author: BENJAMIN F. GIBSON, District Judge.

text:
    PAW PAW WINE DISTRIBUTORS, INC., et al., Plaintiffs, v. JOSEPH E. SEAGRAM & SONS, INC., et al., Defendants.
    No. G84-911 CA
    United States District Court, W.D. Michigan, S.D.
    Feb. 28, 1985.
    Frederick M. Baker, Jr., Willingham, Cote’, Hanslovsky, Griffith & Foresman, East Lansing, Mich., for plaintiffs.
    Stephen D. Turner, Dykema, Gossett, Spencer, Goodnow & Trigg, Grand Rapids, Mich., for Seagram & Distillers.
    Stephen G. Schafer, Jaffe, Snider, Raitt & Heuer, P.C., Detroit, Mich., for O’Donnell Importing.
   OPINION

BENJAMIN F. GIBSON, District Judge.

Paw Paw Wine Distributors and Dixon Distribution Company had been direct distributors of wines produced by The Wine Spectrum brands. Paw Paw was a licensed distributor of several of these brands for twenty-five years. Dixon was licensed to distribute some brands for as long as thirty years. The most recent agreements between The Wine Spectrum and the plaintiffs were in writing and for a term of one year. Each agreement was to expire on February 29, 1984. In 1983, Seagram, Inc. acquired certain wineries owned by The Wine Spectrum. Subsequent to these acquisitions, Seagram conducted a review of the Michigan market for the former Wine Spectrum products.

On February 1, 1984, the president of Seagram, Richard Maher, notified Paw Paw and Dixon that, effective March -1, 1984 all sales would be on a month-to-month basis. The letter stated:

This is to notify you that The Seagram Wine Company, as successor to The Wine Spectrum, is reviewing all distribution arrangements on former Wine Spectrum brands. No date has been put on the completion of this review. Because of this, effective March 1, 1984, all of our sales of the former Wine Spectrum brands to you will be on a month-to-month basis. We will be in touch with you as this review progresses.

In addition to the written agreements, Paw Paw had an oral agreement for the distribution of “imported fine wines.”

It appears that the relationship between Seagram and the plaintiffs continued from March until June, 1984. On June 21 Seagram informed them by mailgram that “effective today, your distribution rights in the State of Michigan for the brands listed below are hereby withdrawn.” The brands specified in the mailgram are those covered by the written agreement with Seagram’s predecessor. The oral agreement covering the imported fine wines was terminated on July 3, 1984 when Seagram ordered its master distributor for the state, O’Donnell Importing Company, not to sell these wines to Paw Paw.

This action was filed on July 18, 1984 alleging breach of contract, violation of the Michigan Wine Franchise Act, unreasonable termination, and unjust enrichment. Now before the Court is a motion filed by the plaintiffs for a preliminary injunction.

This dispute is complicated by plaintiffs’ claim that the Wine Franchise Act,- which was enacted on June 26, 1984, applies to their contractual relationship with Seagram. The Act, M.C.L.A. § 436.30a., et seq., confers a variety of rights and remedies upon wine suppliers, such as Seagram, and wine wholesalers, such as the plaintiffs. Specifically, the plaintiffs allege that § 436.30c.(32), authorizing injunctive relief, requires courts to issue injunctions upon a showing that the Act has been violated, without regard to the traditional standards for injunctive relief. Alternatively, the plaintiffs allege that this court should apply the balancing of hardships test applied by the Second Circuit in Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197 (2d Cir.1970), contending that there is a relaxation of the irreparable harm requirement in dealer termination cases. Upon thorough consideration, the Court concludes that the traditional standards for injunctive relief apply to this case. The Court further concludes that the plaintiffs have failed to demonstrate that these standards are met, and their request is denied.

DISCUSSION

a. Injunctions under the Wine Franchise Act.

Injunctive relief is authorized under the Act by § 436.30c.(32), which states:

Upon proper application to the court, a supplier or wholesaler may obtain injunctive relief against any violation of this act. If the court grants injunctive relief or issues a temporary restraining order, bond shall not be required to be posted.

The plaintiffs contend that Seagram violated the Act’s requirements that termination be for cause, and then only after a notice period. See § 436.30c.(7). They argue that the language authorizing relief for “any violation of this section” evidences a legislative intent to make injunctive relief more freely available.

The Court notes that the statute is silent as to when injunctive relief should be granted. It merely says that such relief “may” be granted upon a showing that the Act has been violated. The plaintiffs cite 42 Am.Jur.2d, Injunctions, § 38, p. 776 in support of their position. However, that section makes clear that courts may disregard the traditional standards only “where specified conditions are made to appear.” The Court does not discern that the legislature has imposed a positive duty to grant injunctive relief under this section.

The plaintiffs also rely on Henderson v. Burd, 133 F.2d 515 (2d Cir.1943), where the district court’s issuance of a preliminary injunction under the Emergency Price Control Act was upheld. That court stated, “Where an injunction is authorized by statute it is enough if the statutory conditions are satisfied.” 133 F.2d at 517. However, the U.S. Supreme Court reached the opposite result in a subsequent case when passing on the same statutory provision in Hecht Co. v. Bowles, 321 U.S. 321, 64 S.Ct. 587, 88 L.Ed. 754 (1944). The statute in Hecht Co. provided:

Upon a showing that such person has engaged or is about to engage in any such act or practice, a permanent or temporary injunction or decree or restraining order shall be granted without bond.

50 U.S.C. § 925 (repealed 1956). That statute includes language couched in terms more mandatory than the statute at issue here. Yet the Court indicated a strong preference for maintaining flexibility when passing on requests for equitable remedies. In light of that preference, the Court held that when Congress intends to depart from traditional equity practice, its intention must be made unambiguous. This rule continues to apply. E.E.O.C. v. Anchor Hocking Corp., 666 F.2d 1037, 1043 (6th Cir.1981).

Although it is clear, as plaintiffs argue, that the legislature intended to authorize injunctions for violations of the Act, it is not clear that it intended to depart from the traditional equity requirements. At the motion hearing in this matter, plaintiffs’ counsel conceded that courts do have discretion to issue injunctive relief. When asked by the Court when that discretion should be exercised in a movant’s favor, counsel suggested that injunctions should issue when serious violations occur. The Court finds nothing in the statute to support this construction. Accordingly, the Court will not imply a legislative intent to depart from the traditional injunctive standards.

b. The Semmes standard.

The plaintiffs also allege that Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197 (2d Cir.1970) establishes a lower threshold for injunctive relief in dealer termination cases. Unlike the situation in the present case, termination of a dealership, such as the automobile dealership in Semmes, is tantamount to termination of a business altogether. In that situation the courts do not appear to have eliminated the requirement of irreparable harm. The threat of harm in such cases is made clear by the nature of the business relationship. Accord Stenberg v. Cheker Oil Co., 573 F.2d 921, 924 (6th Cir.1978) (applying Semmes where a terminated gas station lessee sought a preliminary injunction against oil company). The Second Circuit has established that in all cases, preliminary injunctive relief is available only where the movant has established proof that there is no adequate remedy at law. Jack Kahn Music v. Baldwin Piano and Organ, 604 F.2d 755, 762 (2d Cir.1979).

For the reasons that follow, this Court has concluded that plaintiffs have not carried the burden of demonstrating irreparable harm.

c. The traditional standards.

The traditional standards for preliminary injunctive relief are:

1) Whether the plaintiffs have shown a strong or substantial likelihood or probability of success on the merits;
2) Whether the plaintiffs have shown irreparable injury;
3) Whether the issuance of a preliminary injunction would cause substantial harm to others;
4) Whether the public interest would be served by issuing a preliminary injunction.

Usaco Coal Corp. v. Carbomin Energy, Inc., 689 F.2d 94, 98 (6th Cir.1982). The single most important consideration is whether the movant is likely to suffer irreparable injury if the injunction is not granted, thereby impairing the Court’s ability to fashion an effective remedy. Wright and Miller; Federal Practice and Procedure: Civil § 2948.

There is no proof before the Court indicating that damages are an inadequate remedy. The president of Paw Paw, Raymond M. Schincariol, submitted an affidavit wherein he predicts the termination will cause a decrease in sales and shelf space. Dixon’s secretary-treasurer, David Dixon, stated in his affidavit that his distributorship will lose customers for whom Dixon has developed a market for Seagram wines. Both Paw Paw and Dixon contend that, although they continue to sell other brands, the loss of the Seagram wines diminishes their ability to provide a “full-line” service to their customers.

However, the plaintiffs have presented no proof that they cannot obtain Seagram wines from other Michigan distributors, rather than directly from Seagram. O’Donnell, Seagram’s master distributor in this state, claims this is possible. In fact, Dixon infers that the wines are available from other sources but at higher prices. The Court concludes from this that the plaintiffs are not precluded from maintaining their full-line service. It appears to have become more expensive to do so as a result of Seagram’s conduct, a consequence which may ultimately be an item of damages. But the plaintiffs have failed to establish irreparable harm. Accordingly, this Court is of the opinion that damages are adequate. Accord Gordon’s Wine Distributing Co., Inc. v. Almaden Vineyards, Inc., No. G83-1076, slip op. (W.D.Mich. Jan. 9, 1984).

The plaintiffs having failed to establish that damages are inadequate, the Court need not consider the other equitable considerations. Friendship Materials, Inc. v. Michigan Brick, Inc., 679 F.2d 100, 103 (6th Cir.1982); Triebwasser and Katz v. American Telephone and Telegraph Co., 535 F.2d 1356, 1359 (2d Cir.1976). Accordingly, plaintiffs’ motion for a preliminary injunction is denied.

      . These brands include Paul Masson, Taylor California Cellars, Great Western, Taylor New York, and Monterey.

      . These brands include Barton & Geister, Brolio, Bersano, Ricasoli, Kindermann and Mumms.

      . The Wine Franchise Act was enacted five days after the plaintiffs received notice purporting to terminate their distribution agreements. There is some question whether the Act applies to the agreements at all, a question this Court need not resolve now. For present purposes, the Court holds only that the Act would not change the result reached here.

      . Transcript of hearing on plaintiffs’ motion for preliminary injunction, held December 11, 1984 at pp. 12-13.


source: Caselaw Access Project

author: JOHN P. MOORE, District Judge.

license: Public Domain

text:
    Francis HELMINSKI, Plaintiff, v. The SUPREME COURT OF COLORADO; The Honorable William H. Erickson, Chief Justice; The Honorable Jean E. Dubofsky; The Honorable Howard M. Kirshbaum; The Honorable George E. Lohr; The Honorable William D. Neighbors; The Honorable Joseph R. Quinn; The Honorable Luis D. Rovira, Justices; Individually and as Justices of the Supreme Court of Colorado, Defendants.
    Civ. A. No. 83-JM-2054.
    United States District Court, D. Colorado.
    Feb. 28, 1985.

      Mark W. Gerganov, Denver, Colo., for plaintiff.
    Cheryl J. Hanson, Asst. Atty. Gen., Denver, Colo., for defendants.
   ORDER

JOHN P. MOORE, District Judge.

This matter is before me on cross-motions for summary judgment. The issues have been fully briefed and the case is ready for determination. Jurisdiction lies pursuant to 28 U.S.C. § 1343. The question presented is whether Colorado can impose a residency requirement for admission to the state bar in light of the Privilege and Immunities Clause of Article IV of The United States Constitution. After consideration of all the arguments raised, I have concluded the question must be answered in the negative..

The facts relevant to this case are undisputed. The parties disagree only with respect to the legal conclusions to be drawn from the facts. Plaintiff is a resident of Michigan and a member of the Michigan State Bar. Defendants are the Supreme Court of Colorado and its justices in their official and individual capacities. Plaintiff sat for the Colorado bar examination in July, 1983, and was notified in October, 1983, that he had passed the exam. He subsequently wrote to the Clerk of the Colorado Supreme Court to inquire whether the court would waive the residency requirement for admission contained in Colo.R.Civ.P. 201.14(1). The rule states, in pertinent part, that “no applicant shall be admitted to the Bar of the State until such time as he or she has become a resident of Colorado....” The Clerk responded that the Court would not waive the residency requirement, and that those seeking admission after examination have 18 months from the date the results are announced to establish the residency requisite to admission. Defendants admit that plaintiff meets all the requirements for entry to the bar except the residency requirement. Plaintiffs amended complaint seeks a permanent injunction to enjoin the enforcement of the residency clause of Rule 201.-14(1) on the grounds that the residency requirement is unconstitutional.

Defendants raise threshold issues. They claim the maintenance of this action is barred by the operation of the doctrine of judicial immunity and by this court’s lack of authority to review, final judgments of a state court in judicial proceedings. There are two kinds of constitutional attacks which might be pursued by an unsuccessful bar applicant: “The first is a constitutional challenge to the state’s general rules and regulations governing admission; the second, is a claim, based on constitutional or other grounds, that the state has unlawfully denied a particular applicant admission.” Doe v. Pringle, 550 F.2d 596 (10th Cir.1976), cert. denied, 431 U.S. 916, 97 S.Ct. 2179, 53 L.Ed.2d 227 (1977). In the first type of attack, federal district courts may assert jurisdiction under 28 U.S.C. § 1343 to insure that generally applicable rules of procedure do not impinge on constitutionally protected rights. At the same time, a state court’s decision on an individual application may not be disturbed in an original suit in federal district court. In exercising its judgment on an individual petition, a state supreme court performs a judicial act, In re Summers, 325 U.S. 561, 65 S.Ct. 1307, 89 L.Ed. 1795 (1945), reviewable only by the United States Supreme Court on certiorari to the state court. MacKay v. Nesbett, 412 F.2d 846 (9th Cir.) cert. denied, 396 U.S. 960, 90 S.Ct. 435, 24 L.Ed.2d 425 (1969). Because a federal district court does not sit as an appellate court, it lacks jurisdiction to review state court actions denying individual admissions to the bar, even though the denial allegedly involves deprivation of constitutional rights. Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 736, 100 S.Ct. 1967, 1977, 64 L.Ed.2d 641 (1980); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983).

In this case, it is clear that the plaintiff states a general constitutional challenge to a specific regulation governing bar admission, alleging it infringes on liberties guaranteed by the Privileges and Immunities Clause. He does not seek review of a state court’s adjudication of his specific application for admission. Accordingly, I conclude that the attack is cognizable in this court.

The thrust of plaintiff’s complaint is that Colorado’s residency requirement improperly discriminates against nonresidents in violation of the Privileges and Immunities Clause. Because the regulation operates to deprive nonresident attorneys of the opportunity to earn a livelihood in this state, plaintiff urges that the analysis set out by the Supreme Court in Hicklin v. Orbeck, 437 U.S. 518, 98 S.Ct. 2482, 57 L.Ed.2d 397 (1978) is applicable, and he concludes the regulation falls under such review. In answer, defendants argue initially that because plaintiff failed to challenge the residency requirement before the state promulgating body prior to initiating this suit, this action is not an actual controversy over which this Court may exercise Article III jurisdiction. Defendants next argue that the Hicklin analysis is inapplicable in the instant case because of the special relationship between a sovereign state and lawyers authorized to practice within its borders. Finally, defendants urge that even if Hicklin is found to apply, the state has a “substantial reason” for treating nonresident bar applicants in a different manner than resident applicants. I will address these contentions in turn.

It is beyond dispute that admission of applicants to the bar of a state is a matter of local concern, governed in Colorado by rules and regulations promulgated by the state supreme court. It is equally clear, however, that federal courts have an obligation to exercise the jurisdiction granted by 28 U.S.C. § 1343 for the vindication of constitutional rights. Thus, a natural tension arises over the extent of a federal court’s authority to meddle in what is ostensibly a state concern.

As a prelude, it is clear every inquiry under the Privileges and Immunities Clause must “be conducted with due regard for the principle that the states should have considerable leeway in analyzing local evils and in prescribing appropriate cures.” Toomer v. Witsell, 334 U.S. 385, 396, 68 S.Ct. 1156, 1162, 92 L.Ed. 1460 (1948). This caution is particularly appropriate here because the interest implicated is the state’s interest in the regulation of its bar, a matter traditionally granted special deference by federal courts. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975). Further, I am philisophically disinclined in general to decide a matter of state concern before Colorado courts have had an opportunity to address the issue.

Upon reflection, however, I have identified two undeniable principles that operate to overcome my reticence to reach the merits of this suit. Initially, as a practical matter, because the highest court in Colorado is the promulgator of the rule and a party of this action, requiring the plaintiff to bring his ease in state court first would be an apparent exercise in futility. More importantly, consistent with the foregoing discussion regarding jurisdiction, I must conclude that plaintiff has properly invoked the jurisdiction of this court over constitutional claims by stating a general constitutional challenge to the residency requirement.

Turning to the merits of the complaint, application of the Privileges and Immunities Clause to a particular instance of discrimination against out-of-state residents entails a two step inquiry. As an initial matter, the Court must determine whether the regulation burdens one of those privileges and immunities protected by the Clause. Not all forms of discrimination against citizens of other states are constitutionally infirm.

Some distinctions between residents and nonresidents merely reflect the fact that this is a Nation composed of individual States, and are permitted; other distinctions are prohibited because they hinder the formation, the purpose, or the development of a single Union of those States. Only with respect to ‘privileges’ and ‘immunities’ bearing upon the vitality of the Nation as a single entity must the State treat all citizens, resident and nonresident, equally. Baldwin v. Montana Fish & Game Commission, 436 U.S. 371, 383, 98 S.Ct. 1852, 1860, 56 L.Ed.2d 354 (1978).

A state may discriminate on the basis of residency, for example, with respect to the right to vote, Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); the right to hold public office, Kanapaux v. Ellisor, 419 U.S. 891, 95 S.Ct. 169, 42 L.Ed.2d 136 (1974); and the right to receive some state services, Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). As a threshold matter, then, I must determine whether an out-of-state resident’s interest in being able to practice law in the State of Colorado is sufficiently “fundamental” to the promotion of interstate harmony so as to “fall within the purview of the Privileges and Immunities Clause.” Baldwin v. Montana Fish & Game Commission, 436 U.S. at 388, 98 S.Ct. at 1862.

It is clear the pursuit of a “common calling” is one of the most fundamental of those privileges protected by the Clause. Baldwin v. Montana Fish & Game Commission, 436 U.S. 371, 98 S.Ct. 1852, 56 L.Ed.2d 354 (1978). Accordingly, it is well-settled that a state may not premise the right to practice one’s chosen occupation within its borders solely on residence. Whether the discriminatory burden on nonresidents takes the form of unequal licensing fees, as in Toomer v. Witsell, 334 U.S. 385, 388, 68 S.Ct. 1156, 1158, 92 L.Ed. 1460 (1948), or employment preferences granted only to residents, as in Hicklin v. Orbeck, 437 U.S. 518, 98 S.Ct. 2482, 57 L.Ed.2d 397 (1978), the Clause operates to make the burden unconstitutional.

Defendants urge, however, that because of the peculiar nature of the legal profession, residency requirements for state bar admission differ from similar requirements for other commercial or professional livelihoods. Defendants have not specifically articulated, nor can I contemplate, however, a valid reason why the practice of law should be treated any differently than other occupations for purposes of applying the Privileges and Immunities Clause. The Supreme Court has held that the practice of law is squarely outside the range of occupations implicating state sovereignty. In re Griffiths, 413 U.S. 717, 728-29, 93 S.Ct. 2851, 2858-59, 37 L.Ed.2d 910 (1973). Following in this vein, the majority of Courts that have addressed the issue have concluded that “despite its historical antecedents as a learned profession somehow above that of the common trades, [the practice of law] is but a species of those commercial activities within the ambit of the [Privileges and Immunities Clause]” Gordon v. Committee on Character & Fitness, 48 N.Y.2d 266, 422 N.Y.S.2d 641, 397 N.E.2d 1309 (1979). Accord, Strauss v. Alabama State Bar, 520 F.Supp. 173 (D.Ala.1981); Stalland v. South Dakota Board of Bar Examiners, 530 F.Supp. 155 (D.S.C.1982); Piper v. Supreme Court of New Hampshire, 723 F.2d 110, 114-15 (1st Cir.1983), appeal pending, No. 83-1466, argued 10/31/84. It is of interest to note that the list of fundamental rights compiled in Corfield v. Coryell, the first major case decided under the Privileges and Immunities Clause, and adopted by the Supreme Court in Baldwin, included “the right of a citizen of one state to pass through, or to reside in any other state for purposes of trade, agriculture, professional pursuits, or otherwise; ...” Baldwin v. Montana Fish & Game Commission, 436 U.S. 371, 384, 98 S.Ct. 1852, 1860, 56 L.Ed.2d 354, quoting Corfield v. Coryell, 6 Fed.Cas.No. 3,230 p. 546 (C.C.E.D.Pa.1823). (Emphasis supplied.)

The conclusion that the disputed regulation discriminates against a protected privilege is only the first step of the inquiry. The privilege is not absolute and does not preclude discrimination where there is a “substantial reason” for difference in treatment. The inquiry in each case must be concerned with whether such reasons do exist and whether the degree of discrimination bears a close relation to them.” Toomer v. Witsell, 334 U.S. 385, 396, 68 S.Ct. 1156, 1162, 92 L.Ed. 1460 (1948). As part of this justification, nonresidents must be shown to “constitute a peculiar source of the evil at which the statute is aimed.” Id. at 398, 68 S.Ct. at 1163. Put another way, the “substantial reason test permits disparate treatment, but only where the very fact of their non-residence demonstrably creates problems for legitimate state objectives that cannot be remedied in less discriminatory ways.” L. Tribe, American Constitutional Law § 6-33, p. 410 (1978).

The first justification asserted by the defendants for imposition of the residency requirement is a concern that a large and powerful out-of-state bar could exert significant influence over the decisions, practices, and makeup of a state’s bar to the detriment of local needs and conditions. Because Colorado characteristically receives numerous applications from persons residing in distant states, a second justification for the rule is that the absence of physical proximity would make it difficult for the state to police out-of-state bar members and create an inconvenience for the courts of this state in terms of the out-of-state attorneys’ availability. A final reason asserted is that the residency requirement is a reasonable method of avoiding the harmful consequences that could flow from a rule permitting persons who would never live in Colorado to become full-fledged members of the bar.

There is no dispute that Colorado has a valid interest in assuring that attorneys admitted to its bar are legally competent and ethically fit. Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957). However, in the case before me, defendants concede that plaintiff has demonstrated the requisite character and knowledge of the law to be admitted. The only basis for his exclusion is that his state of residence is Michigan and not Colorado. In this factual context, the asserted justifications fall under analysis.

The requirement of residency adds little to other measures of competency and professionalism since the period of residency is not used to observe and evaluate candidates. The response that the period of residency gives lawyers an opportunity to become familiar with local nuance and custom is of little weight when one realizes that any newly qualifying lawyer is likely to be hampered at the outset of his or her practice by lack of experience with the intricacies of state practice and procedure. See Stalland v. South Dakota Board of Bar Examiners, 530 F.Supp. at 159-60; Piper v. Supreme Court of New Hampshire, 723 F.2d at 116. The asserted justifications are further undercut by the knowledge that the residency rule does not require continuing residency as a condition of bar membership, but only residency at the time of admission, combined with an intent to remain. In effect, this permits bar members to leave the state immediately after admission without forfeiting their membership and undercuts the state’s arguments that residency insures a measure of quality-control necessary to the fair and efficient administration of justice in this state. Indeed, the lack of a continued residency requirement really makes the distinctions the state would like to draw between resident and nonresident lawyers distinctions without difference. Finally, I note the obvious in concluding that a lawyer’s professional integrity cannot be logically linked with the lawyer’s state of residence. In re Griffiths, 413 U.S. at 724, 93 S.Ct. at 2856.

Even assuming that the asserted justifications warrant treating nonresident applicants for bar membership differently than resident applicants, there are clearly more tailored means to guard against the specific dangers created by the admission of nonresidents. In other words, there is simply no basis for concluding that the state must exclude all nonresidents from admission in order to vindicate its undoubtedly legitimate interest in maintaining high professional standards. The state may and does impose continuing legal education requirements to insure a basic knowledge of local practice and rules. Standards for professional conduct and trial practice may be enforced by disciplinary committees. The Court may appoint the clerk for service of process, or use the Colorado long-arm statute for contempt proceedings to make disciplinary proceedings against nonresidents no more burdensome than against residents. Further, the Court might require that nonresidents maintain an office or affiliate themselves with lawyers within Colorado.

In light of the availability of these more tailored means to insure the state’s legitimate interest in maintaining high professional standards, it is difficult not to conclude that the absolute exclusion of nonresidents is intended, in part, to protect the state market for legal services from outside competition. It is against precisely this kind of parochialism and economic protectionism that the Privileges and Immunities Clause is intended to protect.

Upon the foregoing, it is

ORDERED that defendants’ motion for summary judgmént is denied.

FURTHER ORDERED that plaintiff’s motion for summary judgment is granted. The residency requirement established by Colo.R.Civ.P. 201.14(1) is unconstitutional and the defendants are permanently enjoined from enforcing the requirement.

FURTHER ORDERED that a hearing on plaintiff’s application for attorney fees is set for one half hour on March 25, 1985 at 8:00 a.m. The parties may file concise briefs directed to the issue on or before March 18, 1985.


author: BAKER, Chief Judge.

text:
    WRONKE, Kenneth L., Plaintiff, v. MARSH, John O., in his capacity as Sec. of Army; McGiffert, Lt. General John R., in his capacity as Commander of Fifth Army of USA; Printen, General Kenneth, in his capacity as Commander of 30th General Hosp., US Arm Reserve; Brewer, Col. Robert L., USA Reserve Beachem, Lt. Col. Paul J., US Army Rosengard, Lt. Col Dennis D. and Delannoy, Lt. Col. Clarence W., U.S. Army Reserve, Defendants.
    No. 83-2339.
    United States District Court, C.D. Illinois, Danville Division.
    Feb. 28, 1985.
    As Amended April 24,1985.

      J. Steven Beckett, Reno, O’Byrne & Kepley, Champaign, 111., for plaintiff.
    Charlene A. Quigley, Asst. U.S. Atty., Danville, Ill., Lt. Colonel Charles R. Fulbruge II, Lt. Col. Joyce E. Peters, Dept, of the Army, Washington, D.C., for defendants.
   ORDER

BAKER, Chief Judge.

I. FACTUAL BACKGROUND AND PRIOR PROCEEDINGS

The plaintiff, Kenneth L. Wronke, was a major in the United States Army Reserve until May 27, 1982, when he received a General Discharge for violating Army Regulation (AR) 135-175 Paragraphs 2-12(d) and 2-12(o), because he had misrepresented his qualifications as a military pilot in endeavoring to obtain a commercial pilot’s license from the Federal Aviation Administration (FAA) and because his conduct was unbecoming an officer.

After the plaintiff received his commercial pilot’s license from the FAA in October 1977, the FAA became aware that Wronke was not a “Rated Army Aviator”, as he represented in his license application. His civilian commercial pilot’s license, therefore, was revoked in August 1978 and the plaintiff was not allowed to apply again for the commercial license for one year. The revocation was upheld by the National Transportation Safety Board (NTSB) in November 1978; it determined, however, that the plaintiff had not acted willfully in his misrepresentations, and therefore he could apply again for the civilian license without waiting a year. Wronke did so apply and he subsequently received a civilian commercial pilot’s license.

On December 7, 1979, the plaintiff was notified by the Commander of the Fifth Army that an Officer Elimination Action had been initiated against him because of his violations of Paragraphs 2-12(d) and 2-12(o) of AR 135-175. The Elimination Board after considering testimony and exhibits, voted unanimously on January 10, 1981, to recommend Wronke’s elimination from the United States Army Reserve with a General Discharge under Honorable Conditions. The Board’s recommendation was reviewed and accepted by the Commander of the Fifth Army. In June, 1982, the plaintiff received a discharge order effective June 14, 1982.

On July 2, 1982, the plaintiff filed a complaint with this court, No. 82-2218, seeking declaratory and injunctive relief. Wronke alleged that the Army had violated its own regulations in convening and carrying out the Elimination Board’s hearing; Wronke also challenged the hearing proceedings on procedural and substantive due process grounds. In an opinion accompanying the dismissal without prejudice of the plaintiff’s action, the court found that the plaintiff had not exhausted his intraservice administrative remedies under 10 U.S.C. § 1552 as he had not appealed the Elimination Board’s decision to the Army Board for Correction of Military Records (ABCMR). The court further found that a preliminary injunction was not warranted, as the court was unable to find irreparable injury or absence of an adequate remedy at law. See Order of July 29, 1982, No. 82-2218. The Court of Appeals for the Seventh Circuit affirmed this court’s decision in an unpublished order, No. 82-2248, entered June 1, 1983. 714 F.2d 147.

Pending the appeal to the Seventh Circuit, the plaintiff sought review from the ABCMR. On April 8,1983, a memorandum of consideration and decision of the ABCMR was issued to the plaintiff, denying the plaintiff’s request for correction of his military records to show that the action taken to discharge him from his commission in the United States Army Reserve was void and of no force or effect. On August 11, 1983, the plaintiff again filed a complaint with this court. On October 2, 1984, the plaintiff moved for summary judgment; on December 3, 1984, the defendants’ cross-moved for summary judgment in favor of the defendants, stating that there is no genuine issue as to any material fact and that the defendants are entitled to a judgment as a matter of law.

II. JURISDICTION

The plaintiff alleges that this court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343, in that the controversy arises under the constitution and laws of the United States. This is an action pursuant to 28 U.S.C. § 2201 and 2202 to secure declaratory relief, and to secure equitable relief pursuant to 5 U.S.C. § 705. The court finds that it has jurisdiction under these provisions. The court also notes that the Mandamus Act, 28 U.S.C. § 1361, gives the district courts “original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States to perform a duty owed to the plaintiff.” Flynn v. Shultz, 748 F.2d 1186, 1189 (7th Cir.1984). Courts have held that this statute confers jurisdiction over a suit for declaratory and injunctive relief from a discharge allegedly made in violation of Army regulations. Konn v. Laird, 460 F.2d 1318, 1319 (7th Cir.1972); Jones v. Alexander, 609 F.2d 778, 781 (5th Cir.1980) cert, denied 449 U.S. 832, 101 S.Ct. 100, 66 L.Ed.2d 37 (1980); Woodard v. Marsh, 658 F.2d 989, 992 (5th Cir.1981). The statute also confers jurisdiction over allegations that the Army failed to perform duties imposed by the Constitution. See Konn, 460 F.2d at 1319 (the failure of the Army to follow its own regulations constitutes a deprivation of due process, and mandamus is available to remedy the consequences thereof); see also Woodard, 658 F.2d at 992. This court, therefore, has jurisdiction over Wronke’s claims for declaratory and injunctive relief.

This court also has jurisdiction over Wronke’s monetary claims. The Tucker Act gives district courts original jurisdiction of a “civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the constitution, or any Act of Congress, or any regulation of an executive department....” 28 U.S.C. § 1346(a)(2). In an amendment to his complaint, filed February 13, 1984, Wronke waived all claims for damages in excess of $9,999.99. Therefore, the court has jurisdiction of his monetary claims.

III. REVIEWABILITY

Having determined that this court possesses jurisdiction to hear this case, the question becomes whether the court should review the military decision to terminate the plaintiff’s position in the United States Army Reserve. Decisions of the ABCMR “denying corrective action” are reviewable by the federal courts. See Diliberti v. Brown, 583 F.2d 950, 952 (7th Cir.1978); Ballenger v. Marsh, 708 F.2d 349, 350 (8th Cir.1983); Neal v. Secretary of Navy, 639 F.2d 1029, 1036-37 (3rd Cir.1981); Matlovich v. Secretary of Air Force, 591 F.2d 852, 859 (D.C.Cir.1978); Hodges v. Callaway, 499 F.2d 417, 423 (5th Cir.1974); Sanford v. United States, 399 F.2d 693, 694 (9th Cir.1968). In determining whether to review internal military decisions, a federal court should first determine whether the plaintiff has exhausted his intraservice administrative remedies and has properly alleged that the military has violated the constitution, a statute, or its own regulations; second, the court must balance sufficiency of the complaint against the policies contravening for review. Mindes v. Seaman, 453 F.2d 197, 201-02 (5th Cir.1971). See Helm v. State of California, 722 F.2d 507, 509-10 (9th Cir.1983); Rucker v. Secretary of Army, 702 F.2d 966, 969 (11th Cir.1983); Nieszner v. Mark, 684 F.2d 562, 563-64 (8th Cir.1982), cert. denied 460 U.S. 1022, 103 S.Ct. 1273, 75 L.Ed.2d 494 (1983); Johnson v. Reed, 609 F.2d 784, 789 (5th Cir.1980). As the plaintiff has appealed the Elimination Board’s decision to the ABCMR and the appeal was denied, the plaintiff has exhausted his intraservice administrative remedies pursuant to 10 U.S.C. § 1552. The plaintiff has also properly alleged that the Elimination Board and the ABCMR violated his rights under the Constitution and that they violated their own regulations.

In balancing the sufficiency of the complaint against the policies contravening review, the district court must look to the following factors: (1) the source and weight of the plaintiff’s challenges; (2) the injury to the plaintiff if relief is denied; (3) the amount of interference with military matters if relief is granted; and (4) the degree to which expertise and discretion is involved. See Mindes, 453 F.2d at 201-02; Rucker, 702 F.2d at 969; Johnson v. Reed, 609 F.2d at 789.

Wronke’s claim is a substantial one. The substance of Wronke’s claims is that the Elimination Board failed to follow the proper hearing procedures in deciding his case. More specifically Wronke claims the Elimination Board failed to follow Army regulation 135-175 Para. 2-5(a), which would have required a finding that he had not in fact violated AR 135-175 Pars. 2-12(d) and 2-12(o). Review is particularly appropriate where a challenged action is alleged to have violated a particular service’s own regulation. See Konn v. Laird, 460 F.2d at 1319; Hickey v. Commandant of Fourth Naval District, 461 F.Supp. 1085, 1091 (E.D.Pa.1978). Wronke’s claim of violation of due process stems directly from the question whether he was entitled to certain rights under the applicable Army regulations and for this court to make that determination it would have to go no further than an examination of the Army regulations.

As to the second factor, injury to the plaintiff if relief is denied, this court finds that the harm that would flow to the plaintiff is substantial, and would include reduction or elimination of certain veteran benefits, loss of promotion, and of course, discharge from the Army Reserve itself.

As to the third factor, the amount of interference with military matters if relief is granted, the court finds that any interference would be minimal as any order to be issued from this court would only require the Army to follow its own regulations.

As to the fourth factor, the degree to which military expertise and discretion is involved, the language of the regulations regarding the procedures and standards to be employed during the Elimination Board hearing does not involve any military expertise and the Elimination Board’s discretion in the implementation of the regulations is limited.

The court, therefore, finds that Wronke’s claims of violation of due process and Army regulations are appropriate for review.

IV. MERITS

Once it has been determined that review is proper, the standard for review of actions and procedures of a Military Records Corrections Board is whether the actions and procedures were arbitrary, capricious, unsupported by substantive evidence, or contrary to law and regulation. See Dilley v. Alexander, 603 F.2d 914, 920 (D.C.Cir.1979); Nolen v. Rumsfeld, 535 F.2d 888, 890 (5th Cir.1976), cert. denied 429 U.S. 1104, 97 S.Ct. 1133, 51 L.Ed.2d 556 (1977); ben Shalom v. Secretary of Army, 489 F.Supp. 964, 971 (E.D.Wisc.1980); Kalista v. Secretary of Navy, 560 F.Supp. 608, 612 (D.Colo.1983); Dumas v. The President of the United States, 554 F.Supp. 10, 16 (D.Conn.1982). Review of the actions and procedures of the ABCMR is not limited to the record of the Corrections Board; the record of previous precedings before other military bodies may also be reviewed. See Kalista, 560 F.Supp. at 612.

While the plaintiff’s complaint for declaratory and injunctive relief raises numerous claims for violation of the plaintiff’s rights under the Fifth Amendment due process clause as well as concerning the Elimination Board’s failure to follow several different Army regulations, this court will focus on only one claim of the plaintiff which the court finds to be dispositive of the case at hand.

AR 135-175 Para. 2-5(a) provides that “no officer will be considered for elimination for the reasons in Paragraph 2-11 or 2-12 because of conduct that has been the subject of judicial proceedings resulting in an acquittal based on the merits of the case or in an action having the same effect.” In proceedings before the NTSB, concerning the revocation of the plaintiff’s commercial pilot’s license by Administrative Law Judge Fowler on October 27, 1978, the revocation of the license was upheld by the NTSB. An order by the ALJ that prohibited the plaintiff from applying for a new license for a one-year period was vacated, however. The NTSB stated that:

In the absence of any probative evidence that respondent’s application was based on a deliberate intent to mislead the FAA, we are not persuaded that barring a new application for a full year would serve any meaningful safety purpose.

See NTSB Opinion and Order, No. EA-1211 (adopted November 13, 1978).

The plaintiff claims that in the officer elimination action before the Elimination Board, the substance of the charged offenses against the plaintiff required proof of intentional misrepresentation or knowing fraudulent conduct. The plaintiff states that the finding the NTSB that there was no probative evidence that the respondent’s application to the FAA was based on any deliberate intent to mislead, has the same effect as an acquittal and under AR 135-175 Par. 2-5(a) should therefore serve as a bar to the elimination action. The ABCMR specifically found, however, that the “decision made by that Board [NTSB] was not binding on the military”. See ABCMR Memorandum of Consideration and Decision, Docket No. AC82-10426 (January 12, 1983) at 6.

The defendants claim that the ABCMR and Elimination Board were not bound by the NTSB decision. They state that “[t]here is no doctrine of administrative collateral estoppel, and the board of officers was not bound by the independent although related findings of the NTSB.” See Memorandum of Points and Authorities in Support of Defendants’ Opposition to Plaintiff's Motion for Summary Judgment and Defendants’ Cross-Motion for Summary Judgment, at 23. The defendants allege that the NTSB proceedings were not judicial proceedings, and they were also •not “an action having the same effect” under the provisions of AR 135-175, Para. 2-5(a). Defendants opine that the thrust of the provision is to prevent an elimination action against an officer who has been successful in judicial proceedings whether as the result of an acquittal or of some other action, such as a dismissal at trial on certain motions that have the same effect.

Although a district court’s scope of review is limited where military decisions are involved, a court may review such decisions to insure that military regulations are followed. White v. Callaway, 501 F.2d 672, 674 (5th Cir.1974); Wells v. Commander of Third Battalion, 441 F.Supp. 336, 339 (E.D.Mo.1977). Where the meaning of a regulation is in question, the Army’s own interpretation of its regulations must be given controlling weight unless it is plainly erroneous or inconsistent with the regulation. See Harris v. Brown, 470 F.Supp. 250, 253 (W.D.Mo.1979) (citing U.S. v. Larionoff, 431 U.S. 864, 97 S.Ct. 2150, 53 L.Ed.2d 48 (1977)); see Hodges v. Callaway, 499 F.2d at 423 (Army ought to be primary authority for the interpretation of its own regulations). If the applicable regulations are interpreted by the Army in a reasonable manner, any charge of procedural irregularity must fail even though the petitioner may present another reasonable interpretation of the regulations. See Cunningham v. Hoffman, 420 F.Supp. 325, 328 (M.D.Tenn.1976). Thus where a military regulation is susceptible to equally reasonable constructions, a court may not substitute an alternative interpretation for the interpretation of the military service. See McCourt v. Culkin, 473 F.Supp. 1247, 1250 n. 6 (E.D.Pa.1979) (citing Keister v. Resor, 462 F.2d 471 (3rd Cir.1972), cert. denied 409 U.S. 894, 93 S.Ct. 116, 34 L.Ed.2d 151 (1972)).

The court, however, does not find the Army’s interpretation of AR 135-175 Para. 2-5(a) to be a reasonable interpretation and the court instead finds that the Army’s interpretation is plainly erroneous and inconsistent with the wording of the regulation. The court has examined the opinion and order of the NTSB and finds it to be “an action having the same effect” as a “judicial proceeding resulting in an acquittal based on the merits”. The court finds the defendants’ reading of AR 135-175 Para. 2-5(a) to be untenable. It is apparent to the court that the “action having the same effect” phrase in the paragraph refers to proceedings with results that are similar to judicial proceedings resulting in an acquittal based on the merits. The opinion and order of the NTSB is such an action and therefore any finding by that body would be binding upon the Elimination Board and the ABCMR under Para. 2-5(a).

In the NTSB proceedings it was found that there was an absence of any probative evidence that Wronke’s application to the FAA for a commercial pilot license was based on any deliberate intent to mislead the FAA and was more the result of the lack of an understanding of pertinent FAA and military standards. The charges against plaintiff Wronke in the Board’s elimination hearing, whose decision to eliminate the plaintiff was subsequently approved by the ABCMR, were based on AR 135-175 Paras. 2-12(d) and 2-12(o). Paragraph 2-12(d) states that an officer may be eliminated from the Army Reserves where he has committed an “intentional omission or misstatement of facts in official statements or records, for the purpose of misrepresentation.” The finding by the NTSB, that there was no probative evidence that Wronke’s application was based on a deliberate intent to mislead, bars under AR 135-175 Para. 2-5(a) a finding that Wronke “intentionally omitted or misstated facts and official statements or records for the purpose of misrepresentation.” AR 135-175 Par. 2-5(a) operates to estop a finding by the Elimination Board and the ABCMR that Wronke intentionally omitted or misstated facts in his application for a commercial pilot’s license for the purpose of misrepresentation of his past military flying record.

The plaintiff Wronke was also charged under AR 135-175 Para. 2-12(o), which states that reserve officers may be eliminated for “conduct unbecoming an officer.” The defendants have argued that even if the findings by the NSTB are determined to estop the application of 2-12(d) to Wronke, the NTSB determination still does not estop any decision by the Elimination Board that Wronke’s conduct was unbecoming an officer. The defendants claim that the Elimination Board considered other questionable conduct of Wronke besides the application for the commercial pilot’s license in its determination that he committed conduct unbecoming an officer. An examination of the transcript of the Elimination Board hearing, however, demonstrates that the Elimination Board determined that Wronke had committed conduct unbecoming an officer because he had intentionally misstated his service flight record for the purpose of misrepresentating himself to the FAA. See Officer Elimination Board Hearing Transcript, In the Matter of: Major Kenneth L. Wronke (January 10, 1981) at 213-227. As the substance of the Elimination Board’s finding of conduct unbecoming an officer relied on the determination that plaintiff Wronke had deliberately intended to mislead the FAA, the findings of the NSTB also operate, pursuant to AR 135-175 Para. 2-5(a), to estop the Elimination Board’s determination that Wronke had committed conduct unbecoming an officer.

V. CONCLUSION

The court finds that the ABCMR and the Elimination Board failed to follow AR 135-175 Para. 2-5(a), which required them to give full faith and credit to the determination of the NTSB that Wronke had not deliberately intended to mislead the FAA in his application for a commercial pilot’s license. If the Elimination Board and the ABCMR had complied with AR 135-175 Para. 2-5(a), the charges against Wronke would have been dismissed. The discharge order given to the plaintiff, effective June 14, 1982, is therefore vacated. The defendants are ordered to reinstate the plaintiff to all rank and privileges to which he would have been entitled but for the proceedings before the Elimination Board and his subsequent discharge. The defendants are also ordered to tender to the plaintiff all back pay owed to him not exceeding the amount of $9,999.99. The Clerk shall enter judgment accordingly.

IT IS SO ORDERED.

       Rather, it appears the application was more the result of a lack of understanding of pertinent FAA and military standards.


author: BISSELL, District Judge.

text:
    JERSEY PAVING COMPANY, INC., Plaintiff, v. FIDELITY & DEPOSIT COMPANY OF MARYLAND, et al., Defendants. (3 cases). Earl B. PANCOAST, Plaintiff, v. FIDELITY AND DEPOSIT COMPANY OF MARYLAND, et al., Defendants.
    Civ. A. Nos. 84-2431 to 84-2433, 84-3926.
    United States District Court, D. New Jersey.
    March 1, 1985.
    As Amended April 11, 1985.
    Michael D. Capizola, Capizola & Fineman, Vineland, N.J., for Jersey Paving Co.
    Robert Edwards, Mount Holly, N.J., for Fidelity & Deposit Co. of Md.
    John G. Hoffman, Salem, N.J., for Earl B. Pancoast.
    Raymond H. Zane, Woodbury, N.J., for Lower Alloways Creek.
   OPINION

BISSELL, District Judge.

At issue before the Court is the question of whether removal jurisdiction exists in each of the above cases pursuant to 28 U.S.C. § 1441(c). The non-resident removing defendant in each action (Fidelity & Deposit Company of Maryland — “Fidelity”) asserts that any claim against it as a bonding company is “a separate and independent claim or cause of action, which would be removable if sued upon alone,” accordingly “the entire case may be removed.” Ibid. One plaintiff (Earl B. Pancoast) opposes removal jurisdiction in this Court. Of course, since the present question involves the Court’s jurisdiction over the subject matter, it may be addressed at any time and should be considered by this Court sua sponte even in those three actions where no party is objecting to removal. Fed.R. Civ.P. 12(b)(1), 12(h)(3).

A brief description of the claims and procedural history of each action is appropriate:

(1.) Jersey Paving Company, Inc. v. Fidelity & Deposit Company of Maryland and County of Camden, USDC DNJ Civil No. 84-2431.

This action was originally filed on or about April 16, 1984 in the Superior Court of New Jersey, Chancery Division, Camden County, SCNJ Docket No. C1942-84. The Complaint is in two Counts, both emanating out of Contract No. 83-8043C between Marandino Construction Co., Inc. (the prime contractor) and the County of Camden. Plaintiff allegedly is a paving subcontractor of Marandino which has been declared bankrupt. Plaintiff seeks payment of $16,000 for its work' on “the construction of Collings Avenue, Camden County, New Jersey.” The First Count is against the County of Camden to enforce a municipal mechanic’s lien under N.J.S.A. 2A:44-146. The Second Count is against Fidelity (admittedly a Maryland corporation) upon its “performance and payment bond- guaranteeing that Marandino ... would make payment in full to all subcontractors.” Defendant Fidelity filed an Answer in the state court and then removed the action to this forum on grounds of diversity of citizenship, alleging in its petition that the claims against it in the Complaint were “separate and independent claims and causes of action,” from those against the co-defendant. Petition for Removal, ¶ 5.

(2.) Jersey Paving Company, Inc. v. Fidelity & Deposit Company of Maryland and New Hanover Township, USDC DNJ Civil No. 84-2432.

This action was also filed on or about April 16,1984 in the Superior Court of New Jersey, Chancery Division, Burlington County, SCNJ Docket No. C1941-84. The Complaint mirrors that in item (1) above except that: the municipal contract was Contract No. 1982-1 between Marandino and defendant New Hanover Township; the paving work was allegedly performed on a designated parking lot in that municipality; and the amount due under this subcontract is allegedly $18,000. Both defendants filed Answers in the state court, and defendant Fidelity removed the action on the same grounds asserted in the first action discussed above.

(3.) Jersey Paving Company, Inc. v. Fidelity and Deposit Company of Maryland and Lower Alloways Creek Township, USDC DNJ Civil No. 84-2433.

This action was also filed on or about April 16,1984 in the Superior Court of New Jersey, Chancery Division, Salem County, SCNJ Docket No. C1943-84. This Complaint mirrors those mentioned in items (1) and (2) above except that: the municipal contract was Contract No. 1366 between Marandino and Lower Alloways Creek Township; the paving work was allegedly performed on the “Buckhorn Road Culvert” in that municipality; and the amount due on this subcontract is allegedly $40,-607.30. Defendant Fidelity filed an Answer in the state court and removed the action on the same grounds asserted in items (1) and (2) above.

(4.) Earl B. Pancoast v. Fidelity and Deposit Company of Maryland and Lower Alloways Creek Township, USDC DNJ Civil No. 84-3926.

This action was filed on or about August 21, 1984 in the Superior Court of New Jersey, Law Division, Salem County, SCNJ Docket No. L-053830-84. The Complaint is in three Counts, two against the municipality based upon a mechanic’s lien and unjust enrichment, and the third against Fidelity as alleged bonder of Marandino. The contract is the same as that involved in item (3) above and apparently the action is based upon the same subcontract as that asserted by Jersey Paving Company, Inc. in that suit. Plaintiff Pancoast alleges that there is a balance due and owing to him of $23,112.26 for services and materials provided. Fidelity removed this action on the same grounds asserted in the other three matters.

On September 27, 1984 this Court entered an Order consolidating all of the above actions “for all purposes under Civil Action No. 84-2431.” On October 12,1984, under caption of the Pancoast action only, that plaintiff filed and served a Notice of Motion, returnable November 19, 1984, “for an Order summarily dismissing Petition for Removal.” The Court treated that motion as one for remand to the state court. No defendant opposed the motion, and the supporting papers revealed the clear absence of the required diversity of citizenship between plaintiff and all defendants. Accordingly, on November 19, 1984, this Court entered an Order remanding the Pancoast action to the Superior Court of New Jersey, Law Division, Salem County.

Arguing excusable neglect in failing to oppose Pancoast’s prior application, defendant Fidelity now moves to have the Court reconsider and vacate its November 19, 1984 Order. Since a jurisdictional question is involved, the Court has entertained Fidelity’s motion.

Although counsel for both Pancoast and Fidelity have filed memoranda of law recognizing that the requirements of 28 U.S.C. § 1441(c) are determinative of this motion, neither supplied any decisional authority on the critical question of whether the claims against Fidelity are “separate and independent” from those asserted' against the municipal defendants. This Court’s own research has determined that they are not. Accordingly, the Order of Remand in Pancoast will stand. Furthermore, the Court will enter orders dissolving the consolidation of the Jersey Paving Company actions and remanding each of them to the state court in which it was originally filed.

If the claims against Fidelity were “separate and independent” they would be removable because there is admitted diversity of citizenship between the New Jersey plaintiffs and that Maryland corporation. Furthermore, under 28 U.S.C. § 1441(c) each of the cases involved herein would be removable in its entirety, though non-diverse claims could be severed and remanded in the Court’s discretion. Ibid. If, however, the claims against Fidelity are not “separate and independent” from those against the New Jersey defendants, then the requisite complete diversity of citizenship between all plaintiffs and all defendants is lacking and each of these cases must be remanded. The four actions involved may be analyzed collectively because the relationship between the claims in each is identical.

Recognizing that there are decisions to the contrary (e.g., National Savings & Loan Assoc. v. St. Paul Fire and Marine Ins. Co., 84 F.R.D. 425 (E.D.Wis.1979)), this Court determines that the greater weight of persuasive authority warrants remand of the present actions.

Particularly persuasive is New England Concrete Pipe v. D/C Systems, Inc., 658 F.2d 867 (1st Cir.1981), where one of the claims by a plaintiff seeking payment for work done as a subcontractor on a construction project was “a claim against Westinghouse as the guarantor of Dwight’s payment obligations under the general contract.” Id. at 872. Westinghouse and Dwight (the only defendants whose citizenship was diverse to that of plaintiff) had removed the case without objection, and it proceeded to trial and judgment in the United States District Court for the District of Massachusetts. The Court of Appeals, sua sponte, raised the issue of removal jurisdiction which turned upon the meaning of “separate and independent claim or cause of action” as used in 28 U.S.C. § 1441(c). Adopting the “single wrong” test from American Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702 (1951), the Court in Concrete Pipe quoted from the Finn decision:

... where there is a single wrong to plaintiff, for which relief is sought, arising from an interlocked series of transactions, there is no separate and independent claim or cause of action under § 1441(c).

658 F.2d at 872, quoting from 341 U.S. at 14, 71 S.Ct. at 540.

The “single wrong” test has been adopted and applied by this Court as early as Knight v. Chrysler Corp., 134 F.Supp. 598, 601 (D.N.J.1955), where Judge Foreman reasoned “that where the elements of damage are the same to both resident and non-resident defendants, that is, where full recovery from one defendant would bar further recovery from another, there can be no ‘separate and independent * * * cause of action.’ ” Knight thus adopted the reasoning in Judge Goodrich’s concurring opinion in Mayflower Industries v. Thor Corp., 184 F.2d 537 (3d Cir.1950), cert. denied 341 U.S. 903, 71 S.Ct. 610, 95 L.Ed. 1342 (1951).

Predominantly, claims against sureties have been held not to be separate and independent from those against other defendants arising from defaults by bonded parties to construction contracts. Bd. of Governors ... Western Illinois University v. Weber, Griffith & Mellican, 426 F.Supp. 483 (S.D.Ill.1977); Bd. of County Commissioners, Dade County, Florida v. Blount Bros. Corp., 348 F.Supp. 177 (S.D. Fla.1972); City of Philadelphia v. DeSabato, Inc., 347 F.Supp. 308 (E.D.Pa.1972) (invoking both Finn and Knight). The same result is customarily reached in other actions involving a surety as one of several defendants, such as those concerning fraud by bonded employees. Winters v. Hale, 296 F.Supp. 125 (S.D.Ala.1968); Henry Kraft Mercantile Co. v. Hartford Acc. & Ind. Co., 107 F.Supp. 505 (W.D.Mo.1952); Doran v. Elgin Cooperative Credit Ass’n, 95 F.Supp. 455 (D.Neb.1950). See also Scott v. Metropolitan Life Ins. Co., 450 F.Supp. 801 (W.D.Okla.1978), and Penn Securities Co. v. Home Indem. Co., 418 F.Supp. 292 (M.D.Pa.1976), so holding in different contexts involving an insurer’s liability.

In describing Finn, the Concrete Pipe Court gave an excellent description of the “single wrong” test.

Though these two theories of recovery were distinct, they both derived from a single loss suffered by the plaintiff and thus were deemed by the Court not separate and independent of each other. Thus, what finally governed the Court’s decision was the singularity of the harm the plaintiff sought to remedy, not the several reasons she gave to show her legal entitlement to that remedy.

New England Concrete Pipe Corp., supra, 658 F.2d at 872.

In each of the cases at bar, plaintiff seeks to remedy a single loss: non-payment for work done under a subcontract with Marandino Construction Company, now bankrupt. Recovery from either the municipal defendant or Fidelity will bar the claim against the other; only one recovery is permissible. The requirements of 28 U.S.C. § 1441(c) are not met. This Court’s Order in Pancoast stands. Enclosed herewith are copies of the following Orders entered today:

(1.) Order vacating prior Order of Consolidation;
(2.) Orders in each of the three Jersey Paving cases remanding them to their courts of origin.

      . Although not expressly stated therein, the operative effect of this Order was to vacate the Consolidation Order as to Pancoast's case and leave it in effect as to the three Jersey Paving cases.

      . Coincidentally but not surprisingly, certiorari was denied in Mayflower on April 9, 1951, the same day that the Supreme Court issued its Opinion in Finn.


author: CAFFREY, Chief Judge.

text:
    Domingos Dos SANTOS, Plaintiff, v. UNITED STATES of America, Defendant.
    Civ. A. No. 83-0095-C.
    United States District Court, D. Massachusetts.
    March 1, 1985.

      James P. McCarthy, McCarthy & Sheehan, Boston, Mass., for plaintiff.
    Asst. U.S. Atty. Joan I. Milstein, Boston, Mass., for defendant.
   MEMORANDUM

CAFFREY, Chief Judge.

This is a civil action brought under the Federal Tort Claims Act (28 U.S.C. § 1346 et seq.) by Domingo Dos Santos, a 48 year old non-English speaking fisherman who emigrated from Portugal to New Bedford, Massachusetts about seven years ago. After a bench trial, I find and rule as follows.

As a member of the crew of a commercial fishing boat, plaintiff was entitled to free medical care and treatment at the United States Public Health Service Hospital in Brighton, Massachusetts (commonly referred to as the Brighton Marine Hospital, hereafter “Brighton Marine”).

Plaintiff presented himself at the Brighton Marine in June of 1980 as part of a group of fisherman who traveled in a union-supplied bus from New Bedford to Brighton. Plaintiff did so after visiting a Portugese speaking doctor in New Bed-ford, Dr. Almeida, who suggested that plaintiff obtain an examination at Brighton Marine.

In 1980 the Brighton Marine (which is no longer in operation) operated a Primary Care Clinic which saw 75-100 patients per day. It had a staff of physicians and nurse practitioners who met new patients, took histories and did some examination of the patients. At trial, none of the former members of the Brighton Marine staff who testified had any memory of plaintiff being there on June 11, 1980 but there was a hospital record produced which did refer to plaintiff’s June 11 visit.

According to the record, plaintiff was initially examined by Virginia Felice, a nurse practitioner, who holds a B.S. and a Master’s Degree in nursing. I find that plaintiff told Ms. Felice that he had felt hoarseness and “something on the left side of his throat” for about three months. He also told her that he smoked a pack of cigarettes a day for about 28 years and that his father had died of “neck cancer” at age 60. The hospital record shows that Ms. Felice noted that plaintiff had a “firm palpable left tonsillar or superficial cervical node, 2 cm.”

Based on the fact that plaintiff testified that he was also seen by two males on June 11, 1980 and on the further fact that Ms. Felice did not normally order pulmunary function tests, I find that Ms. Felice followed accepted medical procedure by referring plaintiff to one of the staff physicians, who from the hospital record I infer, ordered a pulmonary function test for plaintiff.

The hospital records establish that plaintiff underwent a pulmonary function test on June 11 and that the test results were reviewed by Dr. Thomas Nary the director of the Primary Care Clinic at the time. Dr. Nary testified that the record bore his handwriting regarding the results of the pulmonary test.

The hospital record contains no treatment plan for plaintiff and the “Patient Assessment” form contains only the notation “Drugs — ? Throat medication.” There is no reference in the hospital record to follow-up action of any kind.

I find that the staff members of the Brighton Marine who had contact with plaintiff on June 11, 1980 collectively were negligent in not providing for further evaluation of the 2 cm. node on plaintiff's neck, given the history of plaintiff noted in the hospital record. More specifically, I find the staff negligent for failing to refer plaintiff to the then available ear, nose and throat clinic at the hospital and in failing to schedule a definite appointment and notify plaintiff, and in failing to follow up on plaintiff’s health situation.

Despite plaintiff’s testimony, I do not find that anyone at the hospital ever told plaintiff that he merely had an inflamation in his throat.

Plaintiff and his family took a vacation trip to Portugal in the summer of 1980.

Mr. Dos Santos resumed fishing in September 1980 upon his return from Portugal and he continued to work as a crew member until about December 21, 1980 when he noticed a lump in his throat upon looking in a mirror. He presented himself to the Massachusetts Eye and Ear Infirmary in January 1981 where he was told he had cancer and was diagnosed as having a stage 4 squamous cell , carcinoma. Chemotherapy was started for plaintiff in late January of 1981 but because of complications which developed, the chemotherapy was soon discontinued and plaintiff underwent surgery in May 1981 consisting of a total laryngectomy and left radical neck dissection.

The theory underlying plaintiff’s claim is that the negligence of the staff at the Brighton Marine caused a delay in plaintiff receiving either chemotherapy or surgery which delay allowed his condition to worsen and the lapse of time made necessary the surgery, some or all of which plaintiff claimed would not have been necessary had chemotherapy been instituted back in June of 1980.

The crucial question for resolution herein is whether or not the negligence, and resulting delay in plaintiffs being treated for cancer, was a proximate cause of his undergoing the more extensive surgery with its attendant greater negative impact on plaintiff.

Dr. Francis Joseph O’Connor who was called as plaintiff’s expert testified that he is a radiation oncologist who is presently located in Clarksburg, West Virginia. Dr. O’Connor testified that he is a graduate of Tufts University Medical School; that he has spent four years in the Radiology Department at Boston City Hospital doing radiology and radiotherapy; he has spent time at the Cancer Research Institute at the Deaconess Hospital; he spent 25 years at the Augusta Hospital in Maine from 1955-1981 and he has also spent some time at the Sidney Farber Kidney Foundation in Boston. He is board certified in diagnostic radiology and in radiotherapy. Dr. O’Con-nor testified that he does not do major surgery and has not performed any laryngectomies. He further testified that he has read plaintiff’s hospital record from the Massachusetts Eye and Ear Infirmary, from the Brighton Marine Hospital and from the Massachusetts General Hospital. He conceded that he has not seen any records more recent than August of 1983, that he has not examined plaintiff, has never spoken to plaintiff, has never spoken to Dr. Almeida, nor referred to any records of Dr. Alméida, nor has he spoken with any of plaintiff’s treating physicians.

Dr. O’Connor testified that it was his opinion that plaintiff was suffering from cancer in June of 1980 and that he was of the further opinion that plaintiff then had a stage 3 cancer. Dr. O’Connor also expressed the opinion that had plaintiff been evaluated and treated in June of 1980 that radiotherapy would have treated him properly without the need for surgery.

The substance of Dr. O’Connor’s opinion testimony was directly contradicted by the opinion testimony of Dr. George Simpson, II. Dr. Simpson is a surgeon, board certified in ototaryngology, a fellow of the American College of Surgeons, and a fellow of the American Academy of Ototaryngology, Head and Neck Surgery. He is clinical instructor in ototaryngology at Tufts School of Medicine and director of the Department of Ototaryngology at Boston City Hospital. He is also an associate ototaryngologist at the University Hospital in Boston and an Assistant Ototaryngologist at the Children’s Hospital Medical Center. Ototaryngology is an area of medical specialty which concerns itself with the diagnosis, treatment, and surgery of cancer in the head and neck areas including the ear, the face, the neck, and the throat.

Dr. Simpson testified that he performs one or two operations on the larynx per week and that he does about 30 operations a year involving cancer of the patients larynx. Dr. Simpson, after reviewing all of the available records on plaintiff, expressed the opinion that plaintiff was suffering from squamous cell carcinoma in both June of 1980 and January of 1981. He testified that his opinion was based on the fact that plaintiff in June 1980 was an adult smoker who had a mass in the neck, and on the fact that 90% of the time such an adult patient who developed a mass in the neck will be diagnosed as having squamous cell carcinoma which has metastasized from an area in the throat or in the oral cavity. Dr. Simpson testified that plaintiff’s hoarseness and vague sensation in the throat are classical symptoms of a tumor occurring in the superglottic larynx and the pyriform sinus or hypopharynx.

Dr. Simpson expressed the opinion that the total laryngectomy and left radical neck dissection which plaintiff underwent in March 1981 would have had to be performed even had he presented himself in June of 1980. This opinion is based on the fact that as of June 1980 plaintiff already had a neck metastasis, i.e. a stage 3 cancer. Dr. Simpson testified that radiation alone will not cure a stage 3 cancer of the larynx, hypopharynx with a neck metastasis. He expressly testified in response to a question from the Court that there was some metastasis in plaintiff by June of 1980 and that both stage 3 and stage 4 are very advanced cancers. Dr. Simpson further testified that it was his opinion that the prognosis for plaintiff would be no different had the cancer been treated in June of 1980 rather than in March of 1981.

Dr. Simpson expressed the opinion that when a patient regresses from stage 3 to stage 4 his chances of total recovery are decreased. He also stated, however, that with each passing month in which plaintiff remains cancer free, there is less and less probability of recurrence. He has now been cancer free for over two years.

One of the essential elements which plaintiff must prove by a preponderance of the evidence is that the defendant’s negligence was a proximate cause of the pain and disability resultant from the surgery for which he now seeks compensation. Having in mind the hospital records and the testimony of both Dr. O’Connor and Dr. Simpson, I rule that plaintiff has not proven that it is more likely so than not that defendant’s actions or non-actions were a proximate cause of his sustaining more disability than he. would have sustained had he been started on radiology treatment within a reasonable time after his June 1980 visit to the Brighton Marine Hospital.

Order accordingly.

ORDER

In accordance with memorandum filed this date, it is ORDERED:

1. Judgment for defendant.
2. Complaint dismissed.