author: HILLMAN, District Judge.

text:
    Mariano J. HUNTER, Plaintiff, v. Ted KOEHLER and Tom C. Laitinen, Defendants.
    No. M83-329 CA.
    United States District Court, W.D. Michigan, N.D.
    Sept. 12, 1984.
    Mariano J. Hunter, pro per.
    Edgar L. Church, Jr. & Louis J. Porter, Asst. Attys. Gen., Lansing, Mich., for defendants.
   OPINION

HILLMAN, District Judge.

This is a civil rights action filed pursuant to 42 U.S.C. § 1983 by an inmate at the Marquette Branch Prison against the warden, a counselor, and “mailroom personnel” at the prison.

In a somewhat rambling and confusing complaint and amended complaint, plaintiff alleges that the prison mailroom rejected a catalog entitled “Fantasy Images” and certain snapshots of nudes without an administrative hearing. He also alleges that the prison at Jackson has a more liberal policy than the prison at Marquette regarding the receipt of such material. He seeks declaratory and injunctive relief for this alleged violation of his constitutional rights under the First and Fourteenth Amendments.

The defendants have filed an alternate motion to dismiss and for summary judgment. The motions are supported by a copy of the applicable policy directive regarding the prison mail policy, and copies of various records regarding an administrative hearing held with respect to the rejection of the materials here in question. None of these supporting documents (Exhibits A through H) have been controverted.

It is noted at the outset that plaintiff’s allegation that he had been denied an administrative hearing after having requested one is both misleading and deceptive. The pertinent facts as evidenced by the uncontroverted documents are as follows:

1. On October 3, 1983, the warden wrote to the plaintiff with respect to the catalog as follows:

You have received a catalog entitled Fantasy Images. Unfortunately, this catalog seems to violate policy because it contains photographs of homosexual activity and acts of gross indecency. I intend to recommend that it be placed on the restricted publication list. However, you will have until 10/11/83 to submit your reasons why this action should not be taken (Exhibit A).

2. Certain nude snapshots mailed to plaintiff were also rejected on the ground that prisoners are not allowed access to nude snapshots taken with home-type cameras as specified in the Prisoner’s Guide Book (Exhibits D and E).

3. On October 3,1983, plaintiff wrote to the Warden and requested a hearing with respect to the rejected material (Exhibit B).

4. However, by October 7, 1983, plaintiff had changed his mind. He wrote to the Warden on that date as follows:

In the Matter of the Restricted Publication topic My letter of 10/3/1983 discussed, I would respectfully request the matter to remain at what-ever descretionary opinions you may have.
I do not wish to try to change whatever policies you have set for the institution, as I like it here, and however restrictive some of the Policies may seem in comparison to Jackson’s. I do realize that Men, circumstances and other considerations I may not presently be aware of. Have, persuaded your thoughts, in setting policy according to the Institution.
I would however, wish an Administrative Meeting with you in regards to the catalog. If only to express lightly my apologies for taking rather abrupt offense to denial of receiving the catalog.
# * * ^ * #
Generally, with all the better things I now appreciate, I am not going to bring a Frivolous Matter into a Federal Case. Please consider the Matter Closed and Finished .. I Would still appreciate a brief meeting with you, to express personally my apology.
You have done a good job here, and considering the type of men that you must deal with inside the walls. I now see reason for your restricting certain literature.
* * # * # #
As for myself, I haven’t that long to go, so am not interested in applying my time to something so trivial. (Exhibit C)

5. On December 5, 1983, plaintiff filed the present action, claiming, among other things, that his rights were violated because he had not been given an administrative hearing.

6. On February 6, 1984, the Hearing Administrator for the Michigan Department of Corrections wrote to the plaintiff as follows:

You have recently filed a lawsuit against the Department of Corrections regarding the rejection by the institution of certain nude photographs and a catalog that is apparently entitled “Fantasy Images.” In that lawsuit, you allege, among other things, that you were not given hearings, as required by policy, on the rejection of these items. Although it was indicated in your correspondence with the institution at the time these items were rejected that you did not want a hearing, if you have changed your mind on that point and wish to have a hearing as to whether or not these rejections were proper, the Department is prepared to offer you a hearing at this time.
The hearing will be conducted to determine whether or not it was appropriate under policy for the nude photographs which you received to be rejected, under the provision on page 12(a) of the Prisoner Guidebook which states that prisoners will not be allowed to have “nude snapshots taken with home-type cameras.” The hearing will also decide whether or not the “Fantasy Images” catalog was appropriately rejected under Department policy directive PD-BCF-63.03, which states that prisoners are not allowed to have published material which shows acts of homosexuality, sadism, violent sexual practices or unlawful sexual behavior.
Please let me know immediately if you would like to have a hearing on the rejection of these items. If so, I will contact the institution to have them set up the hearing. (Exhibit G).

7. On February 14, 1984, plaintiff wrote to the Hearing Administrator to request a hearing (Exhibit H).

8. On March 7, 1984, plaintiff was served with a Notice of Intent to Conduct an Administrative Hearing, which advised him of the purpose of the hearing as follows:

The institution has received an illustrated catalog of pornographic films and other materials entitled “Fantasy Images,” which is addressed to you. You are not allowed to have this catalog in your possession as it violates PD-BCF-63.03, in that the illustrations show acts of homosexuality and unlawful sexual behavior. In addition, you have been sent nude photographs from Jackson Photo Center, as indicated on the attached Notices of Package Rejection, which you are not allowed to receive, as they are contraband. It is stated on page 12a of the Prisoner Guidebook that prisoAers are not permitted to possess nude photographs taken with home-type camera. The intent of this prohibition is to prevent prisoners from receiving nude photographs of wives or girlfriends, as such photos could cause serious disruption between prisoners if they are seen by someone other than the prisoner to whom they were sent. Thus, only nude photos which have been published for commercial use are allowed. As the photos which were sent to you are not of a commercial nature, you will not be allowed to receive them. (Pleading # 14).

9. The administrative hearing was held on April 19, 1984. The Hearing Report states:

RESIDENT’S STATEMENT:
Resident Hunter was seen on 4-19-84 and stated that he already has the photos and that they are threatening to take them away from him. Resident presented the photo’s at the hearing along with a copy of the above mentioned catalog that he already had.
DISPOSITION:
The catalogs from Fantasy Images as shown by the resident does show acts of homosexuality on the last page and is excluded under policy PD-BCF-63.03. It is noted that the resident already has one copy of the catalog and that this finding pertains only to the catalog in the mail room that has not yet been given to the resident.
As to the photos the resident already has them and there is no possibility of rejecting them at this time. If the institution wishes to conviscate(sic) them they need to do so with a new notice of intent. (Pleading # 14).

Plaintiff's complaint, in essence, is an attack on the validity of the Michigan Department of Corrections Policy Directive PD-BCF-63.03, “Prisoner Mail Policy,” dated June 6, 1983, and its application to a catalog depicting acts of homosexuality and to certain snapshots of nudes taken with a home-type camera. The policy directive provides in pertinent part:

Whenever a first class letter or a package addressed to a prisoner is believed to be in violation of institutional mail rules, the prisoner will be advised as to the reason the item will not be delivered. The prisoner may request an administrative hearing to be held according to procedures set forth in Administrative Rule 791.3310, and may appeal nonacceptance of the item through the established prisoner grievance procedure. Institutions shall attempt to retain disputed items for a reasonable period to allow the prisoner to pursue administrative appeal processes.
Prisoners shall not be given access to the following items and publications which are considered disruptive to institutional order and/or security:
******
(3) material describing or showing acts of homosexuality, sadism, violent sexual practices and/or unlawful sexual behavior.

The policy with respect to nude snapshots is set forth in page 12a of the Prisoner Guidebook, which states:

Prisoners shall be permitted access to all books, periodicals and other publications except the following:

10. Nude snapshots taken with home-type cameras.

In Carpenter v. State of South Dakota, 536 F.2d 759 (8th Cir.1976), cert. den., 431 U.S. 931, 97 S.Ct. 2636, 53 L.Ed.2d 246 (1977), the court, in a case markedly similar to the present one, upheld a prison censorship board’s ban on the receipt of mail containing sexually explicit material. The court stated:

Three inmates of the South Dakota Penitentiary appeal from the district court’s dismissal of their petition seeking damages and equitable relief. Petitioners challenge the prison censorship board’s ban on the receipt by prisoners of mail containing sexually explicit material.
The district court dismissed the petition as frivolous, without a hearing and without requiring a response from the defendants. The district court found:
The application clearly shows that Plaintiffs were given written notice that certain mail items were being rejected. Petitioners were granted a hearing at which they were present and given an opportunity to be heard. The mail items were rejected on the basis that they constituted a danger to rehabilitation.
Petitioners assert that the district court erred in failing to grant them an evidentiary hearing on whether prison officials were justified in refusing to allow prisoners to receive these publications. We disagree.

536 F.2d at 760-761.

Here we are satisfied that the face of the petition including petitioners’ own exhibits demonstrates the court was warranted in dismissing the petition without requiring further response by the board or the conduct of further hearings.
The decision of the board that receipt of the items described in this case would have a detrimental effect upon rehabilitation was well within the discretion of the board and requires no further review by the courts.

536 F.2d at 763.

In Guajardo v. Estelle, 580 F.2d 748 (5th Cir.1978), the court held that the right of prison officials to ban sexually explicit material is not limited to that which has been judicially declared obscene. The court specifically held that it could ban homosexual material, provided that the prisoner is given notification of the refusal and be allowed to appeal that decision through proper administrative channels. This is precisely what the Michigan policy directive provides here and precisely the procedure followed here. In approving the ban on homosexual material, the court in Guajardo stated:

Thus for inmates stimulated by sexually explicit material the temptation to further criminal behavior looms large. We think it clear that a legitimate rehabilitation interest of prison authorities is involved in preventing homosexual acts. We are not willing to condone the introduction of material into the prison that would exacerbate the situation.

580 F.2d at 762.

The reason behind the policy of forbidding nude snapshots taken with home-type cameras and allowing only photographs of nudes which have been published for commercial use was explained, as indicated above, in the notice to the plaintiff regarding the administrative hearing:

The intent of this prohibition is to prevent prisoners from receiving nude photographs of wives or girlfriends, as such photos could cause serious disruption between prisoners if they are seen by someone other than the prisoner to whom they were sent. Thus, only nude photos which have been published for commercial use are allowed. As the photos which were sent to you are not of a commercial nature, you will not be allowed to receive them (Pleading # 14).

In Trapnell v. Riggsby, 622 F.2d 290 (7th Cir.1980), the court specifically approved such a policy, holding that a prison regulation prohibiting inmates from possessing or receiving photographs of nude or seminude women unless the photographs had been published for commercial use was constitutionally valid. The court stated:

Rather than attempt to suppress expression per se, the regulation is an attempt to diminish the possibility that, when certain photos are in the possession of inmates, those photos will be the cause of violence between the inmates. We note that each of the photographs that Trapnell ordered from Gowland was selected from Gowland’s catalogues, which catalogues Trapnell was allowed to receive through the prison mail system.
Finally, the regulation is sufficiently narrow in scope and is “no greater than is necessary or essential to the protection of the particular governmental interest involved.” Procunier v. Martinez, 416 U.S. [396] at 413, 94 S.Ct. [1800] at 1811 [40 L.Ed.2d 224 (1974)]. Under these regulations prison officials are not entitled “to apply their own personal prejudices and opinions as standards for prisoner mail censorship.” Id. at 415, 94 S.Ct. at 1812. Instead, these regulations are a narrowly drawn and carefully limited response to a valid security problem faced by officials. The distinction between photographs which have been released for commercial distribution and those photos which have not been so released is a reasonable attempt to exclude photographs of women with whom inmates have an emotional attachment. (Emphasis supplied).

622 F.2d at 293.

The court concludes that the prison policy which plaintiff challenges here is constitutionally valid as a proper and reasonable response to legitimate prison concerns involving both security and rehabilitation interests. It provides for giving the prisoner a Notice of Package Rejection form whenever mail is rejected. The form notifies the prisoner of the rejection and the reasons for the rejection. The form also affords the prisoner an opportunity for an administrative hearing to challenge the rejection. He simply has to check a box so indicating. This policy was strictly followed in this case. Not only did the plaintiff not request a hearing on the form, but when later offered the opportunity for a hearing, he initially requested it and then four days later advised the warden that he did not want a hearing for such a “Frivolous Matter” and for “something so trivial.” He also told the warden that “I now see reason for your restricting certain literature.” (Exhibit C). In any event, when he again changed his mind, he was afforded an administrative hearing in accordance with the policy directive.

Plaintiff alleges that the mailroom personnel are not qualified to distinguish between photographs taken by a commercial photographer and those taken by a home-type camera. Assuming this doubtful premise is true, this is a matter which can be raised and determined at the administrative hearing to which the inmate is entitled, and raised again in the appellate process as provided in the policy directive.

Plaintiff also alleges that the prison at Jackson has a more liberal mail policy regarding the type of material here involved. Again, assuming this is true, plaintiff himself recognized that this may be attributable to a number of valid reasons as, for example, the difference in the institutions and the custody classification of the inmates in each institution. Thus, in his letter to the warden on October 7, 1983, stating that he did not wish an administrative hearing, he said:

I do not wish to try to change whatever policies you have set for the institution, as I like it here, and however restrictive some of the Policies may seem in comparison to Jackson’s. I do realize that Men, circumstances and other considerations I may not presently be aware of. Have, pursuaded your thoughts, in setting policy according to the Institution (Exhibit C).

Moreover, if the mail policy at the Jackson prison is more liberal, the inmate can bring this out at his administrative hearing in support of his challenge to the rejection of the mailed material.

For the reasons stated above, the defendants’ motion for summary judgment is granted, and the complaint as amended is dismissed.

      . The complaint refers to various exhibits, only some of which are attached to the complaint. A copy of the catalog and two of the snapshots are contained in pleading # 4.

      . A copy of the policy directive and of page 12a of the Prisoner’s Guidebook is attached to the defendants’ motion for summary judgment and supporting brief.

      . Plaintiff alleges that mailroom personnel do not have the expertise to determine whether a photo has been taken by a "box-type” camera. Here again, he distorts the facts. The regulation refers to “home-type camera,” not “box-type” camera.

      . For example, the prison at Marquette is a maximum custody institution, while the prison at Jackson is a close or medium custody institution.


source: Caselaw Access Project

author: JAMES R. MILLER, Jr., District Judge.

license: Public Domain

text:
    Paul J. CATALANA and Dorothy Catalana v. CARNIVAL CRUISE LINES, INC.
    Civ. A. No. M-84-799.
    United States District Court, D. Maryland.
    Sept. 13, 1984.

      Howard Janet, Stephen L. Snyder, and George W. Liebmann, Baltimore, Md., for plaintiffs.
    John H. West, III, Pamela J. White, and Ober, Kaler, Grimes and Shriver, Baltimore, Md., for defendant.
   MEMORANDUM AND ORDER

JAMES R. MILLER, Jr., District Judge.

The plaintiffs, Paul J. and Dorothy Catalana, filed this negligence and loss of consortium action on February 29, 1984, alleging personal injuries suffered by Paul J. Catalana when he was struck by a stray golf ball on January 1,1982, while on board a cruise ship owned by the defendant, Carnival Cruise Lines, Inc. (Carnival) (Paper No. 1). The defendant has moved to dismiss for lack of personal jurisdiction, failure to state a claim, and improper venue, or, in the alternative, has moved for summary judgment (Paper No. 4). The plaintiff has responded (Paper No. 7), and the defendant has filed a reply (Paper No. 9). After reviewing the submitted memoranda, the court concludes that no hearing is necessary. Local Rule 6(E).

I. Factual Overview

The plaintiffs, both residents of Maryland, contracted to be passengers aboard a cruise ship owned and operated by the defendant. The cruise was to leave Miami, Florida, visit ports of call in the Caribbean, and return to Miami. On January 1, 1982, while plaintiff, Paul Catalana, was walking aboard the cruise ship, he was struck on the left side of his head by a golf ball which had been driven from the ship’s golf platform and ricocheted back toward the ship.

II. Motion to Dismiss for Lack of Personal Jurisdiction

The defendant states in its motion to dismiss that it is a Florida corporation with its principal place of business in Florida, that it is not registered to do business in Maryland, and that it neither transacts business in Maryland nor engages in any activity which would subject it to the personal jurisdiction of this court (Paper No. 4, at 4-5). The affidavit of Jack J. Stein, an employee of the defendant with responsibility for coordinating passenger cruises, describes the defendant as a Panama corporation with its principal place of business in Florida (Stein Affidavit, ¶ 2). This affidavit states that Carnival has no place of business in Maryland, is not registered to do business in Maryland, and does not transact business or engage in any activity in Maryland (id.). The corporation does not make direct sales of cruise ship accommodations in Maryland, but receives booking requests from travel agents throughout the country (id.). Carnival does not own or lease property in Maryland, has no offices in Maryland, has no bank accounts or telephone numbers in Maryland, and does not engage the services of any marketing representatives in Maryland (Stein Affidavit, ¶ 3). The voyage on which the plaintiff was allegedly injured originated and concluded at Miami, Florida, and was conducted through the Caribbean (Stein Affidavit, 114).

If this court has personal jurisdiction over the defendant in this case, it has it under the Maryland Long Arm Statute, Md.Cts. & Jud.Proc.Code Ann. § 6-103. Application of the long arm statute is a two step process. First, the court must determine whether the statute purports to per-" mit service of process on the non-resident. Second, the court must determine whether the service and exercise of personal jurisdiction comports with constitutional requirements under the Due Process Clause. Synder v. Hampton Industries, Inc., 521 F.Supp. 130, 135 (D.Md.1981); Craig v. General Finance Corp. of Illinois, 504 F.Supp. 1033, 1036 (D.Md.1980).

The plaintiffs assert that this court has jurisdiction pursuant to subsections (b)(1), (b)(2), and (b)(4) of the Maryland Long Arm Statute, which provides, in pertinent part, as follows:

“(a) Condition. — If jurisdiction over a person is based solely upon this section, he may be sued only on a cause of action arising from any act enumerated in this section.
(b) In general.— A court may exercise personal jurisdiction over a person, who directly or by an agent:
(1) Transacts any business or performs any character of work or service in the State;
(2) Contracts to supply goods, food, services, or manufactured products in the State; ...
(4) Causes tortious injury in the State or outside of the State by an act or omission outside of the State if he regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from goods, food, services, or manufactured goods used or consumed in the State.”

Md.Cts. & Jud.Proc.Code Ann. § 6-103 (1974).

Personal jurisdiction will exist under the Maryland Long Arm Statute if any one of its subsections is satisfied. Craig v. General Fin. Corp., 504 F.Supp. 1033, 1036 (D.Md.1980). In addition, as this court stated in Craig, 504 F.Supp. at 1036:

“This court is bound by the decisions of the Court of Appeals of Maryland as to whether a particular subsection will reach certain conduct. McLaughlin v. Copeland, 435 F.Supp. 513, 522 (D.Md.1977); Bennett v. Computers Intercontinental, Inc., 372 F.Supp. 1082, 1084 (D.Md.1974). See Shealy v. Challenger Mfg. Co., 304 F.2d 102, 104 (4th Cir.1962). Federal law is controlling, however, as to whether the exercise of personal jurisdiction violates due process. United Merchants & Mfrs., Inc. v. David & Dash, Inc., 439 F.Supp. [1078] at 1081 [D.Maryland 1977].”

The plaintiffs assert personal jurisdiction under subsection (b)(1) of the Maryland Long Arm Statute, based on Carnival’s “regular arrival and departure of vessels within the state” (Paper No. 7, at 5). The “transacting business” standard of subsection (b)(1) has been held to be coextensive with the limits of due process. Snyder v. Hampton Industries, Inc., 521 F.Supp. 130, 136 (D.Md.1981); McLaughlin v. Copeland, 435 F.Supp. 513, 523 (D.Md.1977); Malinow v. Eberly, 322 F.Supp. 594, 598 (D.Md.1971); Geelhoed v. Jensen, 277 Md. 220, 224, 352 A.2d 818 (1976). Reliance on Carnival’s cruises from Baltimore for jurisdiction under subsection (b)(1) is misplaced, however, due to the limitation imposed by subsection (a).

In Sibert v. Flint, 564 F.Supp. 1524 at 1528 (D.Md.1983), this court described the relationship between subsections (a) and (b)(1) of the Maryland Long Arm Statute as follows:

“Consideration of personal jurisdiction under subsection (b)(1) necessarily invokes the limitation in subsection (a) that the cause of action arise from an act enumerated in (b)(1). Although subsection (a) does not provide any substantive limitation which exeeds that imposed by the Due Process Clause, see Malinow v. Eberly, 322 F.Supp. 594, 598-600 (D.Md.1971), it does require that ‘some purposeful acts [have been] performed by the defendant in Maryland in relation to one or more of the elements of the cause of action,’ id. at 599. Accord Snyder v. Hampton Industries, Inc., 521 F.Supp. 130, 145-46 (D.Md.1981); McLaughlin v. Copeland, 435 F.Supp. 513, 522-23 (D.Md.1977).”

The cruises on which the plaintiffs base their claim of jurisdiction left the port of Baltimore. The plaintiffs’ cruise, however, began and ended in Miami. Because the plaintiffs’ cause of action did not arise from the Baltimore cruises, the Baltimore cruises may not support a finding of personal jurisdiction under subsection (b)(1).

The plaintiffs assert that this court has personal jurisdiction pursuant to subsection (b)(2) also, because the ticket issued in this case was an air/sea contract originating in Baltimore. The defendant’s brochure advertises free or reduced air fare from over 160 cities to Miami or Los Angeles for passengers on Carnival cruises. (1984 Carnival Cruise Lines brochure at 9, appended to plaintiffs’ Memorandum in Response). The plaintiffs do not contend that the ticket was sold by an agent of Carnival rather than an independent travel agency. Nor do the plaintiffs claim that the carrier which flew them from Baltimore to Miami was an agent of the defendant. Instead, they contend that the defendant should be subject to personal jurisdiction simply because it offers air/sea tickets originating in Baltimore. Since the plaintiffs assert no action by Carnival with respect to the activities in Maryland, their argument is based on the actions of other entities, the travel agent and the airlines. Travel agents are not generally considered to become the agent of the one selling the cruise simply by providing tickets to passengers. Mulhem v. Holland America Cruises, 393 F.Supp. 1298, 1302 (D.N.H.1975). Nor is it likely that the airline, by carrying the passengers to Miami for these cruises, was acting as the agent of the defendant.

There is, therefore, no indication why the acts of the other entities should be attributed to the defendant.

“It is essential in each case that there be some act by which the defendant purposefully avails himself of the privilege of conducting activities within the forum state — thus invoking the benefit and protection of its laws.”

Harris v. Arlen Properties, Inc., 256 Md. 185, 195 (1969), citing Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958). As with the analysis of subsection (b)(1), the cruises by Carnival within Maryland are prevented by subsection (a) from providing jurisdiction under subsection (b)(2), because the cause of action alleged in this case did not arise from the Maryland cruises.

If this court possesses personal jurisdiction over the defendants, it must be as a result of subsection (b)(4). This subsection permits the court to exercise personal jurisdiction over a defendant who “regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from goods, food, services, or manufactured goods used or consumed in the State.” This court has stated with regard to subsection (b)(4):

“This section authorizes jurisdiction over tortious causes of action causing injury anywhere by acts committed or omitted anywhere provided that the defendant has a sufficient nexus with Maryland to satisfy the terms of the statute.”

Topik v. Catalyst Research Corp., 339 F.Supp. 1102, 1106 (D.Md.1972), aff'd, 473 F.2d 907 (4th Cir.1973), cert. denied, 414 U.S. 910, 94 S.Ct. 231, 38 L.Ed.2d 148 (1973). Furthermore, where jurisdiction is founded on subsection (b)(4), the requirement of subsection (a) need not be satisfied. Greenwood v. Tides Inn, Inc., 504 F.Supp. 992, 996 (D.Md.1980); Carter v. Massey, 436 F.Supp. 29, 32 (D.Md.1977). The Baltimore cruises can, therefore, be taken into account in the examination under subsection (b)(4).

The burden of alleging and proving the jurisdictional facts, once they have been placed in controversy, rests with the plaintiffs. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936); United Merchants & Mfrs., Inc. v. David & Dash, Inc., 439 F.Supp. 1078, 1081 (D.Md.1977); Malinow v. Eberly, 322 F.Supp. 594, 600 (D.Md.1971). The defendant denies engaging in any purposeful activity in Maryland (Paper No. 4, at 9; Stein Affidavit, II2). The plaintiffs, however, have produced evidence that the defendant regularly conducted cruises out of the port of Baltimore during the spring and fall from 1978 through 1983 (Paper No. 7, at 1-2; Liebmann Affidavit, ¶ 2).

Subsection (b)(4) sets up three alternative tests for determining when a defendant has a “sufficient nexus” with Maryland to satisfy the statute. It is apparent that all three of the tests are met here. First, defendant’s cruises out of Maryland during the spring and fall for six consecutive years constitutes regularly doing business in the state sufficient to satisfy the first test. Second, this same conduct satisfies the second test, because the defendant has engaged in a persistent course of conduct within the meaning of the statute. Topik v. Catalyst Research Corp., 339 F.Supp. 1102 (D.Md.1972), is analogous in this finding. In Topik, this court found corporate directors to be engaging in a persistent course of conduct by coming into Maryland each year for five years to attend the annual stockholders and board of directors meetings. 339 F.Supp. at 1107. Third, the defendant has carried a large number of passengers on its cruises departing from Baltimore. These passengers have certainly provided Carnival with substantial revenue from services provided, at least in part, in Maryland.

Exercise of personal jurisdiction over the defendant in this case does not violate due process constraints. By using the port of Baltimore as a site for regularly scheduling cruises, Carnival has “purposefully avail[ed] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958). It cannot be said that requiring Carnival to defend a suit brought against it in a court in Maryland would violate “traditional notions of fair play and substantial justice.” International Shoe Co. v. State of Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945), citing Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 342, 85 L.Ed. 278 (1940). For these reasons, this court possesses personal jurisdiction over the defendant Carnival Cruise Lines, Inc.

III. Contractual Effect of Ticket Conditions

The defendant contends that the plaintiffs’ complaint fails to state a claim because the suit is barred by contractual limitations. Paragraph 7 of the passenger ticket issued by the defendant stated:

“The Carrier shall not be liable for any claims whatsoever of the passenger unless full particulars thereof in writing be given to the Carrier or their agents within 185 days after the passenger shall be landed from the vessel or in the case the voyage is abandoned within 185 days thereafter. Suit to recover any claim shall not be maintainable in any event unless commenced within one year after the date of the loss, injury or death.”

In the alternative, the defendant asserts that venue in this court is improper under paragraph 8 of the passenger ticket, which stated:

“It is agreed by and between the passenger and the Carrier that all disputes and matters whatsoever arising under, in connection with or incident to this Contract shall be litigated, if at all, in and before a Court located in the State of Florida, U.S.A., to the exclusion of the Courts of any other state or country.”

These conditions were stated on the reverse of the passage ticket. The front of the ticket contains three references to the provisions on the back. In the lower right-hand corner of the ticket appears: “The provisions on the reverse hereof are incorporated as though fully rewritten.” The lower right-hand corner calls attention to the provisions twice, stating: “Subject to Conditions of Contract on Last Pages,” and “Important! Please Read Contract on Last Pages 1, 2, 3.” The terms of the contract are also called to the passengers’ attention in the brochure given to passengers at embarkation.

There is no dispute as to whether the plaintiffs received the ticket in question. The plaintiffs, however, argue that the conditions should not be given effect, because the ticket was not signed by the passengers, and there is no evidence that the conditions were ever brought to the passengers’ attention. Plaintiffs rely heavily on the Supreme Court’s decision in The Majestic, 166 U.S. 375, 17 S.Ct. 597, 41 L.Ed. 1039 (1897), to support their argument.

The contractual effect of conditions printed on a ticket has received a great deal of attention. See, e.g., Annot., 5 A.L.R.Fed. 394 (1970). Essentially, whether the conditions are given contractual effect depends on whether they are determined to have been incorporated into the contract for passage. Such a determination is often made by examining the form of the ticket used to see whether it provided adequate notice to the passenger that the conditions were to be part of the passage contract.

In The Majestic, 166 U.S. 375, 17 S.Ct. 597, 41 L.Ed. 1039 (1897), the Supreme Court held a limitation provision on the back of a ticket not binding on a passenger because it was “a mere notice.” The Court held that the conditions “were not included in the contract proper, in terms or by reference,” and, therefore, could not be given any effect without being brought to the passengers’ attention. 166 U.S. at 385, 17 S.Ct. at 601. Although this case has been followed in a number of subsequent cases, see, e.g., Silvestri v. Italia Societa Per Azioni Di Navigazione, 388 F.2d 11 (2d Cir.1968), other courts have found that where the front of the passage ticket contains conspicuously placed legends purporting to incorporate into the passage contract the conditions on the ticket’s back, the conditions will be enforced. For example, in Getter v. Holland-America Lines, 298 F.2d 618 (2d Cir.1962), a time limitation requiring an action for personal injuries to be brought within one year was held to bar an action brought more than a year after the injury, even though the ticket in that case was collected at the time of embarkation. Similarly, in DeNicola v. Cunard Line Ltd., 642 F.2d 5 (1st Cir.1981), a restriction requiring personal injury actions to be brought within one year was upheld because “the defendant had done all it reasonably could to warn of both [the conditions’] existence and their importance.” Id. at 11. See also Miller v. Lykes Bros. S.S. Co., 467 F.2d 464 (5th Cir.1972).

Only one reported case in this district has been found relating to this issue. In The City of Norfolk, 13 F.Supp. 511 (D.Md.1936), steamship passengers brought an action for damage to their baggage in an amount in excess of the limitation of liability stated on the reverse of the passenger ticket. The front of the ticket directed the passenger to the back, where the conditions were continued. In rejecting the passengers’ claim that the limitation did not bind them because it was never brought to their attention and not actually known by them, the court stated:

“In my opinion the clause limiting the amount of liability on the tickets here involved was a part of the contract and not a mere notice to the passengers, and the case is, therefore, not governed by the rule of The Majestic. Nor is it a sound objection to this conclusion that the particular condition happened to be printed on the back of the ticket (there not being space on the face for the inclusion of all the contract terms), as the attention of the ticket holder was appropriately called to the continuation of the contract terms by the wording on the face of the ticket.”

13 F.Supp. at 513.

The defendant in this case called attention to the contract conditions by inserting legends on the front of the ticket and in the brochure given to passengers upon embarkation. There is little more that the defendant could have done to call the contract conditions to the attention of the passengers and to impress upon them their importance. These references were adequate to incorporate the limitation and venue provisions into the passage contract.

It is not disputed that the injury involved here occurred on January 1, 1982. This action, however, was not filed until February 29, 1984, over two years after the date of the injury. Under paragraph 7 of the ticket contract, the limitations provision that a suit must be commenced within one year from the date of injury, this action cannot be maintained.

For the reasons set forth above, it is this 13th day of September, 1984, by the United States District Court for the District of Maryland, ORDERED:

1. That the Motion to Dismiss for Lack of Personal Jurisdiction filed by Carnival Cruise Lines, Inc. be, and the same is hereby, DENIED.

2. That the Motion to Dismiss for failure to state a claim due to contractual limitations be, and the same is hereby, GRANTED.


author: DUHE, District Judge.

text:
    Tammy THIBODEAUX, et al. v. Elton A. ARCENEAUX, et al.
    Civ. A. No. 83-1676 “L”.
    United States District Court, W.D. Louisiana, Lafayette-Opelousas Division.
    Oct. 18, 1984.
    On Rehearing Nov. 26, 1984.

      Sandrea L. Everett, Lafayette, La., for plaintiffs.
    Richard J. Petre, Jr., Lafayette, La., for defendants.
   MEMORANDUM OPINION

DUHE, District Judge.

On May 23, 1981, Tammy Thibodeaux, co-plaintiff in this matter, purchased with a personal check $14.66 worth of goods from the West Brothers Department Store in Crowley, Louisiana, in Acadia Parish. The check was returned to the store for non-sufficient funds. The store manager sent a certified letter to plaintiff informing her of this fact and requested restitution. Thibodeaux failed to respond. On June 30, 1981, the store manager filed charges of theft by worthless check with the Clerk of the Crowley City Court.

On July 1, 1981, Thibodeaux was sent a letter by the Crowley City Court informing her of the charges and warning that unless restitution and costs were paid, a warrant for her arrest would be issued. Thibodeaux did not respond, and so on November 5, 1981, a warrant was issued by the Crowley City Court for her arrest.

On January 22, 1982, the Crowley City Court issued a fugitive arrest warrant for Tammy Thibodeaux. Thibodeaux does not contest the validity of the issuance of this warrant, which was issued with probable cause and signed by Judge Aaron of the Crowley City Court. A certified copy of this fugitive arrest warrant was sent to the Rayne Police Department, as the plaintiff resided in Rayne (Acadia Parish). The Rayne Police Department, believing the Thibodeaux family had moved to Crowley, returned the certified copy of the warrant to the Crowley City Court. The deputy clerk, Gwen Breaux, then sent the certified copy of the warrant on February 19, 1982, to the Crowley Police Department. The normal procedure would have been for Breaux to note on the original warrant that the certified copy had been sent to the Crowley Police Department, so if the charges were dropped or dismissed, the warrant could be recalled. Breaux, however, failed through clerical oversight to do this.

Tammy Thibodeaux asserts that she was not aware of the outstanding charges and fugitive arrest warrant until a Rayne policeman and personal acquaintance, Mike Constantine, informed her of those facts and warned that the warrant would be executed if she did not make restitution. On or about June 1, 1982, Thibodaux mailed to the Clerk’s Office a check for $39.66 to make restitution and cover costs. On June 7, 1982, the Clerk of Court dismissed the charges against her. The certified copy of the fugitive arrest warrant, however, was not recalled from the Crowley Police Department, as the Deputy Clerk of Court, Gwen Breaux had not recorded the fact that it had been sent there to begin with.

On the late afternoon of July 4, 1982, Officer Constantine came across Tammy Thibodeaux and her minor daughter, Tonya, while he was on patrol in Rayne. He checked by his car radio with the Crowley Police Department and was told the fugitive arrest warrant was still outstanding. Constantine stopped Thibodeaux and her daughter and informed her he was going to have to execute the warrant. Thibodeaux protested that she paid restitution and the charges had been dropped. Constantine released Thibodeaux and her daughter to allow them to return home in search of the receipt. Thibodeaux promised Constantine that she would surrender herself at the Rayne Police Station in the next few hours, either with or without a receipt.

Thibodeaux was unable to locate the receipt at home, and as promised surrendered herself at the Rayne Police Station within two hours. Her daughter still accompanied her. (It is unclear why Tammy Thibodeaux returned to the police station with her daughter, Tonya. There were other family members at home, and a friend of Thibodeaux who seemingly could have taken custody of Tonya had helped search the home for the receipt). Thibodeaux protested that she had paid restitution, and that the charges against her had been dropped. The Rayne Police were informed by the Crowley Police that the fugitive arrest warrant was still outstanding, and that the Rayne Police were to detain her until officers arrived from Crowley to transfer her to Crowley. It is conceded by the defendant that Thibodeaux’s detainment upon her arrival at the Rayne Police Station constituted an arrest for purposes of the Fourth and Fourteenth Amendments.

After some two hours at the Rayne Police Station, Thibodeaux and her daughter were taken to the Crowley Police Department. Upon her arrival, Thibodeaux repeated her protest that she had paid restitution and the charges against her had been dropped. The Crowley Police, with the outstanding certified copy of the fugitive arrest warrant, determined they had no choice but to keep Thibodeaux in custody until bond was posted or the Crowley City Court informed them otherwise. The Crowley City Court, however, was closed that day (Sunday, July 4th) and would remain closed on Monday as well. Thibodeaux and her child were detained for some five hours in the lobby of the Crowley Police Department, and released in the early hours of July 5, when Tammy’s parents arrived to post bond.

Tammy Thibodeaux brought this action in her own capacity, as well as in her capacity as co-administrator of her minor child’s estate, against multiple defendants. It is contended that Tammy Thibodeaux and her minor child were wrongfully deprived of their civil rights by persons acting under the color of state law, and thus entitled to damages under 42 U.S.C. § 1983. In addition, plaintiffs asserted claims for false arrest and wrongful imprisonment under Articles 2315 and 2316 of the Louisiana Civil Code through the pendent jurisdiction of this Court.

This matter went to trial before this Court on August 20, 1984. At the close of defendants’ case the Court granted directed verdicts on plaintiffs’ § 1983 cause of action in favor of defendants John Gibson, Chief of Police of the City of Crowley; The City of Crowley; and Ellis Cradeur, the Marshall of the Crowley City Court. Subsequently the jury granted verdicts in favor of Gibson, The City of Crowley, and Ellis Cradeur on the pendent state tort claims, but found defendant Gayle Newton, Clerk of Crowley City Court, liable under § 1983 and Articles 2315 and 2316 for $10,-000 in compensatory damages ($5,000 each to Mrs. Thibodeaux and her daughter) and $20,000 in punitive damages to Tammy Thibodeaux under § 1983.

Defendant Gayle Newton has moved that this Court render a judgment in her favor notwithstanding the verdict pursuant to Federal Rule of Civil Procedure 50(b) on the grounds that:

(1) The evidence of trial failed to show Gayle Newton had any liability under 42 U.S.C. § 1983.
(2) The evidence at trial failed to show any circumstances that would defeat the qualified immunity enjoyed by Gayle Newton.
(3) The evidence at trial failed to show Gayle Newton had any liability under any pendent state cause of action.
(4) The evidence at trial failed to show any circumstances that would allow the imposition of punitive damages.

In weighing defendant’s motion, this Court is guided by the principles enunciated by the Fifth Circuit en banc in Boeing Company v. Shipman, 411 F.2d 365 (5th Cir.1969), and recently affirmed in Dalton v. Toyota Motor Sales, Inc., 703 F.2d 137 (5th Cir.1983). Those principles are that the Court should consider all of the evidence — not just the evidence which supports the non-mover’s case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motion is proper. On the other hand, if there is substantial evidence opposed to the motion, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied, and the case submitted to the jury [or the jury’s verdict left intact].

Plaintiffs concede that since the evidence at trial showed that it was the Deputy Clerk of Court, Gwen Breaux, whose negligence caused the warrant not to be recalled, there was no viable pendent state delictual claim against Gayle Newton, the Clerk of Court, under the relevant articles of the Louisiana Civil Code. The question, then, becomes whether or not the jury could have found Gayle Newton liable to Tammy Thibodeaux and her minor daughter, Tonya, under 42 U.S.C. § 1983.

42 U.S.C. § 1983 provides in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any state or territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

TAMMY THIBODEAUX’S CLAIM

The U.S. Supreme Court in Baker v. McCollan, 443 U.S. 137, 138, 99 S.Ct. 2689, 2691, 61 L.Ed.2d 433 (1979), declared that “the first inquiry in any § 1983 suit, ... is whether the plaintiff has been deprived of a right ‘secured by the Constitution and laws.’ ” Id., 443 U.S. at 190, 99 S.Ct. at 2692. In the case at bar Tammy Thibodeaux asserts her arrest and detainment were wrongful. In delictual terms that may very well be the case. But whether her arrest and detainment were violative of her constitutional rights is an entirely different question.

The Fourteenth Amendment requires “due process of law” for a state to deprive an individual of liberty. The Fourth- Amendment, as applied to the states, through the “incorporation” doctrine, requires “the states to provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty”. Baker, at 142-143, 99 S.Ct. at 2693-2694, citing Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). “The probable cause determination ‘must be made by a judicial officer either before or promptly after an arrest’ ...” Baker, 443 U.S., at 143, 99 S.Ct. at 2694. In the case at bar plaintiff does not suggest the fugitive arrest warrant for Tammy Thibodeaux was invalid. It was issued upon a showing of probable cause (i.e., theft by worthless check), and signed by Judge Aaron of the Crowley City Court. When the charges against Tammy Thibodeaux were dismissed, the facially valid certified copy of the fugitive arrest warrant was not recalled due to clerical error in the Clerk of Court’s office. It is apparent, then, that regardless of whatever claims Tammy Thibodeaux has in tort, she has failed to establish that she was deprived of her liberty without due process. In Baker, the Supreme Court said that: “§ 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law”.

Thibodeaux asserts that Baker stands for the proposition that if one is wrongfully arrested pursuant to a facially valid warrant, only the arresting officers are immune from § 1983 liability, while those who issued the warrant are still subject to § 1983 liability. Plaintiff fails to recognize, however, that the threshhold question is whether she has actually been deprived of liberty without due process — one cannot be deprived of due process as to one defendant, and not deprived of due process as to another. Either the plaintiff’s constitutional rights were deprived, or weren’t. As the Court said in Baker, “If there has been no such deprivation, the state of mind of the defendant is wholly immaterial.” Id. at 146, 99 S.Ct. at 2692. This Court finds that the plaintiff's arrest and seven hour detainment conformed to the requirements of the Fourth Amendment and the Due Process Clause of the Fourteenth Amendment. Hence, plaintiff never had a § 1983 cause of action.

Even assuming, arguendo, that plaintiff’s arrest was unconstitutional, she has failed to establish a § 1983 claim against Gayle Newton, Clerk of Crowley City Court.

It is well-settled that in a § 1983 action “[a] supervisory official cannot be sued under a theory of pure vicarious liability or respondeat superior.” Reimer v. Smith, 663 F.2d 1316 (5th Cir.1981). Instead, a plaintiff must show that the supervisor personally participated in the alleged wrongdoing; or that the wrongdoing was due to a custom which had received formal approval by the supervisor; or that the wrongdoing was part of the persuasive pattern of conduct; or that there was a failure to supervise that amounts to gross negligence or deliberate indifference. Bowen v. Watkins, 669 F.2d 979 (5th Cir.1982); Jones v. Denton, 527 F.Supp. 106 (D.C.Ohio 1981). No such showing was made in this case. Indeed, the evidence at trial only showed that the fugitive arrest warrant was not recalled due to the clerical oversight of Gwen Breaux, the Deputy Clerk of Court.

Finally, even if Tammy Thibodeaux did have a § 1983 cause of action, and had she established a claim against Gayle Newton, there was no basis from the evidence adduced at trial for an imposition of punitive damages. There was no evidence that Gayle Newton’s actions were malicious, wanton, or oppressive.

TONYA THIBODEAUX’S CLAIM

It is unclear why Tammy Thibodeaux brought her minor child Tonya along when she surrendered herself at the Rayne Police Station. This Court finds' that Tonya was in her mother’s custody during Tammy’s detention at the Rayne and Crowley Police Stations, and the fact that Tonya spent several hours at police stations is due to her mother’s decision. Therefore, Tonya Thibodeaux never had a § 1983 cause of action.

Even if Tonya Thibodeaux had established a § 1983 cause of action, she has no claim against Gayle Newton for the reason that there is no respondeat superior basis of liability under this statute, as discussed supra.

There is no need for this Court to examine the question of whether Gayle Newton established with sufficient evidence the affirmative defense of qualified immunity of a judicial officer.

Accordingly, defendant Gayle Newton’s motion for judgment notwithstanding the verdict is hereby granted.

IT IS ORDERED that the jury verdict previously entered for plaintiff be set aside, and that there be entered a judgment with prejudice in favor of defendant Gayle Newton; and against plaintiff Tammy Thibodeaux and her minor daughter, Tonya, dismissing their demands at their costs.

ON REHEARING

Plaintiffs have moved that this Court alter or amend its Judgment in the above captioned matter. Movers contend that the Court erred in entering judgment notwithstanding the verdict in favor of defendant, Gayle Newton, and that the jury erred in finding that the City of Crowley was not liable for the negligence, of the Deputy Clerk of the Crowley City Court.

This Court reaffirms its earlier finding that plaintiff Tammy Thibodeaux never had a § 1983 cause of action. “When an arrest is made under authority of a properly issued warrant the arrest is simply not a false arrest. Rodriguez v. Ritchey, 556 F.2d 1185 (5th Cir.1977). Such an arrest is not unconstitutional, and a [§ 1983] complaint based on such an arrest is subject to dismissal for failure to state a claim.” Smith v. Gonzales, 670 F.2d 522, 526 (5th Cir.1982). (Emphasis added).

This Court also reaffirms its earlier finding that plaintiff, Tonya Thibodeaux, minor daughter of Tammy Thibodeaux, never had a § 1983 cause of action, for the simple fact that she accompanied her mother to the police station at her mother’s choice.

The plaintiffs also failed to establish any pendant state delictual claim against Gayle Newton. No showing of negligence or breach of duty on Newton’s part was made. Indeed, the only negligence established was that of Gwen Breaux, Deputy Clerk of Court — who is not a party to this suit.

Under Louisiana law, the City of Crowley cannot be held vicariously liable for the delictual acts or omissions of the employees of the Crowley City Court, who are officers and employees of the State. The City of Crowley is not the employer or master of the Crowley City Court, and hence is not liable for the negligence of Gwen Breaux. Cosenza v. Aetna Insurance Company, et al, 341 So.2d 1304 (La.App. 3rd Cir.1977).

Accordingly, plaintiffs’ motion is denied. The judgment of this Court rendered on October 18, 1984, is reaffirmed.


author: DEBEVOISE, District Judge.

text:
    William JENKINS, Plaintiff, v. John J. RAFFERTY, Warden and Irwin I. Kimmelman, Attorney General of the State of New Jersey, Defendants.
    Civ. A. No. 83-4085.
    United States District Court, D. New Jersey.
    Oct. 23, 1984.
    William Jenkins, pro se.

      George L. Schneider, Prosecutor of Essex County by Josephine R. Potuto, Asst. Essex County Prosecutor, Newark, N.J., for defendants.
   OPINION

DEBEVOISE, District Judge.

Petitioner, an inmate of the New Jersey State Prison of Rahway, was convicted on March 18, 1977 of murder, commission of murder while armed, robbery and commission of robbery while armed. He seeks issuance of a writ of habeas corpus pursuant to 28 U.S.C. §§ 2241, et seq.

Petitioner alleges that he was arrested at his home after a warrantless, nonconsensual entry. Thereafter he gave a confession which was used against him at trial. Prior to trial he had moved to suppress evidence found in an automobile which had been seized immediately after the arrest. As part of his attempt to demonstrate the unlawfulness of the search of the automobile, petitioner’s attorney questioned the police claim that they had a warrant for petitioner’s arrest. Under then prevailing New Jersey law a warrant was not required to make an arrest on probable cause in a private home. After petitioner had appealed his conviction and had lost in the Appellate Division of the New Jersey Superior Court and in the New Jersey Supreme Court, but before the time to petition the United States Supreme Court for certiorari had expired, the United States Supreme Court decided the case of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Payton held that the Fourth Amendment prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home to make a routine felony arrest. Instead of petitioning the United States Supreme Court for certiorari petitioner sought post conviction relief in the New Jersey trial court. Relief was denied on the grounds that the Supreme Court would not apply Payton retroactively. Thereafter the United States Supreme Court ruled that Payton was to be applied retroactively to all convictions that were not yet final at the time the decision was rendered. United States v. Johnson 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982).

This case raises the troublesome questions (i) whether petitioner’s conviction should be considered “final” within the meaning of Johnson and (ii) if not, whether the State has provided petitioner an opportunity for full and fair litigation of his claim within the meaning of Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) so as to preclude further review in a habeas corpus proceeding.

THE FACTS

On September 27, 1976, three men robbed the Newark Tobacco and Candy Company. During the course of the robbery, the store’s manager was shot and killed. The police, after ascertaining that petitioner’s car was used for the getaway, learned of his residence on September 28, and arrested him on September 29, at approximately 6:40 p.m.

At police headquarters, after being read his Miranda warnings and signing a waiver of Miranda rights, petitioner was interrogated for a period of time. He then met privately with one Denise Goode, to whom he apparently was married, and her child. From 10:30 p.m. on September 29 to 12:44 a.m. on September 30, police detectives took a detailed statement from petitioner in which he admitted participation in the robbery.

PROCEDURAL HISTORY

On February 28, 1977 petitioner moved to suppress a carton of cigarettes bearing the tax number used exclusively by the robbed store and found by police during a search of the petitioner’s car. At the hearing on the motion, the arresting officer, upon questioning by the prosecutor, affirmatively represented that there had been an armed robbery arrest warrant open for petitioner on September 29, 1976, for a previous robbery at a different establishment. (Suppression Hearing transcript at 73). The officer who searched petitioner’s car stated that such warrant existed for the petitioner’s arrest, (see Suppression transcript at 14). The arresting officer also testified that he did not have the arrest warrant in his possession at the time of petitioner’s arrest. (Suppression Transcript 77). Review of the transcript for the hearing on the motion to suppress reveals that the central issue addressed was whether the cigarette carton found in petitioner’s car should be suppressed and that the issue of the warrant’s validity was peripheral to the hearing.

In his opinion on the petitioner’s motion to suppress the trial court judge stated:

I find that a vehicle described as a 1968 or 1969 four-door brown Cadillac with license plate 512 FTV was observed fleeing the scene of the robbery. I find further that a check of the license plate number revealed that the car was registered to one Willie Jenkins, residing at 65 Mercer Street, for a 1971 red Oldsmobile. I find that there was a warrant issued for the arrest of Willie Jenkins albeit on a different offense than that for which he is presently charged to wit: Armed robbery.
I find that Willie Jenkins was arrested pursuant to said warrant ...
I find that the arrest was a lawful arrest. I find further that the inventorying of the contents of the vehicle was properly made. (Suppression Hearing transcript at 14-142).

At trial, petitioner did not challenge the validity of his arrest and specifically did not claim that a valid arrest warrant had not existed. At no time at or before trial did he object to the admission at trial of his confession as being the fruit of an illegal arrest. According to petitioner’s memorandum of law submitted with his petition, petitioner states that his trial counsel advised that it would be fruitless to raise any further legal arguments related to the arrest, because the trial judge had already ruled that the arrest was legal at the suppression hearing. (Plaintiff’s memorandum of law in support of petition at 25). In view of the law of New Jersey at that time concerning the need for an arrest warrant, the question of the existence of a warrant was of minor significance.

Petitioner appealed his conviction to the Appellate Division of Superior Court. On that appeal petitioner argued for the first time that his arrest was illegal because there was no valid warrant and that therefore his confession, given while in unconstitutional custody, should have been suppressed. Basing his arguments on testimony given by police officials to the grand jury which handed down the indictment against him and on police reports, petitioner argued on appeal that as of the time of his arrest on September 29, the police did not yet have information linking him to the prior offense on which the warrant was alleged to be based.

Assuming his arrest was illegal, petitioner went on to contend that the taint of the illegal arrest had not been purged by the time he made his confession. Petitioner further alleges that in their private meeting Ms. Goode informed him that police officers had threatened that unless petitioner confessed they were going to arrest her for receiving stolen property and put her child in a shelter.

The Appellate Division affirmed the judgment of conviction on November 19, 1979. The court noted that generally a claim that evidence obtained in violation of the Fourth Amendment was improperly admitted at trial will not be considered when presented for the first time on appeal. The court found no extraordinary circumstances suggesting that the claim should be entertained since it found petitioner’s claim that no valid warrant existed to be mere “speculation”.

The court went on to say in dicta that the police had probable cause to make a warrantless arrest of petitioner and that the New Jersey courts do not require a warrant to make an arrest on probable cause in a private residence. Finally, the court concluded that the confession was voluntary and that the “arrest had but minimal impact upon” the petitioner.

Petitioner then filed a petition for certification to the Supreme Court of New Jersey. Certification was denied on March 17, 1980.

In a letter dated March 25, 1980, the Public Defender’s Office of New Jersey informed petitioner that the Supreme Court of New Jersey had denied the petition for certification. The letter also advised petitioner that further review was possible by filing a petition for a writ of certiorari to the United States Supreme Court. The letter stated that such a petition had to be filed within ninety days of the date of the State Supreme Court’s order. The Public Defender’s Office advised that, alternatively the petitioner could file a pro se petition for habeas corpus relief with the Clerk of the United States District Court in Newark. The letter counseled that in light of the time limitation for filing a petition for certiorari, it would be advisable to pursue the certiorari petition before pursuing the habeas corpus petition.

On April 15, 1980, the United Supreme Court decided Payton v. New York, supra. At the time of the Supreme Court’s decision, petitioner could still have petitioned the United States Supreme Court for a writ of certiorari or re-petitioned the New Jersey Supreme Court for certification on the basis of Payton.

Instead, on May 23, 1980, petitioner filed a petition for post-conviction relief in the Law Division of Superior Court. In support of his petition petitioner relied on Pay-ton. At the conclusion of a hearing on October 17, 1980 the petition was denied. The decision was, as stated by the judge, based primarily on the limited scope of review in petitions for post-conviction relief and the fact that petitioner had not challenged the validity of his arrest at trial. As a secondary reason, the court stated that Payton was not retroactively applicable to petitioner’s case.

The determination of the Law Division was affirmed by the Appellate Division on May 20, 1982 on the ground that Payton need not to be given retroactive effect. Perhaps unaware that on June 21, 1982 the United States Supreme Court had decided United States v. Johnson, supra, the New Jersey Supreme Court denied petitioner’s petition for certification on July 14, 1982. This petition for a writ of habeas corpus ensued.

EXHAUSTION OF STATE REMEDIES

Before a district court may entertain an application for a writ of habeas corpus, the petitioner must have exhausted the remedies available for him in the state courts. 28 U.S.C. § 2254(b), (c). Petitioner appealed his conviction to the Appellate Division of the Superior Court and to the New Jersey Supreme Court. Petitioner filed a petition for post conviction relief and appealed the decision in these proceedings to the Appellate Division and the State Supreme Court. Petitioner has thus exhausted his state remedies and his petition for habeas corpus relief is now ripe for adjudication.

THE MERITS

Respondent urges that the trial court found that there was a valid warrant for petitioner’s arrest at the time he was arrested. Respondent further urges that under the holding of Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) this finding cannot be challenged in a habeas corpus proceeding.

Petitioner on the other hand, asserts that misrepresentations made by police officers misled the trial and appellate courts with respect to the validity of the arrest warrant and that as a result of such misrepresentations he was not provided with an opportunity for a full and fair litigation of his Fourth Amendment right guaranteed him under Powell. Although respondent’s two briefs do not confront petitioner’s assertions concerning police misrepresentations, I have examined the record to determine whether there is evidence to support his contentions.

At the February 28, 1977, hearing regarding the suppression of a cigarette carton found in petitioner’s car, police officers affirmatively represented that at the time of petitioner's arrest on September 29, there had been a warrant open for petitioner’s arrest for another crime, an armed robbery of the People’s Tavern in Newark, which allegedly had occurred on September 1, 1976. The existence of such a warrant would have made legal the otherwise warrantless arrest of petitioner on the homicide charge. The basis of petitioner’s misrepresentation charge is that the police had no evidence linking petitioner to the People’s Tavern robbery until after his arrest, and that therefore petitioner was arrested without a valid warrant. Specifically, petitioner contends that it was not until September 30, the day after his arrest, that the police obtained two pieces of evidence linking him with the Tavern robbery: 1) a statement of one of his alleged criminal partners, Julius Morris, that he had held up the tavern with petitioner and a third man and 2) a tentative photo identification of petitioner by Willie Tucker an eye-witness of the tavern robbery.

Testifying before a Grand Jury with respect to petitioner’s indictment, Detective George McDonald stated that he signed a complaint on September 27, 1976, charging Willie Jenkins, William Moore, and Julius Williams with the armed robbery of People’s Tavern. (Grand Jury Transcript at 2). Despite this initial statement, McDonald’s subsequent testimony raised the question of whether there was a valid warrant at the time of the arrest. Specifically, his testimony raised a question as to when the petitioner’s name was placed on the warrant.

McDonald testified that an eye witness to the Tavern robbery, Willie Tucker, assisted the Newark police in their investigation. According to McDonald, Tucker thought he recognized the robbers but was unable initially to identify possible suspects from the police photograph file (Grand Jury Transcript at 3). Further investigation of the robbery turned up the names of Julius Morris and “Waffle” as suspects (Id.) McDonald testified that he “had warrants made out for these two fellows [Julius Morris and a second suspect, William Moore] and a John Doe.” (Grand Jury Transcript at 3-4). McDonald’s continuation report confirms his Grand Jury testimony that Petitioner’s arrest warrant initially did not contain his name. (See Det. McDonald Police “Continuation Report”). McDonald then testified that on either September 29 or 30 Tucker made a positive photo identification of Morris and Moore and a tentative identification of petitioner as one of the three men who robbed the tavern (Grand Jury Transcript at 4).

Detective McDonald also testified before the Grand Jury that on the afternoon of September 30, 1976, Julius Morris, then in police custody, stated that he, Willie Jenkins, and William Moore had held up the People’s Tavern. (Grand Jury Transcript at 7; Continuation Report at 1-2).

McDonald did not testify nor did the Continuation Report state at what time or on what date the name on the arrest warrant was changed from “Richard Roe” to Willie Jenkins. But certainly, the testimony and other evidence that Tucker made his identification of Jenkins on the 29th or 30th and that Morris identified Jenkins on the 30th clearly raised the possibility that the police had nothing linking Jenkins to the tavern robbery at the time of this arrest on the 29th.

Thus there are factual issues whether a valid arrest warrant existed at the time of petitioner’s arrest and whether the police officers misled the trial court at the suppression hearing. An evidentiary hearing would be required to decide these questions, and for present purposes I assume that there was not a valid arrest warrant and that the police officers were at least in error when they testified that such a warrant existed.

Two other grounds which respondent urges for dismissal of the petition also involve factual inquiries which would have to be decided at an evidentiary hearing, namely, (i) that notwithstanding the unlawful arrest, there was insufficient nexus between the arrest and the confession to require suppression of the confession and (ii) exigent circumstances rendered petitioners arrest valid even if made without a warrant.

Turning to two questions which can be decided on the record before me, I conclude that Payton is retroactively applicable here, but that the principles of Stone v. Powell preclude petitioner from relitigating his Fourth Amendment claim in this proceeding.

Applying United States v. Johnson, supra, literally, petitioner’s conviction was not final at the time the decision in Payton was rendered. Although the New Jersey Supreme Court had denied his petition for certification, he still had the option to petition the United States Supreme Court for certiorari or to re-petition the New Jersey Supreme Court.

Respondent urges that petitioner, not having sought direct relief in either the United States or New Jersey Supreme Court, has forfeited his right to claim the retroactive effect of Payton: “at this stage, however, petitioner no longer is on direct appeal; his conviction is final. Thus, United States v. Johnson, making Payton retroactive to nonfinal judgements, does not apply”. (Respondent’s answer to Petition at p.1). The Court in Johnson recognized that even under its retroactivity approach “it may be unvoidable that some similarly situated defendants will be treated differently”, id, 457 U.S. at 556-57, fn. 17, 102 S.Ct. at 2590-91, fn. 17. However, I do not believe that this is a reason to disturb the language of Johnson. Payton applied because petitioner’s conviction was not yet final at the time the decision [in Payton ] was rendered.” id, 457 U.S. at 562, 102 S.Ct. at 2593.

Nevertheless, the question whether petitioner can raise his Payton claim is controlled by the nature of the proceedings in which he seeks to raise it. There is no question that he could have raised this issue in a petition for certiorari to the United States Supreme Court. It must be determined whether he can raise it here in a habeas corpus proceeding.

No challenge can be made that petitioner’s confession was involuntary or that it was inadmissable because of a Miranda violation. Miranda v. Arizona 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The only ground for its exclusion is that it followed an arrest which, in violation of the Fourth Amendment, was effected without a warrant. Thus the case is governed by Stone v. Powell, supra, which holds that “where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted habeas corpus relief on the ground that evidence obtained on an unconstitutional search or seizure was introduced at his trial”. 428 U.S. at 482. The reasoning behind Stone is that application of the exclusionary rule deflects from the truthfinding process, often freeing the guilty, and while deterrence of official misconduct supports implementation of the exclusionary rule at trial, “the additional contribution, if any, of the consideration of search- and-seizure claims of state prisoners on collateral review is small in relation to the costs” 428 U.S. at 493.

To satisfy the opportunity for the full and fair litigation requirement of Stone actual litigation of the Fourth Amendment claim is not required. Rather, Stone only requires that the state provide an opportunity to litigate regardless of whether the defendant actually takes advantage of it. Caver v. Alabama, 577 F.2d 1188, 1192 (5th Cir.1978); Gates v. Henderson, 568 F.2d 830 (2d Cir.1977), (en banc), cert. denied, 434 U.S. 1038, 98 S.Ct. 775, 54 L.Ed.2d 787 (1978). See also Boyd v. Mintz, 631 F.2d 247, 250 (3d Cir.1980).

It must be decided whether the State provided petitioner with an opportunity for full and fair litigation of his Fourth Amendment claim. Viewing the State proceedings both prior to trial and after trial, I conclude that petitioner was provided with this opportunity.

At the time of the suppression hearing New Jersey law permitted an arrest in a suspect’s home without a warrant if probable cause existed. Since Payton had not been decided there was no reason for petitioner’s attorney to challenge the arrest on constitutional grounds. Nevertheless petitioner’s attorney did raise the question of the existence of a valid warrant and examined the police witness on that subject. He did this as a part of his efforts to suppress evidence found in petitioner’s automobile. The judge hearing the motion found on the basis of the evidence that a valid warrant existed.

On appeal and post conviction relief proceedings petitioner challenged the truthfulness of the testimony given at the suppression hearing and produced evidence which suggested that at the time of petitioner’s arrest, the warrant was in “John Doe” form and did not name petitioner.

In the post conviction relief hearing the trial court heard petitioner’s factual and legal contention based on Payton, which by then had been decided. The trial court ruled against petitioner on retroactivity grounds which later proved to be an erroneous prediction of the United States Supreme Court’s position on retroactivity. Nevertheless it cannot be said that the New Jersey Courts failed to provide petitioner with a full and fair opportunity to litigate his Fourth Amendment claim.

In considering a petition for habeas corpus, “the question is not whether the trial court ‘correctly’ decided the Fourth Amendment issue, but whether the petitioner was given an opportunity for full and fair state court litigation of his Fourth Amendment claim”. United States ex rel. Petillo v. State of New Jersey, 562 F.2d 903, 906 (3d Cir.1977). In Petillo, the Court of Appeals reversed the district court’s overturning of a state trial judge’s credibility determination. The Court held that state court credibility findings should not be disturbed unless they are “inherently incredible.” Id. at 907. By analogy, the inability of the court hearing the post conviction relief application to predict the manner in which the United States Supreme Court would apply Payton does not render the proceeding less than full and fair. Troubling as it may be, the New Jersey Supreme Court’s apparent unawareness of the then recently issued opinion in United States v. Johnson, supra, when it denied certification does not render the proceedings less than full or unfair.

Thus I conclude that under Stone v. Powell, supra, petitioner may not raise his Fourth Amendment claim in a habeas corpus proceeding.

The petition will be dismissed without an evidentiary hearing. However, in view of the unusual circumstances of the case I shall certify probable cause for purposes of an appeal. I shall enter an appropriate order.

      . The suspects in the People’s Tavern robbery apparently used several aliases: According to McDonald’s Grand Jury testimony Julius Williams was also known as Julius Morris; William Moore was also known as "Waffle" and Alfred Moore.

      . The warrant to which Jenkins’ name was eventually added was actually a "Richard Roe" warrant. Fed.R.Crim P. 4(c)(1) as amended provides that a warrant "shall contain the name of the defendent or, if his name is unknown, any name or description by which he can be described with reasonable certainty.” N.J.Ct.Rule 3:3-2 as amended contains similar language. “John Doe” warrants fail to honor the principles in the Fourth Amendment and Fed.R.Crim P. 4. Even assuming that the officer swearing out a "John Doe” warrant has demonstrated probable cause to arrest someone, the warrant, by its terms, will allow the executing officer to make his own inference in effecting the arrest. For these reasons, "John Doe” warrants have been held illegal. United States v. Doe., 703 F.2d 745, 747 (3rd Cir.1983).


author: FILIPPINE, District Judge.

text:
    Raymond F. WEHNER, et al., Plaintiffs, v. SYNTEX CORPORATION, et al., Defendants.
    No. 83-642 C (2).
    United States District Court, E.D. Missouri, E.D.
    Dec. 26, 1984.
    See also, D.C., 622 F.Supp. 302.
    Murry A. Marks, John Doskocil, St. Louis, Mo., Arnold Levin, Laurence S. Berman, Alan Kanner, Philadelphia, Pa., Robert L. Driscoll, Kansas City, Mo., for plaintiffs.
    Paul S. Brown, St. Louis, Mo., George Weisz, New York City, F. Wm. McCalpin, Richard A. Ahrens, St. Louis, Mo., Hunton & Williams, Joseph M. Spivey, III, Richmond, Va., Stephen D. Busey, James J. Taylor, Jr., Smith & Hulsey, Jacksonville, Fla., Steven R. Baer/Brian G. Donohue, Environmental Enforcement Sec., Land & Natural Resources Div., U.S. Dept, of Justice, Washington, D.C., Cheryle Micinski, Asst. Regional Counsel, U.S. E.P.A., Kansas City, Kan., Keith Onsdorff/Ken Farber, Stuart Hunt/Julie Becker, U.S. E.P.A. Washington, D.C., John J. Cole, W. Munro Roberts, Jr., Ted L. Perryman, St. Louis, Mo., for defendants.
   MEMORANDUM AND ORDER

FILIPPINE, District Judge.

This matter is before the Court on the following motions: (1) motion to strike of Syntex Agribusiness, (2) plaintiffs’ substituted motion for class certification pursuant to Fed.R.Civ.P. 23, and (3) motion of Syntex Agribusiness to postpone consideration of plaintiffs’ substituted motion for class certification pending discovery and presentation of evidence.

This is a private action for response costs brought under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9607. Plaintiffs have demanded a jury trial. The type of relief available under CERCLA, however, is equitable in nature and thus a jury trial is not available. United States v. Northeastern Pharmaceutical and Chemical Co., 19 Env’t.Rep.Cas. 2186, 2187 (W.D.Mo. Sept. 30, 1983); United States v. Wade, 20 Env’t.Rep.Cas. 1853, 1855 (E.D.Pa. Feb. 21, 1984); United States v. Reilly Tar & Chemical Corp., 20 Env’t.Rep.Cas. 1052, 1056 (D.Minn. June 23, 1983). Defendant Syntex Agribusiness’s motion to strike plaintiffs’ demand for a jury trial is well taken and will be granted.

In addition to moving to strike the jury demand, Syntex Agribusiness requests this Court to strike various elements of relief. Syntex Agribusiness maintains that plaintiffs may not recover certain medical expenses, loss to property and post-relocation living expenses. These issues, however, are more properly presented to the Court after discovery and trial on the merits. The Court cannot on the basis of the record as it now stands declare that plaintiffs’ request for the type of costs listed above are redundant, immaterial, impertinent or scandalous. Fed.R.Civ.P. 12(f).

Plaintiffs seek this Court to certify a class; defendant Syntex Agribusiness argues that a ruling on plaintiffs’ motion should be postponed until it can take discovery relating to the requirements of class actions. This Court’s discovery stay is still in force pending disposition of the personal jurisdiction issue. Clearly defendants need the benefit of discovery in order to properly respond to plaintiffs’ motion. Thus, the Court will postpone consideration of plaintiffs’ motion for class certification pending discovery and presentation of evidence by the defendant Syntex Agribusiness. The Court’s stay on all discovery shall remain in effect, and a ruling on defendant Syntex Corporation’s motion to dismiss for lack of personal jurisdiction shall be forthcoming. The Court has received Syntex’s supplemental memorandum of law and exhibits dated December 12, 1984. Following ruling on Syntex’s motion the Court will issue an appropriate order relating to discovery. The Court declines to lift its stay so that Syntex Agribusiness may take discovery relating to the class action issue, in that such discovery would have to be duplicated by Syntex Corporation should this Court deny its motion to dismiss.

Accordingly,

IT IS HEREBY ORDERED that the motion of Syntex Agribusiness, Inc. to strike be and is GRANTED in part and DENIED in part.

IT IS FURTHER ORDERED that plaintiff’s demand for a jury trial be and is STRICKEN.

IT IS FURTHER ORDERED that defendant Syntex Agribusiness, Inc.’s motion to strike be and is otherwise DENIED.

IT IS FURTHER ORDERED that the motion of defendant Syntex Agribusiness, Inc. to postpone consideration of plaintiffs’ substituted motion for class certification pending discovery and presentation of evidence be and is GRANTED as indicated in the above memorandum.


author: DAUGHERTY, District Judge.

text:
    Lloyde E. HOWARD, Plaintiff, v. GROUP HOSPITAL SERVICE, an Oklahoma corporation, d/b/a Blue Cross and Blue Shield of Oklahoma, Defendant.
    No. CIV-80-733-D.
    United States District Court, W.D. Oklahoma.
    Dec. 28, 1984.

      Donald R. Wilson, Oklahoma City, Okl., James C. Bass, El Reno, Okl., for plaintiff.
    E. Bryan Henson, Jr., Tulsa, Okl., for defendant.
   ORDER

DAUGHERTY, District Judge.

Upon consideration of Plaintiffs Motion For Taxing Of Costs And Attorney Fees filed herein, and after said Motion has been briefed and oral arguments heard thereon, the Court finds that said Motion should be denied in its entirety for reasons hereinafter set forth.

COSTS

The Motion does not seek costs incurred in connection with the District Court trial as the same have been claimed, settled by the Clerk of this Court, not appealed and paid. This was affirmed at arguments.

The Motion does cover appellate costs. The United States Court of Appeals for the Tenth Circuit has allowed appellate costs in the amount of $65.00 and has filed with the Clerk of this Court a Statement Of Costs in that amount. The Motion under consideration claims two additional items of appellate costs in the form of $112.50 for court reporter transcript fee and $75.00 for fee paid to the Clerk of this Court for Plaintiffs Notice of Appeal. These are requested to be taxed in this Court pursuant to Rule 39(e), Federal Rules of Appellate Procedure. Rule 54(d), Federal Rules of Civil Procedure, and Local Court Rule 6 govern this request procedurally. Plaintiff acknowledged at arguments that he has not filed a Bill of Costs for these two appellate items directly with the Clerk of this Court. Hence, Plaintiff has not followed the prescribed procedure to submit in the first instance to the Clerk of the Court for taxation these items of claimed appellate costs. In these circumstances, this part of Plaintiff’s said Motion should be overruled without prejudice.

At arguments Plaintiff’s Counsel acknowledged that said Motion did not include a claim for costs in connection with the removal of this case from State Court; that any such costs would be included in one or more of the above cost proceedings. Therefore, there is no claim before the Court for costs under the Removal of Cases statutes, 28 U.S.C. § 1441 et seq.

ATTORNEY FEES

Plaintiff’s Motion under consideration claims attorney fees only because of the improvident removal herein. The Removal of Cases statutes, 28 U.S.C. § 1441 et seq. and particularly 28 U.S.C. § 1447(c), do not provide for the award of attorney fees should there be an improvident removal. Plaintiff’s claim is based on entitlement under the “bad faith” exception to the American Rule solely in connection with the improvident removal undertaken herein by the Defendant and Plaintiff also claims, in the alternative, a right to attorney fees because of the improvident removal under the inherent equity power of the Court, Hall v. Cole, 412 U.S. 1, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973), by virtue of what may be called the “in the interest of justice” exception to the American Rule found in certain removal cases.

In this case the Defendant in removing the action from State Court to Federal Court claimed federal question jurisdiction based on federal preemption of state law by certain federal statutes, extensive applicable federal regulations, the need for uniform federal decisions involving claims under Federal Employees Health Insurance contracts and strong federal interest in what benefits are payable under such contracts. Plaintiff filed a Motion to Remand, Briefs were filed and the Court denied the Motion to Remand holding that the Court had jurisdiction for the reasons claimed by the Defendant. The Court of Appeals, 739 F.2d 1508, disagreed stating that the federal government did not have an interest sufficient to justify invoking federal question jurisdiction.

The “bad faith” exception to the American Rule requires conduct on the part of the person against whom the exception is claimed amounting to bad faith, vexatious conduct, wantonness or oppressiveness. The bad faith exception is punitive and the penalty can be imposed only in exceptional cases and for dominating reasons of justice. The showing of a weak or legally inadequate case is not sufficient to invoke the exception. Neither is a finding of negligence, frivolity or improvidence. Cornwall v. Robinson, 654 F.2d 685 (Tenth Cir.1981); Schmidt v. National Organization For Women, 562 F.Supp. 210 (N.D.Fla.1983). It is the judgment and opinion of the Court that the circumstances of this case fall far short of meeting the requirements for the invoking of the “bad faith” exception to the American Rule. The Defendant upon removing the case presented, in the opinion of this Court, a substantial federal question which the Court adopted. Though the Court of Appeals disagreed, in the totality of circumstances and in the light of a claim for attorney fees, it is not believed that the Court should invoke the “bad faith” exception in this case. Accordingly, the claim for attorney fees under this exception should be denied.

The claim of Plaintiff for attorney fees under the “in the interest of justice” exception to the American Rule should also be denied in the opinion and judgment of the Court. The removal herein was not without substantial basis. There appeared to be a reasonable basis for federal question jurisdiction when the case was removed. The removal petition was not deceptive, nor was the removal an obviously bad removal. See Pack v. Rich Terminal Co., 502 F.Supp. 58 (D.Ohio W.D.1980). It should be noted that even a recovery of court costs, though statutorily authorized by 28 U.S.C. § 1447(c) to be allowed in the discretion of the Court upon an improvident removal, has been denied unless the removal was obviously bad, Dunkin Donuts of America v. Family Enterprises, Inc., 381 F.Supp. 371 (D.Md.1974), or when the removal petition presents a substantial federal question, Turner v. Bell Fed. Savings and Loan Assoc., 490 F.Supp. 104 (N.D.Ill., E.D.1980), or denied when removal was close and novel, Capital Cake Co. v. Lloyd’s Underwriters, 453 F.Supp. 1156 (D.Md.1978). It would seem that in any of these situations where court costs are denied it would logically follow that attorney fees should be denied. It is therefore the judgment and opinion of the Court that the facts and circumstances of this case under the claimed “in the interest of justice” exception to the American Rule, assuming it may be the law of our Circuit, are not sufficient to warrant the granting of attorney fees to Plaintiff. Accordingly, such claim on such ground should be denied.

There is no claim made herein for attorney fees under the common benefit or common fund exceptions to the American Rule.

Therefore, said Motion should be denied except that portion thereof seeking the taxation of certain appellate costs by the District Court should be denied without prejudice.

      . This Section reads:

        (e) Costs on Appeal Taxable in the District Courts. Costs incurred in the preparation and transmission of the record, the cost of the reporter’s transcript, if necessary for the determination of the appeal, the premiums paid for cost of supersedeas bonds or other bonds to preserve rights pending appeal, and the fee for filing the notice of appeal shall be taxed in the district court as costs of the appeal in favor of the party entitled to costs under this rule.

      . Under the American Rule which applies in federal courts, a party is not entitled to attorney fees unless the same are authorized by statute or provided for by contract between the parties. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). 28 U.S.C. § 1447(c) provides that the Court may order the payment of just costs in an improvident removal, but does not provide for the recovery of an attorney’s fee in such situation. No contract provision for attorney fees is claimed by Plaintiff.

      . See Grinnell Bros., Inc. v. Touche Ross & Co., 655 F.2d 725 (Sixth Cir.1981); Kasprowicz v. Capital Credit Corp., 524 F.Supp. 105 (E.D.Mich. S.D.1981).

      . The Court is not satisfied that our Circuit will embrace the Grinnell "in the interest of justice” exception to the American Rule. In utilizing such an exception to the American Rule, Grinnell said the Court was not applying the "bad faith" exception but something else, namely, the "in the interest of justice” exception. It may be that the "bad faith” exception and the "common fund” exception to the American Rule both come under the umbrella of the inherent equity power of the Court and that Grinnell is finding yet another exception to the Rule under such inherent equity power, namely, an “in the interest of justice" exception. But our Circuit in Cornwall says that the only way to get attorney fees in a wrongful removal situation is under the “bad faith” exception to the American Rule. Cornwall teaches:
      “This statutory standard of ‘improvidence’ is clearly less stringent than the ‘bad faith’ standard that must be met in order for a court to award attorney’s fees in cases of this nature (improvident removal).” (Emphasis added).