano v. General Adjustment Bureau, 478 F.Supp. 1209 (S.D.N.Y.1979), cited by defendant, is not applicable to the facts here. There the court found that plaintiff’s refusal to file a complaint with the state agency and his refusal to cooperate with it led the state agency to believe that it was without jurisdiction, (p. 1215). The court assumed that a technical deferral such as made here would have been sufficient to meet the statutory requirements of deferral by the EEOC. (p. 1214).

C. SUBJECT MATTER JURISDICTION

Defendant claims- that this court lacks subject matter jurisdiction because the EEOC in accordance with plaintiffs’ request failed to investigate and conciliate plaintiffs’ charges for 180 days prior to the issuance of a Notice of Right to Sue. Defendant supports this argument with the wording of Section 2000e-5(f)(l) and a reference in Moteles v. University of Pennsylvania, 730 F.2d 913 (3rd Cir.1984) to Spencer v. Banco Real, S.A., 87 F.R.D. 739 (S.D.N.Y.1980), as well as selected portions of a section-by-section analysis of the bill presented to the Senate with the Conference Report. (Defendant’s brief at pp. 19, 20). Defendant provides us with no actual authority for the legal proposition that it asks us to adopt.

We are inclined instead to agree with the court in Commonwealth of Pennsylvania v. Local Union 542, International Union of Operating Engineers, 469 F.Supp. 329, 339, 395 (E.D.Pa.1978). There the court adopted the position that the Commission’s failure to attempt conciliation is not a jurisdictional bar to an individual’s action on his own behalf, since the individual cannot be charged with the Commission’s failure to execute its statutory duties. See also, Patterson v. American Tobacco Co., 535 F.2d 257 (4th Cir.1976). “Plaintiffs are not to be barred from Title VII action due to possible error [or] neglect ... by EEOC ...”. Cacchione v. Erie Technological Products, Inc., 526 F.Supp. 272 (W.D.Pa.1971). Other courts have also adopted this position. See Bryant v. California Brewer’s Assoc., 585 F.2d 421, 425 (9th Cir.1978); Saulsbury v. Wismer & Becker, Inc., 644 F.2d 1251, 1257 (9th Cir.1980); Milner v. National School of Health and Technology, 409 F.Supp. 1389, 1392 (E.D.Pa.1976). We believe that the purpose of the 180 day period is to protect the individual from extended administrative proceedings or bureaucratic backlogs preventing legitimate actions, and not to establish a strict jurisdictional requirement. We, therefore, do not find that the EEOC’s issuance of a Right to Sue Letter 27 days after initial receipt of the charges at plaintiffs’ request, deprives this court of subject matter jurisdiction.

D. FAILURE TO SPECIFICALLY PLEAD A SECTION 1981 CAUSE OF ACTION.

Defendant complains that plaintiffs have failed to plead specifically the facts on which plaintiffs base their 42 U.S.C. 1981 cause of action. Defendant’s counsel, like many similarly situated, pumps too much air into the judicial requirement that civil rights actions should be pleaded with particularity. The result of such generalized statements has been to flood the district courts with garbage-can complaints with their appended scraps of newspaper clippings, magazine articles, correspondence, and an unbelievable variety of other unnecessary and irrelevant matters. Fed.R. Civ.P. 8 is still the rule of federal procedure and a civil rights complaint, like any other complaint, should not violate it. While many civil rights complaints were poorly drafted in that they did not tell when, where and how the paths of plaintiff and defendant crossed, and were thus deemed insufficient, the present amended complaint is not. The plaintiffs’ complaint as a whole, including its exhibits, has identified the alleged discriminatory activity, the time, the place and the actors. This is sufficient although we would prefer that these specifics be contained in the body of the complaint, along with an express allegation of intent to discriminate. Since we have allowed leave to amend in other respects, the complaint may be further improved by such an amendment. Accordingly, defendant’s Motion for Summary Judgment is denied.


author: JOINER, District Judge.

text:
    ZENTEK CORPORATION, Plaintiff, v. INTERNAL REVENUE SERVICE, and Roscoe Egger, Commissioner of Internal Revenue, Defendants.
    Civ. A. No. 83CV-6449-AA.
    United States District Court, E.D. Michigan, S.D.
    Oct. 23, 1984.
    David H. Raaflaub, Ann Arbor, Mich., for plaintiff.
    L. Michael Wicks, Asst. U.S. Atty., Detroit, Mich., Stuart M. Fischbein, Tax Div., U.S. Dept, of Justice, Washington, D.C., for defendants.
   ORDER

JOINER, District Judge.

This case is before the court on plaintiff’s motion for attorney’s fees incurred in connection with this action to obtain certain documents pursuant to the Freedom of Information Act, 5 U.S.C. § 552(a). For the reasons stated herein, the motion is denied.

FACTS

The facts as presented by the government’s response to this motion, and not controverted by plaintiff, indicate that plaintiff initially filed two FOIA requests on the Internal Revenue Service, one at the Cincinnati Service Center on October 26, 1983, and one on the Detroit District Office on October 19. Both requests sought essentially all documents, including tax returns and all supporting materials, relating to plaintiff that were in the possession of those two offices.

. The Cincinnati office responded by letter dated November 4 that plaintiff should describe his request with greater specificity. By letter dated November 2, the Detroit office requested a 30-day extension of time in which to process the request, due to a backlog of similar FOIA requests. Plaintiff subsequently filed this action on November 15.

The Detroit office subsequently located documents that were responsive to plaintiff’s request, and notified plaintiff by letter dated December 1 that it would forward the papers upon payment of the reproduction costs. Plaintiff paid these costs, and the I.R.S. sent the documents. The Cincinnati office forwarded a single document, plaintiff’s 1982 tax return, to plaintiff on December 14.

At a status conference on this case held on January 26 of this year, plaintiff’s attorney stated to the court that the Cincinnati office had not forwarded all the documents that plaintiff sought. That office subsequently located other responsive documents and forwarded them to plaintiff. Plaintiff’s attorney subsequently negotiated for the disclosure of certain other documents, apparently in the possession of the Social Security Administration in Baltimore, Maryland. The parties entered into a stipulation of dismissal of this case, dated March 12. The stipulation expressly permitted the plaintiff to move for attorney’s fees, as the parties were unable to reach an accord on this matter.

Plaintiff contends that it did not bring this motion until August 3 of this year, some 5V2 months after the case was dismissed, because it was still seeking an amicable resolution of the issue of attorney’s fees until that time. Yet plaintiff does not deny the government’s contention that the last discussion that took place between counsel for the opposing parties on the attorney’s fees issue occurred in April.

DISCUSSION

In White v. New Hampshire Department of Employment Security, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982), the Supreme Court concluded that a motion for attorney’s fees brought pursuant to 42 U.S.C. § 1988 did not constitute a motion to “alter or amend the judgment” and was not therefore required to be brought within 10 days of the entry of judgment. In footnote 17 of the opinion, the Court noted that “the district courts would be free to adopt local rules establishing standards for timely filing of requests for costs, even if attorney’s fees were so treated.”

Pursuant to this invitation, this court adopted Local Rule 17(Z), which provides as follows:

1. Application for Attorney Fees
Except as otherwise provided by statute or by order of the Court, an application for attorney fees by a prevailing party together with a supporting memorandum shall be filed within 30 days after the entry of judgment. Failure to file the application within the time specified shall be considered a waiver of the right to attorney fees.

The rule, by its terms, applies to any application for attorney’s fees, except as otherwise provided by statute or by order of the Court.

The request for attorney’s fees in this case is brought pursuant to 5 U.S.C. § 552(a)(4)(E), which provides as follows:

The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed.

The Freedom of Information Act does not establish time limits in which motions for attorney’s fees brought under § 552(a)(4)(E) must be brought, so there is no statute that would otherwise circumscribe the operation of Local Rule 11(1) in this case.

The court concludes that Local Rule 11(1) is fully applicable to a request for attorney’s fees brought under the FOIA. Although the recovery of attorney’s fees may be an important incentive to the bringing of FOIA enforcement actions by private plaintiffs, the availability of such fees is deserving of no greater solicitude than of those incurred in bringing an action for the vindication of federal civil rights. Because Local Rule 11(1) clearly applies to motions brought under 42 U.S.C. § 1988, the court concludes that it should apply to those brought pursuant to 5 U.S.C. § 552(a)(4)(E) as well.

In this case, plaintiff failed to bring this motion within 30 days of the entry of judgment. Even if the court were willing to toll the running of Local Rule 11(1) while an FOIA plaintiff made a good-faith effort to reach an amicable settlement of the attorney’s fee issue, such negotiations ended in this case more than one hundred days prior to the bringing of this motion. For the foregoing reasons, the motion is untimely under the Local Rule, and is denied for that reason.

SO ORDERED.

      . That statute provides in pertinent part as follows:
      In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.