author: WEINSHIENK, District Judge.

text:
    FEDERAL DEPOSIT INSURANCE CORPORATION, a United States corporation, Plaintiff, v. BANK OF BOULDER, a Colorado corporation, Defendant.
    Civ. A. No. 85-Z-764.
    United States District Court, D. Colorado.
    Dec. 4, 1985.

      Robert A. Zupkus, Nancy V. Curtis, White and Steele, P.C., Denver, Colo., for plaintiff.
    Richard L. Eason, Pamela K. Pritzel, Ea-son, Sprague & Wilson, Denver, Colo., for defendant.
   MEMORANDUM OPINION AND ORDER

WEINSHIENK, District Judge.

This is an action by the Federal Deposit Insurance Corporation (FDIC) in its corporate capacity seeking to enforce a letter of credit issued by the defendant Bank of Boulder. The matter is before the Court on defendant’s Motion to Dismiss. Defendant’s Motion was set for hearing on November 14, 1985, and was granted at that time. The Court is issuing a written opinion because of the unusual circumstances and the impact of this decision on other enforcement actions by the FDIC.

In its Motion to Dismiss the Bank of Boulder raises two issues which place the FDIC on the horns of a dilemma. On the one hand, the Bank of Boulder challenges the federal court’s jurisdiction to hear this action because defendant asserts the FDIC is essentially proceeding in its capacity as a receiver. Only if plaintiff is suing in its corporate capacity would the federal court have jurisdiction. On the other hand, defendant argues, if the FDIC is proceeding in its corporate capacity and jurisdiction is good, it cannot enforce a non-transferable letter of credit. Only FDIC as receiver can arguably enforce a non-transferable letter of credit because it received this asset by operation of law, and not by sale.

The jurisdictional issue is governed by 12 U.S.C. § 1819 Fourth. That section provides as follows:

All suits of a civil nature at common law or in equity to which the Corporation shall be a party shall be deemed to arise under the laws of the United States, and the United States district courts shall have original jurisdiction thereof, ... except that any such suit to which the Corporation is a party in its capacity as receiver of a State bank and which involves only the rights or obligations of depositors, creditors, stockholders, and such State bank under State law shall not be deemed to arise under the laws of the United States.

The defendant contends that this action falls within the exception clause in § 1819 and jurisdiction is proper only in the state courts. This Court is satisfied that, if the FDIC is proceeding in its corporate capacity, jurisdiction' in this Court is proper; the question is whether the FDIC is proceeding as receiver or in its corporate capacity.

The capacity question is resolved by addressing the second issue: Does the FDIC as corporation have the right to draw on a non-transferable letter of credit issued by the Bank of Boulder to the Dominion Bank of Denver? The letter of credit was issued by the Bank of Boulder to secure a promissory note from Gil Reed in favor of the Dominion Bank of Denver for $22,500. Mr. Reed defaulted on the promissory note and the FDIC, which was appointed receiver by the State Banking Commissioner, is attempting to enforce the letter of credit. The letter of credit did not explicitly state that it was transferable or assignable. Therefore, by statute, the letter of credit is non-transferable. The Uniform Commercial Code provision, which is enacted in Colorado as C.R.S. § 4-5-116(1), provides that “the right to draw under a credit can be transferred or assigned only when the credit is expressly designated as transferable or assignable.” The letter of credit specifically states: “This credit is subject to the ‘Uniform Customs and Practice for Documentary Credits’ (1974 Revision), International Chamber of Commerce Brochure No. 290.” Article 46 of the Uniform Customs also provides that the right to draw under a letter of credit cannot be assigned.

This non-transferable letter of credit was transferred by operation of law from Dominion Bank of Denver to the State Banking Commissioner, C.R.S. § 11-5-102, and by the State Banking Commissioner to the FDIC as receiver, pursuant to statute, C.R.S. § 11-5-105. While these “transfers” appear to be legitimate, the transfer from FDIC as receiver to FDIC Corporation does not. The state court judge, in his Order Approving Sale of Assets and Transfer of Liabilities of Receiver, approved a “sale” of certain assets, including the letter of credit at issue, from the “FDIC as Receiver of the Bank ... to the FDIC in its corporate capacity.” Exhibit C to plaintiff’s Brief in Opposition to Defendant’s Motion to Dismiss. This sale was a transaction in violation of the non-transferability requirement of the letter of credit.

It was the sale from FDIC as receiver to FDIC as corporation that created the Catch-22 problem. If the transfer was valid, then the FDIC is proceeding in its corporate capacity and jurisdiction in this Court is proper. If, on the other hand, the transfer was a violation of the terms of the letter of credit, then the FDIC may not proceed in its corporate capacity but must proceed in its capacity as receiver. If the FDIC is proceeding as receiver, however, jurisdiction is proper in the state courts but not the federal court, pursuant to 12 U.S.C. § 1819.

The Court concludes that the sale of the letter of credit to FDIC in its corporate capacity is a violation of the terms of the letter of credit. Defendant’s counsel conceded at the hearing that, in light of this ruling, the transfer was void. Accordingly, the FDIC as receiver is the proper beneficiary to draw on the nontransferable letter of credit. The FDIC as corporation is not properly before this Court and the Motion to Dismiss is granted. The FDIC may proceed as receiver, however, in the state court. Therefore, it is

ORDERED that defendant Bank of Boulder’s Motion to Dismiss is granted without prejudice to suit by the FDIC as receiver in the state court.


source: Caselaw Access Project

author: KANE, District Judge.

license: Public Domain

text:
    Warren L. ANDERSON and Ruby Anderson, Plaintiffs, v. DEERE & CO., a Delaware corporation, Defendant.
    Civ. A. No. 83-K-1419.
    United States District Court, D. Colorado.
    Dec. 4, 1985.

      William E. Myrick, Myrick & Serruto, Tim Correll, Denver, Colo., for plaintiffs.
    Charles L. Casteel, Davis, Graham & Stubbs, Denver, Colo., for defendant.
   MEMORANDUM OPINION AND ORDER

KANE, District Judge.

In this diversity action, plaintiffs seek compensatory and exemplary damages based on theories of negligence, strict liability for a defective product, breach of warranties, and loss of consortium. Defendant moves for summary judgment asserting that plaintiffs’ claims are barred by Colorado’s statutes of limitations. For the following reasons, I deny defendant’s motion for summary judgment on plaintiffs’ tort claims. I grant, however, defendant’s motion for summary judgment on plaintiffs’ warranty claims.

BACKGROUND

On November 12, 1980, plaintiff Warren L. Anderson received severe injuries from an allegedly defective Deere Model 1010 Crawler Tractor. On July 1, 1983, plaintiff filed a complaint against John Deere Company (J.D.C.) and John Deere Industrial Equipment Company (J.D.I.E.C.). On July 5, 1985, plaintiffs filed a second amended complaint naming Deere and Company as a defendant. On August 14, 1985, I granted a motion for summary judgment filed by J.D.C. and J.D.I.E.C., and dismissed them from the lawsuit. Defendant Deere and Company now moves for summary judgment dismissing plaintiffs’ claims.

Rule 56 of the Federal Rules of Civil Procedure states that summary judgment shall be rendered when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Pleadings and factual inferences tending to show issues of material fact should be viewed in the light most favorable to the party opposing summary judgment. Norton v. Liddel, 620 F.2d 1375, 1381 (10th Cir.1980). Unless the moving party can demonstrate its entitlement beyond a reasonable doubt, summary judgment must be denied. Id.; see also Luckett v. Bethlehem Steel Corp., 618 F.2d 1373, 1383 (10th Cir.1980).

I

Defendant asserts that plaintiffs’ tort claims are barred by Colorado’s three-year product liability statute of limitations, Colo.Rev.Stat. § 13-80-127.5, because plaintiffs filed their claims against defendant more than three years after the accident occurred. Section 13-80-127.5 of the Colorado Revised Statutes provides:

(1) Notwithstanding any statutory provisions to the contrary, all actions except those governed by section 4-2-725, C.R.S., brought against a manufacturer or seller of a product, regardless of the substantive legal theory or theories upon which the action is brought, for or on account of personal injury, death or property damage caused by or resulting from the manufacture, construction, design, formula, installation, preparation, assembly, testing, packaging, labeling, or sale of any product, or the failure to warn or protect againt a danger or hazard in the use, misuse, or unintended use of any product, or the failure to provide proper instructions for the use of any product shall be brought within three years after the claim for relief arises and not thereafter. (Emphasis added.)

Plaintiffs assert that, pursuant to Rule 15(c) of the Federal Rules of Civil Procedure, their claims against defendant relate back to the date of the original pleading for purposes of the statute of limitations. Rule 15(c) provides:

Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.

Defendant contends, but has presented no evidence showing, that it did not know or should not have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against it. Thus, defendant has failed to prove beyond a reasonable doubt that it is entitled to judgment as a matter of law. Accordingly, defendant’s motion for summary judgment on plaintiffs’ tort claims is denied.

II

Section 4-2-725 of the Colorado Revised Statutes provides:

(1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued____
(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made; ...

Defendant contends that plaintiffs’ warranty claims are barred by § 4-2-725 because tender of delivery occurred in 1962 when the crawler tractor was sold to its first purchaser. Plaintiff contends that § 4-2-725 does not apply because they are third parties who did not contract directly with defendant, therefore, Colorado’s three-year product liability statute, § 13-80-127.5, should apply.

Colorado Courts have not addressed the issue of whether persons not parties to a sale, who are injured as a result of breach of warranties, are subject to the limitations period of § 4-2-725. Two judges in this federal district, however, have addressed the issue. In Ayala v. Joy Manufacturing Co., 580 F.Supp. 521 (D.Colo.1984), Judge Moore held that persons not parties to the sale are subject to the limitations period of § 4-2-725. Judge Moore reasoned that § 4-2-725 specifically refers to causes of action for breach of warranty, whereas § 13-80-127.5 explicitly excepts those causes of action governed by § 4-2-725. Id. at 524-25. In Wieser v. Firestone Tire and Rubber Co., 596 F.Supp. 1473 (D.Colo.1984), Judge Weinshienk also held that persons not parties to the sale are subject to the limitations period of § 4-2-725. Judge Weinshienk stated that she was adopting the approach the majority of courts in other jurisdictions follow when interpreting similar statutes. Id. at 1475.

Based on the foregoing, I hold that plaintiffs’ warranty claims are barred by § 4-2-725. Accordingly, I grant defendant’s motion for summary judgment on plaintiffs’ warranty claims.

IT IS THEREFORE ORDERED THAT:

(1) Defendant’s motion for summary judgment on plaintiff’s tort claims is DENIED.

(2) Defendant’s motion for summary judgment on plaintiff’s warranty claims is GRANTED.

      . Although the Rule refers to an “amendment changing the party", it sanctions relation back of amendments when adding or dropping parties as well as when substituting new parties. Travelers Indemnity Co. v. United States for the Use of Construction Specialties Co., 382 F.2d 103, 105-06 (10th Cir.1967); Staren v. American National Bank & Trust Co. of Chicago, 529 F.2d 1257, 1263 (7th Cir.1976); Upshaw v. Equitable Life Assurance Society of United States, 85 F.R.D. 674, 677 (E.D.Ark.1980); J. Moore, 3 Moore's Federal Practice ¶ 15.15[4.-2], at 15-162 (2d ed. 1985). But cf. Anderson v. Phoenix of Hartford Insurance Co., 320 F.Supp. 399, 404 (W.D.La.1970) and cases cited therein.

      . Defendant does not contend that the claim asserted in the amended pleading did not arise out of the occurrence set forth in the original pleading, or that it did not receive notice of the institution of the action.

      . The cases cited by defendant are not contrary to this holding. In Hernandez Jimenez v. Calero Toledo, 604 F.2d 99 (1st Cir.1979) the court did not allow the plaintiff to amend its complaint with the amendment relating back to the date of the original pleading because no evidence in the record showed that the proposed defendants knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. In Gutierrez v. Raymond International, Inc., 86 F.R.D. 684 (S.D.Tex.1980), Upshaw v. Equitable Life Assurance Society of the United States, 85 F.R.D. 674 (E.D.Ark.1980), and Francis v. Pan American Trinidad Oil Co., 392 F.Supp. 1252 (D.Del.1975), the plaintiffs clearly knew the identity of the proper defendant before the asserted statute ran. Williams v. Dana Corp., 54 F.R.D. 473 (E.D.Mich.1971) involved a motion to add not only a new defendant, but also a new and independent cause of action.

      . § 13-80-127.5 is quoted in part I of this opinion.


author: ROBERT H. HALL, District Judge.

text:
    Paul E. STANTON, Jr., Pano A. Lamis and David Rosenthal as trustees of Atlanta Vascular Specialists, P.C. Profit Sharing Plan and Atlanta Vascular Specialists, P.C. Money Purchase Pension Plan for the use and the benefit of Dr. Paul E. Stanton, Jr., Plaintiffs, v. SHEARSON LEHMAN/AMERICAN EXPRESS, INC. (formerly known as Shearson/American Express, Inc.) and Peg J. Shimp, Defendants.
    Civ. A. No. C84-1731A.
    United States District Court, N.D. Georgia, Atlanta Division.
    Dec. 9, 1985.

      Gerald B. Kline, Bauer, Deitch & Raines, P.C., Atlanta, Ga., for plaintiffs.
    Peter J. Anderson, Peterson Young Self & Asselin, Atlanta, Ga., for defendants.
   ORDER

ROBERT H. HALL, District Judge.

Plaintiffs bring this action alleging, among other things, that defendants violated the Georgia Racketeering Influenced and Corrupt Organizations Act (“the Georgia RICO Act”), Ga. Off’l Code Ann. §§ 16-14-1 et seq. Presently pending is defendants’ motion to dismiss plaintiffs’ Georgia RICO Act claims for failure to state a claim upon which relief can be granted. Defendants contend that these claims should be dismissed because “Plaintiffs have failed to allege that either [of the defendants] is an ‘organized criminal elements’ nor that they have engaged in an ‘interrelated pattern of criminal activity.’ ” (Defendants’ brief, p. 3).

No Georgia court has addressed the issue of whether the Georgia civil RICO Act is limited to the “organized crime” context so this court must speculate how a Georgia court would decide this issue. Because the Georgia RICO Act was enacted after the federal RICO Act and contains substantially the same language as the federal act, this court concludes that a Georgia court, if confronted with this issue, would follow federal court decisions interpreting the federal RICO Act and decide that failure to allege an association with organized crime is not fatal to a Georgia RICO claim. See Owl Construction Co. v. Ronald Adams Contractor, Inc., 727 F.2d 540, 542 (5th Cir.1984); Moss v. Morgan Stanley, Inc., 719 F.2d 5 (2d Cir.1983); Bunker Ramo Corp. v. United Business Forms, Inc., 713 F.2d 1272 (7th Cir.1983); Bennett v. Berg, 685 F.2d 1053 (8th Cir.1982), aff'd 710 F.2d 1361 (8th Cir.) (en banc), cert. denied, 464 U.S. 1008, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983); Taylor v. Bear Stearns & Co., 572 F.Supp. 667, 681-82 (N.D.Ga.1983) (Forrester, J.); Kimmel v. Peterson, 565 F.Supp. 476, 490 (E.D.Pa.1983); Austin v. Merrill Lynch, Pierce Fenner & Smith, Inc., 570 F.Supp. 667, 669-70 (W.D.Mich.1983); Mauriber v. Shearson/American Express, Inc., 567 F.Supp. 1231, 1239-40 (S.D.N.Y.1983); Lode v. Leonardo, 557 F.Supp. 675, 680 (N.D.Ill.1982); Crocker National Bank v. Rockwell International Corp., 555 F.Supp. 47, 49 (N.D.Cal.1982).

The court rejects defendants’ contention that “the Georgia Legislature has imposed a much more stringent standard for RICO violations than set forth in the Federal RICO Act.” (Defendants’ brief, p. 2). The Georgia RICO Act adopts the same enforcement mechanism which Congress set forth in the federal RICO Act. The Georgia legislature, just like Congress, defined certain proscribed “predicate acts” and created a civil remedy for “any person injured by reason of” a “pattern” of such predicate acts. That the Georgia legislature declared its intent “to impose sanctions against [the] subversion of the economy by organized criminal elements”, Ga. Off’l Code Ann. § 16-14-2(b), does not create a more stringent standard for the Georgia Act; despite the purpose of the Act, the Act was written in very broad terms containing no restriction on its face as to enforcement against only members of “organized crime.”

Accordingly, the court DENIES defendants’ motion to dismiss.

      . The court notes that the Georgia Supreme Court has allowed the criminal RICO prosecution of a defendant who was not an organized crime member. See, e.g., Caldwell v. Georgia, 253 Ga. 400, 321 S.E.2d 704 (1984).


author: WATSON, Judge:

text:
    AMERICAN GRAPE GROWERS ALLIANCE FOR FAIR TRADE, et al., Plaintiffs, v. UNITED STATES, et al., Defendants.
    Court No. 84-04-00575.
    United States Court of International Trade.
    Nov. 22, 1985.

      Heron, Burchette, Ruckert & Rothwell, Thomas A. Rothwell, Jr. and James M. Lyons, Washington, D.C., for plaintiffs.
    Michael P. Mabile, Asst. Gen. Counsel, and Wayne W. Herrington, Washington, D.C., for defendant U.S. Intern. Trade Com’n.
    Covington & Burling, Harvey M. Applebaum, 0. Thomas Johnson, Jr. and David R. Grace, Washington, D.C., and Wiggin & Dana, Shaun S. Sullivan, Mark R. Kravitz, New Haven, Conn., and Jack Dunnam, for defendant-intervenor Banfi Products Corp.
   MEMORANDUM OPINION AND ORDER

WATSON, Judge:

The Court has before it plaintiffs’ motion for an order enforcing the judgment in American Grape Growers Alliance for Fair Trade, et al. v. United States, 615 F.Supp. 603, 9 CIT —, (1985) in which the Court held that certain antidumping and countervailing duty proceedings with respect to imported wine had been unlawfully terminated by the International Trade Commission (ITC).

The motion is opposed by the ITC as well as by the defendant-intervenors.

The grounds of objection are that the judgment has been appealed and is the subject of motions to stay the judgment which are pending before the Court of Appeals for the Federal Circuit.

The ITC argues that the motion is inappropriate and granting it would be usurpative of the powers of the appellate court. The defendant-intervenor Banfi Products Corporation goes further and sees a statutory bar to the granting of the motion in the provision of 28 U.S.C. § 2645.

The Court finds no merit in these contentions. If we assume the power of a court to enforce its judgments, then the pendency of an appeal, or the pendency, in conjunction with that appeal, of motions for stay of the judgment, have no bearing. The lower court cannot assume anything about what will happen on appeal, and for the lower court to refrain from acting on any suppositions about future events would be both presumptuous and improper. For this reason, the position of the ITC is rejected.

The argument of the defendant-intervenor is another matter. That argument, on its face, has some plausibility and its rejection has to be explained more fully.

The provision relied on by defendant intervenor reads as follows:

(c) A decision of the Court of International Trade is final and conclusive, unless a retrial or rehearing is granted pursuant to section 2646 of this title or an appeal is taken to the Court of Appeals for the Federal Circuit by filing a notice of appeal with the clerk of the Court of International Trade within the time and in the manner prescribed for appeals to United States courts of appeals from the United States district courts. [Emphasis supplied.]

If read literally, this provision would undo some of the most important provisions of the Customs Courts Act of 1980 and undermine one of the basic purposes of that Act, which was to give to this Court all the powers in law and equity of a district court. H.Rep. No. 1235, 96th Cong., 2d Sess. 50 (1980), U.S. Code Cong. & Admin. News 1980, p. 3729.

If read literally, this provision would nullify the meaningfulness of the grant to this Court, in 28 U.S.C. § 2643(c)(1), of powers of injunction, remand, declaratory judgment, and writs of mandamus and prohibition. A literal reading would obviously eliminate the essential power of a court to deal with matters in which time is of the essence and delay would be unfair, unjust, or injurious.

Fortunately, the absurdity of a literal interpretation is easily avoided by referring to the legislative history of this provision which shows it to be simply a restatement of existing law, intended only to carry forward the law formerly contained in 28 U.S.C. § 2638(b) H.Rep. No. 1235, 96th Cong., 2d Sess. 62 (1980). This takes us back to a time before the enlarged jurisdiction and power of the Court, to a time when its jurisdiction consisted of cases involving questions of classification and valuation of merchandise. The . same general language can be followed back to an Act of June 25, 1948, c. 646, 62 Stat. 982 (28 U.S.C. § 2637 (1948) in which three sections from the Tariff Act of 1930 (Secs. 501, 515 and 516 or 19 U.S.C. §§ 1501(b), 1515 and 1516(c)) were blended into one.

The original provisions dealt with the extremely limited jurisdiction of the Court in those times, prior to the Trade Agreements Act of 1979 and the Customs Courts Act of 1980. In deciding whether an article was a widget or a gadget, the only consequences of which would be whether an overpayment of duty would eventually be refunded, the enforceability of the lower court’s judgment was normally not a pressing matter.

All of this leads the Court to conclude that the provision of 28 U.S.C. § 2645 relates to decisions of a type made under the old law, to those decisions in which there were no elements of possible injury to a party from postponing the effectiveness or enforceability of a judgment. The exact operation of this provision with respect to those judgments need not be decided here. It is clear however, that in cases of the present type, in which time is of the essence, and possible injury is the reason for the law and the reason for its speedy enforceability, judgments of this Court must be enforceable.

It should also be noted that if the provision of 28 U.S.C. § 2645 were read literally, it would also make the rules for obtaining stays in this Court and in the Court of Appeals for the Federal Circuit a superfluous matter. The taking of any appeal would operate as an automatic stay, rendering all rules on the subject of stays unnecessary. See for example, Rule 62 of the Rules of this Court and Rule 8 of the Federal Rules of Appellate Procedure. The fact that these rules have been in effect for a significant period of time without untoward developments is an indication of the meaningfulness of these rules.

This is enough of a catalogue of absurdity in light of the larger purposes of the law to indicate why the Court will not read 28 U.S.C. § 2645 in the manner argued by defendant-intervenor.

In a proper case, such as this one, the enforceability of this Court’s judgments should be unquestioned, and a stay is the only way to put off that enforceability. The granting of a stay is within the sound discretion of the Court. Lineker v. Dillon, 275 F. 460 (N.D.Cal.1921) (a case of the same approximate vintage as the provision sought to be used here to nullify enforcement). A stay has already been denied by this Court.

A court has inherent power to enforce its judgments and continue proceedings until its judgment is satisfied. United States ex rel. Riggs v. Johnson County, 6 Wall (73 U.S.) 166, 18 L.Ed. 768; Wayman v. Southard, 10 Wheat (23 U.S.) 1, 6 L.Ed. 253; Boers v. Haughton, (Pet) (34 U.S.) 329, 360, 9 L.Ed. 145, 157.

The reasons given for denying the stay are also the reasons for requiring speedy obedience to the judgment. The necessity of the agencies resuming an investigation which the Court found was unlawfully terminated does not create difficulties or harm of any type comparable to the deprivation of rights of the party aggrieved.

The fact that those who are subject to the enforcement of this judgment are agencies of the government does not diminish the necessity of enforcement. See e.g. Nader v. FCC, 520 F.2d 182, 206-207 (D.C.Cir.1975). If anything, the government should set an example for obedience to judgments of the Court.

The Court concludes by quoting a portion of President Abraham Lincoln’s First Message to Congress which is inscribed on the wall outside one of the courtrooms of this Court, and which we obviously take seriously.

It is as much the duty of government to render prompt justice against itself, in favor of citizens, as it is to administer the same between private individuals.

For the reasons given above it is hereby

ORDERED, that plaintiffs’ motion to enforce the final judgment of this Court is Granted and it is further

ORDERED, that defendant is directed to make determinations pursuant to Sections 703(a) and 733(a) of the Tariff Act of 1930, as amended, 19 U.S.C. §§ 1671b(a) and 1673b(a), with regard to ordinary table wine from France and Italy no later than ten days from the date of this order.


author: VERON, District Judge.

text:
    Glenn B. COUNTS v. LAFAYETTE CREWBOATS, INC., et al.
    Civ. A. No. 80-1869.
    United States District Court, W.D. Louisiana, Lake Charles Division.
    Nov. 8, 1983.
    Chris Smith, III, Smith, Ford & Clark, Leesville, La., for plaintiff.
    David R. Frohn, Camp, Carmouche, Barsh & Hunter, Lake Charles, La., for defendants Lafayette Crewboats.
    Edmund E. Woodley, Woodley, Barnett, Cox, Williams & Fenet, Lake Charles, La., for Gen. Amer. Oil Co. of Texas.
    Mouton, Roy, Carmouche, Bivins, Judice & Henke, Lafayette, La., for Continental Catering and Marine Office of Am. Corp. and Cont. Ins. Co.
    V. Farley Sonnier Davidson, Meaux, Sonnier & McElligott, Lafayette, La., for Lafayette Crewboats.
   OPINION

VERON, District Judge.

Plaintiff Glenn B. Counts was injured on October 6, 1978, while attempting to move from General American Oil Company of Texas, Inc.’s (General American Oil) Platform #4 to a small crewboat, the M/V BRETT. The accident occurred in the Gulf of Mexico off Cameron, Louisiana in West Cameron Block #45. Plaintiff filed suit under the General Maritime Law on December 5, 1980 against various defendants including Lafayette Crewboats, Inc. and General American Oil. The Continental Insurance Company, as insurer of plaintiff’s employer Continental Catering Service, Ltd., filed an intervention seeking reimbursement of Longshoreman and Harbor-workers Compensation benefits already paid to the plaintiff, if plaintiff should recover in tort.

General American Oil filed a cross-claim against Lafayette Crewboats under its contract. It is conceded that General American Oil is covered by Lafayette Crewboats’ insurance for any liability resulting from vessel negligence. Other parties were dismissed from the case under various motions. Trial was had as to these two defendants on July 7, 1983.

FINDINGS OF FACT

On October 6, 1978 at about 10:30 A.M., Jerry Poole, a switcher; Randy Cotton, a roustabout; and the plaintiff, a cook were preparing to leave General American Oil’s Platform # 4 since their tour of duty was completed. Using the crewboat M/V BRETT was the customary means of departure under normal conditions. The seas that day were “choppy” and the waves were running six to eight feet. However, no particular hazard existed.

A deck existed near the water level below and on the lee side of the platform. The M/V BRETT’s customary practice was to back up to the platform, stern foremost. The crewboat would not push against the structure since this might have caused it to go under the deck and sustain damage.

Swing ropes were located at the edge of the platform. These were set up at different intervals, some further out than others for use depending on whether the person using them was leaving the platform or coming aboard. Additionally, two pipes were welded near one corner of the deck, referred to as “help me ups” as hand rails or bars for stepping on or off the deck. A personnel basket also existed on the platform but no one, including the plaintiff, felt it was necessary on this occasion (particularly since it offered its own hazards) to use it.

Harry Reineke, a naval architect and maritime engineer, testifying for the plaintiff stated that the swing rope method of transferral is widely used and was as reasonably safe as it could be. In fact, as one swings out if the crewboat is descending on a wave, the person can always swing back and make another attempt at boarding when the boat is on the rise of a wave.

Plaintiff testified that he intended to step from the platform’s deck to the deck of the crewboat. According to his own testimony, plaintiff did not use a swing rope because he didn’t consider the seas rough enough to justify it. As he made his step, the boat went down four to five feet (in concert with wave action) and he fell, striking his foot on a raised lip or covering around the edge of the deck. Rather than being an unsafe construction as plaintiff argued, the ledge prevents cargo from sliding off the crew-boat’s deck. No witnesses at trial verified any unsafe condition. All witnesses agreed that the lip was something to be aware of and to avoid landing on it.

At trial Mr. Counts admitted he stepped onto the M/V BRETT after it had commenced its downward plunge. Roustabout Randy Cotton testified that boarding a crewboat requires a judgment call. He stated that one steps to the deck as the vessel rises on a wave, not as the deck descends below the platform loading dock. Mr. Cotton voiced surprise at seeing Mr. Counts attempt to board the M/V BRETT first and stated that plaintiff just “bailed off” of the loading dock. He admitted to not paying close attention to his attempted transfer to the crewboat, to not using the swing rope and to not having asked for the personnel basket or any other assistance. The crewboat’s captain and plaintiffs two other co-workers boarded without mishap on the day in question. Captain LeBlanc testified that plaintiff boarded the crew-boat too soon, before it was in position to receive passengers and thereby caused his own fall. And, more importantly, plaintiff had worked offshore for more than a year and had left the instant platform on at least 26 other occasions without mishap.

Plaintiff’s counsel argued that Mr. Counts was not properly instructed in methods of platform egress. But, Henry Nortman (a General American Oil Safety Man) testified that General American Oil posted safety instructions on the bulletin boards both on shore and on the platform. Mr. Counts admitted to having read those bulletin boards. Plaintiff does not recall the exact printed instructions but does recall that boarding the boats was a subject at various company safety meetings.

CONCLUSIONS OF LAW

A passenger may only recover personal injury damages if he proves the fault or negligence of the carrier. See Moore-McCormack Lines, Inc. v. Russak, 266 F.2d 573 (9th Cir.1959) and Norris, The Law of Maritime Personal Injuries (3rd Ed.) § 33. Included in the carrier’s duty of care are its obligations to provide safe ingress and egress from the vessel, Callahan v. Cheramie Boats, Inc., 383 F.Supp. 1217 (E.D.La.1974) and the duty to warn passengers of reasonably anticipated dangers — though not openly obvious ones, The S.S. Serpa Pinto, 45 F.Supp. 255 (E.D.N.Y.1942). See also Superior Oil Co. v. Trahan, 322 F.2d 234 (5th Cir.1963) and Massey v. Williams-McWilliams, Inc., 414 F.2d 675 (5th Cir.1969).

No case exists which clearly determines the fixed platform’s owner’s duty concerning safe ingress and egress from the platform. However, a vessel owner must provide a passenger a reasonably safe means of boarding a vessel, including the provision of proper gangways, landing places and personnel assistance. See Tittle v. Aldacosta, 544 F.2d 752 (5th Cir.1977) and Arthur v. Flota Mercante Gran Centro Americana, S.A., 487 F.2d 561 (5th Cir.1974).

The passenger, in any event, must also exercise reasonable care and prudence. Since the vessel owner is not an absolute insurer of the passenger’s safety, if the passenger is injured absent vessel owner negligence, no recovery is mandated. The passenger also cannot recover if the carrier’s negligence was not foreseeable or the proximate cause of the injury. Norris, The Law of Maritime Personal Injuries, (3rd Ed.) § 33.

In a very analogous case, Marshall v. Westfal-Larsen and Company, 259 F.2d 575 (9th Cir.1958), the court affirmed a judgment for defendant where plaintiff was injured jumping from a ship to an adjacent barge. Marshall held that the passenger failed to wait for assistance in disembarking the ship and did not heed a crewman’s warnings not to jump from the platform’s gangway to the barge — just as it was rising on the swell and before it reached the crest.

After examining the facts of this case we now find no negligence by either General American Oil or Lafayette Crew Boats. Rather Mr. Counts’ was injured through his own negligence in: (1) attempting to board the M/V BRETT before it was sufficiently close to the platform (2) not timing his step to coincide with the boat’s movement up (3) not utilizing the swing rope so that he could swing back if the boat’s movements were not conducive to boarding and/or (4) not requesting assistance if any was needed. These conclusions are particularly warranted when considering that General American Oil had instructed plaintiff in the applicable procedures. He had boarded crewboats many times in the past and the crewboat captain could have assisted him on the instant occasion if plaintiff had not boarded too soon.

For the foregoing reasons, we deny plaintiffs claim for personal injuries. Since plaintiff receives no recovery here, Continental Insurance Company’s intervention concerning plaintiff’s employer’s compensation benefits must also be dismissed.

THUS DONE AND SIGNED at Lake Charles, Louisiana, this 8th day of November, 1983.


author: FILIPPINE, District Judge.

text:
    Raymond F. WEHNER, Victoria Jean Maxwell, John Steven Lynn, and Noel Robison individually and trading as Robison Enterprises Excavating & Heavy Equipment Repair, on behalf of themselves and all others similarly situated, Plaintiffs, v. SYNTEX CORPORATION; Syntex Agribusiness, Inc.; the Charter Company; Independent Petro-Chemical Corp.; Charter Oil Co.; Northeastern Pharmaceutical & Chemical Company; and Edwin Michaels, Milton Turkel, Daniel Schneider, Bernard Bortz and John Lee, as Trustees of the Last Board of Directors of Northeastern Pharmaceutical & Chemical Company, Defendants.
    No. 83-642 C (2).
    United States District Court, E.D. Missouri, E.D.
    Dec. 30, 1983.
    Murry A. Marks, John Doskocil, Constatin Pulos, Doskocil & Pulos, St. Louis, Mo., Arnold Levin, Laurence S. Berman, Levin & Fishbein, Alan Kanner, Philadelphia, Pa., for plaintiffs.
    Paul S. Brown, Brown, James & Rabbitt, St. Louis, Mo., George Weisz, Cleary, Gottlieb, Steen & Hamilton, New York City, for Independent Petrochemical.
    Roberts & Heneghan, Inc., W. Munro Roberts, Jr., Ted L. Perryman, St. Louis, Mo., for defendants, Northeastern Pharmaceutical & Chemical Co.; Edwin Michaels, John Lee, Milton Turkel.
    Lewis & Rice, F. Wm. McCalpin, Richard A. Ahrens, St. Louis, Mo., Stephen D. Busey, James J. Taylor, Jr., Smith & Hulsey, Jacksonville, Fla., for Charter Co, and Charter Oil Co.
    Hunton & Williams, Joseph M. Spivey, III, Richmond, Va., Robert L. Driscoll, Stinson, Mag & Fizzell, Kansas City, Mo., John J. Cole, Armstrong, Teasdale, Kramer & Vaughan, St. Louis, Mo., for Syntex Corp.
    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, Region VII, U.S. E.P.A., Kansas City, Kan., Keith Onsdorff, Ken Farber, Stuart Hunt, Julie Becker, U.S. E.P.A., Washington D.C., for E.P.A.
   MEMORANDUM ON MOTION TO DISMISS

FILIPPINE, District Judge.

This matter is before the Court on the motion of Independent Petrochemical Corporation (IPC) to dismiss plaintiffs’ complaint for failure to state a claim upon which relief may be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure. This litigation arises out of the activities of Russell Bliss, who although not a party to this litigation, disposed of dioxin laden oil. The plaintiffs allege that “Russell Bliss worked under sub-contract with IPC,” and further assert that “IPC ... knew or should have known the nature and substance of Russell Bliss’s activities.” Plaintiffs seek to recover necessary response costs under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), codified at 42 U.S.C. § 9601-9657. In addition plaintiffs seek damages and injunctive relief based upon various state law claims through the use of this Court’s discretionary power of pendent jurisdiction.

CERCLA was passed by Congress in response to the growing threat to life and well-being posed by hazardous substances and toxic wastes. CERCLA provides “both a comprehensive regulatory scheme for, and a revenue procedure to fund federal responses to, releases of hazardous substances.” Dore, The Standard of Civil Liability for Hazardous Waste Disposal Activity: Some Quirks of Superfund, 57 Notre Dame Law 260 (1981). CERCLA, inter alia, created a hazardous substance response trust fund commonly known as the superfund. 42 U.S.C. § 9631. This fund is to be used in the payment of “governmental response costs in the cleanup of hazardous substance deposits and spills." Dore, supra, 57 Notre Dame Law at 268. 42 U.S.C. §§ 9611, 9631(c)(1)(A). The fund also allows “payment of any claim for any other person as a result of carrying out the national contingency plan ... [pjrovided, however, that such costs must be approved under said plan and certified to the responsible federal official.” 42 U.S.C. § 9611(a)(2).

In addition to claiming against the fund CERCLA allows any person to recover necessary response costs consistent with the national contingency plan from “any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities or sites selected by such persons, from which there is a release, or a threatened release which causes the incurrence of response costs____” This limited right of private action is “notwithstanding any other provision or rule of law,” and subject only to certain specified defenses. 42 U.S.C. § 9607(a). Plaintiffs are asserting a claim against defendants under 42 U.S.C. § 9607.

Defendant IPC asserts, however, that the requirements to be followed when a person is presenting a claim for response costs under the fund must be followed when seeking recovery of response costs against an entity or individual under 42 U.S.C. § 9607. The clear meaning of the statute, however, cannot bear this interpretation. In assessing liability for response costs against those liable under 42 U.S.C. § 9607, CERCLA clearly indicates that liability under § 9607 is not subject to any other provision or rule of law. Thus, liability under 42 U.S.C. § 9607 cannot possibly be governed by the requirements of 42 U.S.C. § 9611 for recovery of response costs under the fund. Plaintiffs therefore do state a claim under CERCLA.

The liability under 42 U.S.C. § 9607 for response costs, however, is limited and far different from the type of liability plaintiffs seek to impose upon defendants under their state law claims. The plaintiffs’ complaint asserts nine different Missouri state law cases of action and involves many complex questions of state law. The legal and factual questions on these state law causes of action clearly substantially predominate the limited issues raised under the CERCLA claim. It is well settled that when “it appears that the state issues substantially predominate, whether in terms of proof, of the scope of the issues raised, or the comprehensiveness of the remedy sought, the state claims may be dismissed without prejudice and left for resolution to state tribunals.” United Mine Workers v. Gibbs, 383 U.S. 715, 726-27, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). Accordingly, in the exercise of its discretion, this Court determines that plaintiffs’ state law claims should be dismissed without prejudice.

MEMORANDUM AND ORDER

This matter is before the Court on the motion of Syntex Corporation to dismiss for lack of personal jurisdiction. Syntex asserts that it lacks sufficient minimum contacts with the state of Missouri to warrant this Court’s exercise of personal jurisdiction over them.

The only claim now pending before this Court is a federal claim under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), codified at, 42 U.S.C. §§ 9601-9657. Syntex’s motion for dismissal, however, centers upon the personal jurisdiction of a federal district court in a diversity action. This suit, however, is no longer based upon diversity or pendent claim. The parties, therefore, should submit memoranda on the proper exercise of personal jurisdiction in a suit based upon federal law.

In accordance with the foregoing,

IT IS HEREBY ORDERED that Syntex Corporation shall have 15 days from the date of this Order to submit memoranda on the basis of personal jurisdiction in an action based upon federal law. The plaintiff shall have 10 days thereafter to submit memoranda in opposition to the memoranda submitted by the defendants.

      . Respond or response as used in CERCLA means "remove, removal, remedy and remedial action." 42 U.S.C. § 9601(25) involving a hazardous substance.

      . Originally the plaintiffs sought to invoke this Court’s jurisdiction based upon diversity of citizenship. 28 U.S.C. § 1331, but now concede that there is not complete diversity as required under Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806). Thus the sole basis for the state law. claim contained within plaintiffs’ complaint is the discretionary doctrine of pendent jurisdiction outlined in United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).

      . The national contingency plan in CERCLA is defined to be "the national contingency plan published under section 1321(c) of Title 33 or revised pursuant to section 9605 of this title." CERCLA required the National Contingency Plan to be revised within 180 days of the enactment of CERCLA. 42 U.S.C. § 9605. The Plan, however, was not revised within the prescribed time and on February 12, 1982, the District Court for the District of Columbia ordered the EPA to publish the revised Plan after providing opportunity for public comment. The EPA published its final version of the revised plan on July 16, 1982. 47 Fed.Reg. 31180 (1982) (to be codified at 40 C.F.R. § 300).


author: SKINNER, District Judge.

text:
    Michael SIMPSON, a/k/a Woods, Petitioner, v. COMMONWEALTH OF MASSACHUSETTS, Respondent.
    Civ. A. No. 81-1193-S.
    United States District Court, D. Massachusetts.
    July 20, 1984.
    Findings, Rulings and Order Oct. 30, 1985.

      Robert A. Murphy, Boston, Mass., for petitioner.
    Michael W. Dingle, Asst. Atty. Gen., Boston, Mass., for respondent.
   MEMORANDUM AND ORDER ON AMENDED MOTION TO DISMISS

SKINNER, District Judge.

This is a petition for a writ of habeas corpus filed by Michael Simpson, a/k/a Woods (“Simpson”). Simpson is currently an inmate at the Massachusetts Correctional Institution in Walpole, Massachusetts. The Commonwealth has answered the petition and moved to dismiss on grounds of failure to exhaust, waiver, and failure to state a claim upon which relief can be granted. The petitioner, by his court appointed counsel, has moved to amend his petition to delete unexhausted claims, has opposed the motion to dismiss, and has asked the court to rule on the merits of the petition and issue the writ.

1. Background Issues.

On January 19, 1977, Simpson, a black man, was convicted in Suffolk Superior Court of rape, and of assault with intent to rape. The victim was a white woman. The court sentenced him to a term of 15 to 25 years at M.C.I. Walpole for the rape and to a from-and-after term of 5 to 10 years at Walpole for the assault with intent to rape. Simpson filed a timely assignment of errors, including inter alia (1) the judge’s failure to disqualify himself; (2) the judge’s allegedly inappropriate comments on the presentation by the prosecutor; (8) the unfair tone generally created by the judge at trial. The Appeals Court of Massachusetts rejected all of Simpson’s claims, Commonwealth v. Simpson, 6 Mass.App. 856, 373 N.E.2d 362 (1978), and the Supreme Judicial Court denied further appellate review, Commonwealth v. Simpson, 375 Mass. 789 (1978). On March 26, 1979, Simpson filed a motion for a new trial, pro se. The motion was based (1) on the prosecutor’s allegedly improper use of his peremptory challenges in order to exclude blacks from the jury, and (2) on prejudice to the defendant resulting from a side bar discussion allegedly within the hearing of the jury pertaining to the defendant’s use of aliases. The motion was denied, and was denied again on appeal to the Appeals Court of Massachusetts. Commonwealth v. Michael Woods, 10 Mass.App. 836, 406 N.E.2d 1054 (1980). The Supreme Judicial Court denied further appellate review on September 30, 1980. Commonwealth v. Michael Woods, 380 Mass. 939 (1980). The petitioner filed his petition for habeas corpus on May 11, 1981. The petition is roughly drafted, and raises a number of issues. The court appointed counsel for the petitioner has moved to amend the petition by deleting two paragraphs which raise issues which the state courts have not considered. This motion is ALLOWED. The remaining paragraphs, 12B and 12D, raise, in substance, the following issues:

(a) Petitioner’s right to a fair trial was denied by the action of the prosecutor in using his peremptory challenges to remove all eligible blacks from the jury;

(b) Petitioner’s right to a fair trial was denied when the jury overheard remarks at a side bar conference at his trial, and his counsel failed to bring the matter to the court’s attention.

(c) Denial of due process in the hearing on the petitioner’s motion for a new trial in Superior Court.

II. Exhaustion of Remedies.

A habeas petitioner must show that he has exhausted his state remedies as to all of the issues raised in his petition. If a petition includes issues which have not been presented to the state courts, I must dismiss it in its entirety. Rose v. Lundy, 455 U.S. 509, 520, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (1982). In order to exhaust a claim, a petitioner must present the substance of the claim to the state courts. It is not necessary that the petitioner highlight the claim in his presentation to the state courts, and it is not necessary that the state courts actually address the issue. Williams v. Holbrook, 691 F.2d 3, 8-9 (1st Cir.1982). However,

[F]or the substance of a claim to have been advanced before the state courts, the same legal theory must have been presented to them. It is not enough that a generalized objection invoking the rule of law now relied on in federal courts was advanced before the state courts.

Id. at 9. Additionally,

It is not enough that all the facts necessary to support the federal claim were before the state courts ... or that a somewhat similar state law claim was made____

Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982); Dougan v. Ponte, 727 F.2d 199 (1st Cir.1984).

The petitioner challenged the prosecutor’s alleged discriminatory abuse of peremptory challenges on his motion for new trial. The denial of this motion was ultimately appealed to the Supreme Judicial Court and upheld. In his brief on appeal of the denial of a new trial, the petitioner argued that under Massachusetts law, he was entitled to a new trial. The prosecution argued that under Massachusetts law he was not entitled to a new trial. As discussed hereinafter, it was absolutely clear that federal law did not entitle the defendant to a new trial. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). In the unusual posture of this case, the petitioner need not return to the state courts to raise the issue of whether or not the federal rule should be reexamined. This is not a case where the state courts should be given “a chance to mend their own fences and avoid federal intrusion”. Engle v. Isaac, 456 U.S. 107, 129, 102 S.Ct. 1558, 1572, 71 L.Ed.2d 783 (1982). In this case, if there is a fence that needs mending, it is a federal fence.

In his argument on appeal, the petitioner argued that the judge had denied both state and federal due process in making his factual finding on the motion for a new trial that the jurors “could not possibly have heard what was happening at the side bar”. This finding precluded extended argument as to whether or not that remark could have prevented the petitioner from receiving a fair trial and the Appeals Court did not rule on this question. The Supreme Judicial Court denied further appellate review. The prosecutor, however, cited federal law for the proposition that even if the jury had overheard the remark, the defendant would not have been deprived of a constitutional right. The state courts have had adequate opportunity to consider federal law on those issues.

The petitioner has duly exhausted his state remedies. The respondent also argues that the petitioner waived the issues he now raises by failing to present them at trial. Were this true, under Wainright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), I would be barred from reviewing these issues, in the absence of justification. There was ample justification for not raising the question of peremptory challenges, since at the time of trial both state and federal law were squarely against the petitioner’s position. Moreover, the state courts exercised their discretion and fully heard the issues raised by the present petition despite the procedural default. Not only was the motion for a new trial entertained, but its denial was reviewed on appeal. The state appellate courts have had the “chance to mend their own fences and avoid federal intrusion”. Engle v. Isaac, 456 U.S. 107, 129, 102 S.Ct. 1558, 1572, 71 L.Ed.2d 783 (1982).

III. Preliminary Conclusions and the Need for Development of a Factual Record.

A. Unconstitutional Empanelment of the Jury.

The petitioner alleges that he was tried and convicted by an all-white jury after the prosecutor used his peremptory challenges to remove all blacks from among the jurors. The petitioner asserts that this procedure violated the United States Constitution. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), holds squarely to the contrary. In Swain, the Supreme Court considered at length the purposes served by the peremptory challenge system and concluded

[W]e cannot hold that the Constitution requires an examination of the prosecutor’s reasons for the exercise of his challenges in any given case. The presumption in any particular case must be that the prosecutor is using the State’s challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negros were removed from the jury or that they were removed because they were Negroes.

380 U.S. at 222, 85 S.Ct. 837. The petitioner has not alleged any circumstance which would allow this court to distinguish the holder of Swain. The facts of Swain were at least as troublesome as the facts of the present case. Swain, a 19-year old black, had been indicted for the rape of a 17-year old white woman, and had been convicted and sentenced to death by an all-white Alabama jury. 380 U.S. at 231.

The petitioner seeks to escape the force of Swain in two ways. First, he suggests that Swain rests only on equal protection grounds and the Court did not consider whether the jury selection violated due process. Although the Court does refer specifically to the equal protection clause, 380 U.S. at 221, 85 S.Ct. at 836, the Court’s reasoning is equally applicable to considerations of due process. The Court’s conclusion in Swain followed from a review of the purposes served by the peremptory system “in a pluralistic society”. 380 U.S. at 222, 85 S.Ct. at 837. The Court found that the system serves to guarantee

not only freedom from any bias against the accused, but also from any prejudice against his prosecution. Between him and the state the scales are to be evenly held.

380 U.S. at 220, 85 S.Ct. at 835, citing Hays v. Missouri, 120 U.S. 68, 70, 7 S.Ct. 350, 351, 30 L.Ed. 578 (1887).

Second, the petitioner suggests that given other alleged errors — some of which were raised in the state courts, but none of which are raised in the current petition— and given the racial sensitivity of the case, the exclusion of blacks from the jury contributed to a general atmosphere of prejudice which deprived the petitioner of due process. The Supreme Court rejected this style of analysis of the general “atmosphere” of the trial in Rose v. Dundy, 455 U.S. 509, 511-513, 519, 102 S.Ct. 1198, 1199-1200, 1203, because it defeats the purpose of the exhaustion principle by allowing the federal court to consider unexhausted claims. If I follow Swain, I cannot allow the prisoner’s petition.

Recently, however, the Supreme Court has indicated that it is ready to reconsider Swain. Dissenting from the denial of certiorari in McCray v. New York, Justice Marshall stated:

In the nearly two decades since it was decided, Swain has been the subject of almost universal and often scathing criticism. Since every defendant is entitled to equal protection of the laws and should therefore be free from the invidious discrimination of state officials, it is difficult to understand why several must suffer discrimination because of the prosecutor’s use of peremptory challenges before any defendant can object.

461 U.S. 961, 103 S.Ct. 2438, 2440, 77 L.Ed.2d 1322 (1983) (emphasis in original) (footnote omitted). Justice Marshall noted that

For these reasons, some leading state courts have declined to follow Swain in interpreting state constitutional provisions. State v. Crespin, 94 N.M. 486, 612 P.2d 716 (1980); Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499 (1978), cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979); People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978). Cf. People v. Payne, 106 Ill.App.3d 1034, 62 Ill.Dec. 744, 436 N.E.2d 1046 (1982).

103 S.Ct. at 2441. Justice Brennan joined Justice Marshall’s dissent. Justice Stevens, in an opinion joined by Justice Black-mun and Justice Powell, agreed with

Justice Marshall’s appraisal of the importance of the underlying issue — whether the Constitution prohibits the use of peremptory challenges to exclude members of a particular group from the jury, based on the prosecutor’s assumption that they will be biased in favor of other members of the same group.

103 S.Ct. at 2438. Justices Stevens, Black-mun and Powell voted with the majority to deny certiorari, because they believed that

Further consideration of the substantive and procedural ramifications of the problem by other courts will enable us to deal with the issue more wisely at a later date.

Id.

Justices Marshall and Brennan believe Swain should be discarded. The three justices joining in Justice Stevens’ opinion invite other courts to reconsider Swain. I do not read their invitation as limited to the state courts. Justice Stevens noted the absence of conflict within the federal system as a reason for denying certiorari. Without contrary decisions in lower courts, there can be no conflict within the federal system. While it is highly unusual for a district court to re-examine a Supreme Court opinion squarely on point, I read five Justices of the Supreme Court as inviting the lower federal courts to do just that. In this reading, I follow Judge Nickerson of the Eastern District of New York who drew the McCray habeas petition. Nicker-son ordered a new trial for McCray rejecting the holding of Swain. McCray v. Abrams, 576 F.Supp. 1244 (1983).

The facts in this case preclude disposition of this case on the ground that any error was harmless. Simpson was convicted on his alleged victim’s testimony which, even if true, made out only the thinnest of rape cases. Ms. Porcari testified as follows at trial:

She met the defendant for the first time late on a Saturday evening while she was working at a radio station. He came in to visit an announcer whom he knew. The two found themselves in the same elevator at the end of the evening. Simpson walked the young woman home, even though she said she did not want his company. The two walked over ten blocks, passing a cab stand where there were several cabs and an all-night drug store where a police cruiser is often parked. Ms. Porcari did not take these opportunities to seek help. While they walked, she talked to him about her crush on an announcer at the radio station. When they got to her apartment, Simpson grabbed her key and opened the door. She would not go in, and sat on the doorstep and cried. He kept asking her whether she was going to sit outside all night and cry, or whether she was going to come in. Eventually, she went in. She performed oral sex on him after he threatened to hurt her. He did not hurt her, and in fact told her, “I won’t f— you unless you want me to.” They did not have intercourse that night, and she went to work at 9:00 the next morning, leaving him alone in her apartment.

She did not talk to anybody about the incident, and did not seek protection before returning to her apartment shortly after noon. She was surprised to find that Simpson was still in her apartment. The two listened to the radio and he forced her to have sex with him in her bedroom until about 2:00 p.m. She made lunch for him, and gave him a shirt to wear. When he left at about 9:00 p.m., he left his shirt for her to clean or send out. She spoke to him on the phone for about an hour at 4:00 a.m. on Monday morning. She next talked to him on Thursday, after work. Over the phone, he threatened and cajoled her into letting him come over for his shirt. He came over, and she let him in through three locks. When he came in, she was talking on the phone, but didn’t tell the person on the other end of the line that there was any problem. Simpson waited around for her to finish her conversation. Simpson then told her she was going to perform oral sex on him, and when she refused, he started to grab her hands. She ran to the front door and screamed. A fight ensued and eventually help arrived.

These facts allowed for different inferences about the voluntariness of Ms. Porcari’s intercourse with Simpson. Racial prejudice could easily lead white jurors to draw inferences against the petitioner. According to the allegations of Simpson’s habeas petition, the prosecutor used his peremptory challenges to eliminate all blacks from the jury.

The five justices of the Supreme Court invite re-examination of Swain, not necessarily its abandonment. The Court’s arguments, in support of Swain, are powerful and still should command respect. If it is possible to do so, the courts should make some pragmatic comparison on the effect on trial practice of the rule in Swain and its opposite. Happily, in the courts of the Commonwealth of Massachusetts, we have the advantage of six years’ experience with limitation of peremptory challenges which seek to exclude a discrete and identifiable segment of the community.

In Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499 (1979), the Supreme Judicial Court refused to incorporate the Swain rule into the Massachusetts constitution. The court viewed Article 12 of the Massachusetts Declaration of Rights as

proscribing ... the use of peremptory challenges to exclude prospective jurors solely by virtue of their membership in, or affiliation with, particular, defined groupings in the community.

387 N.E.2d at 515. The court first established a presumption of proper use of peremptory challenges, and then limited its scope as follows:

That presumption is rebuttable ... by either party on a showing that (1) a pattern of conduct has developed whereby several prospective jurors who have been challenged peremptorily are members of a discrete group, and (2) there is a likelihood they are being excluded from the jury solely by reason of their group membership.

387 N.E.2d at 517 (footnote omitted).

Once the judge determines that the presumption has been rebutted, the burden shifts to the allegedly offending party to demonstrate, if possible, that the group members of disproportionately excluded were not struck on account of their group affiliation____[sic] “... [W]e rely on the good judgment of the trial courts to distinguish bona fide reasons for such peremptories [sic] from sham excuses belatedly contrived to avoid admitting facts of group discrimination.”

Id. (quoting People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978)). The Supreme Judicial Court followed Wheeler in fashioning a remedy in the event the trial judge finds that the use of peremptory challenges has been predicated on group affiliations:

“If the court finds that the burden of justification is not sustained as to any of the questioned peremptory challenges, the presumption of their validity is rebutted. Accordingly, the court must then conclude that the jury as constituted fails to comply with the representative cross-section requirement, and it must dismiss the jurors thus far selected. So too it must quash any remaining venire, since the complaining party is entitled to a random draw from an entire venire — not one that has been partially or totally stripped of members of a cognizable group by the improper use of peremptory challenges. Upon such dismissal a different venire shall be drawn and the jury selection process may begin anew.”

387 N.E.2d at 518 (quoting People v. Wheeler). The prosecution shares this right to a representative jury under Massachusetts constitutional law. 387 N.E.2d 517, fn. 35.

Accordingly, I shall hold an evidentiary hearing on the petitioner’s allegations and shall expect testimony to be offered on the impact of Soares on criminal trial practice in Massachusetts.

B. Prejudicial Remarks in the Jury’s Hearing.

The other event which the petitioner contends mandates a reversal of his conviction was a remark by the prosecutor during a bench conference. In discussing the proper way to refer at trial to the defendant, who had used several aliases in the past, the prosecutor said, “The FBI knows him as Woods”. Petitioner insists that he heard this remark, and that given his proximity to the jury at the time, the jury must also have heard it and must have been prejudiced by it. This conference occurred just after the venire was first brought into the courtroom. The petitioner’s trial counsel did not object at the time, but the possibility of prejudice was raised on motion for a new trial. The judge found that the jury “could not possibly have heard what was happening at the side bar”.

State court evidentiary rulings may be questioned in federal habeas proceedings only when they render the trial “so fundamentally unfair as to constitute a denial of federal constitutional rights”. Brinlee v. Crisp, 608 F.2d 839, 850 (10th Cir.) cert. denied 444 U.S. 1047, 100 S.Ct. 737, 62 L.Ed.2d 733 (1980). The present case might be compared (1) to cases where aliases were included on an indictment, e.g., U.S. v. Cowden, 545 F.2d 257, 267 (1st Cir.) cert. den., 430 U.S. 909, 97 S.Ct. 1181, 51 L.Ed.2d 585 (1977); U.S. v. Miranda, 494 F.2d 783, 788 (5th Cir.) cert. den., 419 U.S. 966, 95 S.Ct. 228, 42 L.Ed.2d 181 (1974); U.S. v. Skolek, 474 F.2d 582, 586 (10th Cir.1973); U.S. v. Wilkerson, 456 F.2d 57, 59 (6th Cir.) cert. den., 408 U.S. 926, 92 S.Ct. 2506, 33 L.Ed.2d 337 (1972); (2) to cases involving prejudicial remarks to the jury, e.g., U.S. v. Flaherty, 668 F.2d 566, 592-598 (1st Cir.1981). These cases make clear that there is no per se rule requiring a new trial when the jury learns that the defendant has used aliases.

Even assuming that some members of the jury overheard the prosecutor’s remark, this would not render the trial “so fundamentally unfair” as to require habeas relief. Nothing in the isolated remark compelled the jury to draw any particular inference about Simpson. Accordingly, I ALLOW the respondent’s motion to dismiss as to these allegations.

IV. Conclusion.

The petitioner’s motion to amend is ALLOWED. The respondent’s motion to dismiss is ALLOWED in part. The' parties will appear for a pre-hearing conference on September 4, 1984 at 3:30 p.m. It is my intention to call expert witnesses on the operation of peremptory challenges in Massachusetts. If the parties intend to offer experts of their own, or if they have suggestions for court appointed experts, they will present the experts’ names and qualifications at the pretrial conference.

FINDINGS, RULINGS AND ORDER

Prior proceedings are outlined in my Memorandum and Order on Amended Motion to Dismiss dated July 20, 1984. The findings, rulings and conclusions contained therein are incorporated and restated herein. In summary, I concluded that the petitioner had exhausted his state remedies and that if there was constitutional error it was not harmless. Thereafter hearings were held on December 19, 1984 and January 25 and 31, 1985. The purpose of these hearings was twofold:

1. To determine if blacks had been excluded from the jury by racially biased exercise of peremptory challenges by the prosecution.
2. To determine the effect of the decision of the Supreme Judicial Court in Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499 (1979), which prohibits racially biased use of peremptory challenges, upon the prosecution of criminal cases in the Commonwealth of Massachusetts.

At these hearings evidence was presented from which I make the following findings of fact:

1. The petitioner, who is black, was tried in the Superior Court for Suffolk County for rape and assault with intent to rape of a white woman. The trial occurred in January, 1977 before the Soares case was decided.
2. Many defense lawyers observed that it was routine, if not invariable practice in Suffolk County, for the assistant district attorneys to challenge every black juror that they could when the defendant was black and a victim was white.
3. At the petitioner’s trial, the prosecution challenged all of the black jurors selected for the panel, of which there were at least three and possibly as many as five.
4. The assistant district attorney cannot now remember why he challenged the black jurors, at least two of whom were women, but he in general challenges on the basis of “hunches”, trying to get jurors who were employed, respectable, solid citizens of the type who would pay their bills.
5. One of the black jurors challenged by the prosecution was an electronic technician for the postal department. This juror testified at trial and gave the appearance of an eminently respectable payer of bills.

I conclude that the prosecutor’s “hunches” were to the effect that black jurors would be less favorable to conviction than would white jurors; i.e., that he exercised his peremptory challenges on a racial basis. In Suffolk County at that time, without a rule to the contrary, I would have considered that to be virtually inevitable and to reflect no special opprobrium on the particular assistant district attorney.

On the basis of undisputed testimony from a number of distinguished defense lawyers I conclude that prior to Soares it was the perception of most black defendants in Suffolk County that they could not get a fair trial. Since Soares that perception is less pronounced. The general atmosphere of trial for a black defendant has markedly improved. There has been no detriment to either the prosecution or the defense of criminal cases in the Commonwealth’s courts as a result of the Soares decision.

Since my memorandum of July 20, 1984, there have been significant developments on this subject. In United States v. Leslie, 759 F.2d 366, reh’g en banc granted, 761 F.2d 195 (5th Cir.1985), the Court of Appeals of the Fifth Circuit adopted a rule prohibiting racially discriminatory peremptory challenges as a matter of supervising control of federal trials, but not on constitutional grounds. In McCray v. Abrams, 750 F.2d 1113 (2d Cir.1984), the Court of Appeals for the Second Circuit held that while the holding of Swain v. Alabama was conclusive on the subject of equal protection, racially motivated exercise of peremptory challenges was prohibited under the Sixth Amendment. The case was remanded to the district court, however, so that hearings could be held allowing the state prosecutor to offer evidence justifying the challenges on other grounds.

In United States v. Campbell, 766 F.2d 26 (1st Cir.1985), our Court of Appeals found that the district judge had followed a procedure for testing the prosecution’s use of peremptory challenges that was at least as stringent as that required by McCray v. Abrams, supra. Accordingly, it did not have to face the legal issue.

The Commonwealth has called to my attention a Memorandum and Order of the Appeals Court denying an application for a certificate of probable cause to appeal a denial of a writ of habeas corpus in Reddick v. Callahan, No. 84-1588, October 30, 1984. While such orders are not published opinions of the court having binding force or precedential value, nevertheless this order reveals a concern of the court which I should address. Reddick raised the same issue as does the petitioner in this case. The court points out that the state courts which have rejected Swain have not made the ruling retroactive to cases in which judgment had become final prior to the announcement of the new ruling. E.g., Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499 (1979).

In fact, however, every time a new constitutional rule is discovered it is applied retroactively in at least the case in which the rule is announced. The Supreme Court recognized this fact when it decided whether the rule in Mapp v. Ohio should be applied retroactively in Linkletter v. Wallace, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). Justice Clark, writing for the majority, noted that the Court was not considering pure prospectivity since the rule had already been applied to reverse Mapp’s conviction. Id. at 622, 85 S.Ct. at 1733. In the context of federal habeas corpus, the discovery of a new constitutional rule of necessity applies that rule to a case in which judgment has become final, the case of the petitioner himself.

Retroactivity ordinarily is considered only in a subsequent case in which final judgment was entered before the announcement of the new rule. This was the posture of the instant case in the context of Massachusetts jurisprudence. Simpson’s conviction became final prior to the decision in Soares and therefore the Soares rule was not applied retroactively to Simpson’s case. The Massachusetts decision against retroactivity in a subsequent case is in line with federal law. E.g., Linkletter v. Wallace, supra; Tehan v. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1965); Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); and Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975), in which the appropriate considerations were considered at length by a divided court, viz., Justice Douglas’ dissent at 420 U.S. at 34, 95 S.Ct. at 706.

With respect to this federal habeas corpus petition, however, the issue is not whether an announced rule is to be applied retroactively, but whether a new rule (new at least in this circuit) is to be announced and applied to the petitioner’s case.

I see no reason why it should not be. The reasoning of the Second Circuit Court of Appeals in McCray v. Abrams, supra, is persuasive. As indicated in my memorandum of July 20, 1984, the petitioner was convicted on the thinnest of evidence, so there is no question of harmless error. There is a record in this case showing that the rule the petitioner seeks has worked well in Massachusetts since the Soares decision in 1979, with no disadvantage to either prosecution or defense.

Accordingly, I rule that the racially biased exercise of peremptory challenges by the prosecution fatally tainted the selection of the petitioner’s trial jury in violation of his rights under the Sixth Amendment to the Constitution of the United States as made applicable to the states by the Fourteenth Amendment. I further rule that the error was not harmless and the petitioner has standing to prosecute this application.

Unless the Commonwealth gives the petitioner a new trial within ninety days, the writ shall issue.

Whether the rule of this case should apply retroactively to another similarly situated petitioner is a question which may be postponed to another day.

      . I particularly inquired about the effect on the defense because the only case of racially biased challenges which I personally observed was that of a white defendant who challenged three black jurors because the prosecuting DEA officer was a black woman. Racially biased exercise of challenges is prohibited to both prosecution and defendant under Soares.


author: IRVING, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Harold R. ANDERSON, Craig A. Anderson, Defendants.
    No. 84-0925-JLI-Crim.
    United States District Court, S.D. California.
    Jan. 9, 1985.

      Patrick K. O’Toole, Asst. U.S. Atty., San Diego, Cal., for plaintiff.
    Peter J. Hughes, A Professional Corp., San Diego, Cal., John G. Phillips, San Diego, Cal., for defendants.
   MEMORANDUM DECISION AND ORDER

IRVING, District Judge.

Defendants’ motion to suppress evidence came on for hearing, at 2:00 P.M. December 10, 1984, before the Honorable J. Lawrence Irving. Patrick K. O’Toole appeared on behalf of the government; Peter J. Hughes appeared on behalf of defendant Harold R. Anderson, John G. Phillips appeared on behalf of defendant Craig A. Anderson.

Having considered the pleadings, the testimony presented and the oral argument of counsel, the court issues the following memorandum decision.

FACTUAL BACKGROUND

On October 7, 1984, at 7:40 A.M., San Diego County Narcotics Task Force Officer Robert Baker made a telephonic application to San Diego County Municipal Court Judge Runston G. Maino for a warrant to search defendants’ residence located at 782 Knoll Park Lane, Fallbrook, CA (hereinafter “782 Knoll Park”). Officer Baker verbally presented the following information to Judge Maino. At 3:00 A.M. that morning Fallbrook police deputies Morrell and Pine responded to a prowler call at 861 Hillpark Lane, Fallbrook, which is a residence at the rear of 782 Knoll Park Lane. While inspecting the rear yard of the 861 Hillpark Lape residence, they observed a hole in a fence dividing the 861 Hillpark and 782 Knoll Park properties. The officers then spoke with a man standing on the Knoll Park property. They informed the man that they were responding to a prowler call and directed his attention to the hole in the fence and footprints leading to his property. The man told the officers that he had inspected his property and that he believed the prowler had left.

Ten to fifteen minutes later, Officers Morrell and Sime stopped a suspicious vehicle, approximately one mile from the Knoll Park residence. The vehicle contained four people; Steven Laszko and three juveniles. The three juveniles were arrested for curfew violations and Laszko was arrested for attempted burglary. All were taken to the Fallbrook Police substation and read their Miranda rights. Laszko told the officers that he had been at 782 Knoll Park that evening and saw two greenhouses with marijuana growing inside. Laszko also told the officers that he had taken a short: cut through the property a month before and had seen many marijuana plants in two greenhouses at that time, and had noticed an overwhelming marijuana odor. He also said that on the evening of October 7, 1984, he and the three juveniles had gone to the property to steal some marijuana.

Officer Baker then told Judge Maino that all three juveniles had been interviewed by Deputy Morrell and all had corroborated Laszko’s story. The juveniles reported that they had gone to 782 Knoll Park to steal marijuana, plants with Laszko and while there were confronted by an individual with a shotgun. Baker also reported that one of the juveniles admitted having gone to the 782 Knoll Park property on one prior occasion and stealing marijuana plants. Baker told Judge Maino that the deputies had recovered a plastic bag containing a marijuana bud from one of the juveniles who admitted acquiring the bud at the Knoll Park property.

Laszko was then sworn as a witness by Judge Maino, and questioned by the Deputy District Attorney William Holman. Laszko admitted to being at the property on two prior occasions, and finding six foot marijuana plants in two greenhouses there. He also admitted going there at midnight that evening, in the company of the three juveniles. Laszko told Judge Maino that he had jumped a fence to get onto the property, while the juveniles crawled through a hole in the fence. Laszko said that as they were prowling about the property they encountered a man with a shotgun, and they fled. Through the Deputy District Attorney’s questioning, it was established that Laszko had had prior experiences with marijuana and that while on the property on October 7, 1984, he had seen silhouettes of plants that appeared to be marijuana and had detected the odor of marijuana.

Based upon the foregoing, and further testimony regarding Agent Baker’s knowledge of marijuana cultivation in the Fall-brook area, Judge Maino issued a search warrant for the premises at 782 Knoll Park.

The officers executed the warrant at 8:30 A.M. that morning. Large plant potters with freshly turned, moist soil, containing marijuana debris were found. Two illegal aliens were also found, one in the guest house on the property and the other near one of the greenhouses. The aliens informed the officers that they aided the two Andersons in loading plants into a truck earlier that morning and the truck then drove away. Defendants move to suppress this evidence, and the fruits thereof, as products of a search pursuant to an illegal search warrant.

DISCUSSION

The court addresses only one issue arising from this motion: Whether in a federal prosecution, state or federal law should be applied to defendants’ motion to suppress evidence acquired in a search conducted by a state officer pursuant to a warrant issued by a state magistrate? Defendants argue that state law should be applied. They further argue that the warrant issued by Judge Maino is illegal under California law and the evidence recovered must be suppressed. The government argues that the legality of the warrant should be adjudged by the federal standard set forth in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

The Ninth Circuit has not yet decided this issue. The Ninth Circuit addressed the issue in dicta in United States v. Henderson, 721 F.2d 662, 665 (9th Cir.1983) cert. denied — U.S. -, 104 S.Ct. 2665, 81 L.Ed.2d 370:

We believe that it would undercut the deterrent function of a state’s exclusionary rule if state officers were able to turn illegally seized evidence over to federal authorities whenever they suspected the subject of the investigation of an offense susceptible to federal as well as state, prosecution. We think there is much to be said for the argument that federal courts should, in the interest of comity, defer to a state’s more stringent exclusionary rule with respect to evidence secured without federal involvement.

Mindful of the Ninth Circuit’s statement, this court finds that the situation contemplated in Henderson is not present here. In this instance, the court finds that there was no bad faith forum shopping on the part of the Narcotics Task Force (hereinafter “NTF”) agents. NTF Agent Baker testified that this case was brought to federal authorities for prosecution for the following reasons: 1) it appeared to be more sophisticated than other marijuana cases, 2) he expected conspiracy to be charged, 3) two of the material witnesses were illegal aliens, and 4) he anticipated forfeiture proceedings to be initiated. Agent Baker also testified that the fact that the search might be illegal under state law did not enter into his decision to bring the case to the U.S. Attorney’s Office.

The absence of bad faith in this case is also supported by Agent Baker’s testimony that in his jurisdiction, telephonic search warrants are not available from federal magistrates. In this instance, agents had no choice but to go to a state magistrate.

In other cases where Fourth Amendment challenges required a selection between state or federal law, the Ninth Circuit and other circuits have applied federal law. In United States v. Smith, 595 F.2d 1176, 1179 (9th Cir.1979) the Ninth Circuit held that the District Court was correct in making an independent inquiry on the constitutional validity of an automobile search conducted by state officers, irrespective of the suppression of the same evidence by the state court. See also United States v. Garrett, 680 F.2d 650, 651 (9th Cir.1982) (District Court required to make independent inquiry into admissibility of state-supplied evidence in federal proceeding without regard to previous suppression in state action). Accord United States v. Staller, 616 F.2d 1284, 1298 n. 7 (5th Cir.1980), (District Court should apply federal, not state law, in motion to suppress evidence obtained in inventory search conducted by state police). The Ninth Circuit has also held that the admissibility in federal court of evidence obtained through electronic surveillance, which may have violated state law, should be judged by application of a federal constitutional and statutory law. United States v. Keen, 508 F.2d 986, 989 (9th Cir.1974); United States v. Hall, 543 F.2d 1229, 1234-35 (9th Cir.1976).

The Eighth Circuit has held that whether evidence obtained by state officers and used against a defendant in a federal trial was obtained by an unreasonable search and seizure is to be judged as if the search and seizure had been made by federal officers. United States v. Montgomery, 708 F.2d 343, 344 (8th Cir.1983); United States v. Ross, 713 F.2d 389, 393 n. 7 (8th Cir.1983).

The court feels that federal constitutional law applies. This case was initially filed by federal prosecutors in federal court and as a rule, federal constitutional law applies.

Applying the test established in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) the court finds that Judge Maino had probable cause to issue a warrant. Given the totality of the circumstances, including the corroborated telephonic affidavit of Laszko, the court finds that there was a fair probability that contraband or evidence of a crime would be found at 782 Knoll Park Lane. Accordingly,

IT IS ORDERED that defendants’ motion to suppress is denied.

      . The record does not identify the man and is unclear as to the positioning of the officers at the time of the conversation.

      . The record does not indicate whether the marijuana bud was acquired on the October 7 trip to 782 Knoll Park or on the earlier visit.

      . Laszko later testifies that after his initial discovery of marijuana at the 782 Knoll Park address, he returned to the property four times.

      . Because the court applies a federal standard, it does not address the question of what the state standard would be or whether the search warrant was legal under state law.

      . The court recognizes that this prosecution may differ from that in Henderson in that the involvement of the Narcotics Task Force may be construed as federal involvement. The court recognizes that the Narcotics Task Force is a hybrid agency receiving federal funds and training. In view of the court’s holding, it is unnecessary to enter into the unwieldy task of determining the extent of federal involvement. The court feels that the test applied by the Third Circuit, which requires determination of whether an investigation is state or federal in character and measurement of the extent of involvement by federal officers, is unworkable and provides little guidance to agents in the field. See United States v. Bedford, 519 F.2d 650 (3d Cir.1975). Thus, for the purposes of this motion, the court will assume that warrant was sought by state officers.


author: GLEN M. WILLIAMS, District Judge.

text:
    Rhoda LESTER, Plaintiff, v. William LUKHARD, James Kenley and Margaret Heckler, Defendants.
    Civ. A. No. 84-0194-A.
    United States District Court, W.D. Virginia, Abingdon Division.
    Feb. 1, 1985.

      Martin Wegbreit, Castlewood, Va., for plaintiff.
    Julia Krebs-Markrich, Asst. Atty. Gen., Richmond, Va., Morgan E. Scott, Asst. U.S. Atty., Abingdon, Va., Javier Arrastia, Philadelphia, Pa., for defendants.
   MEMORANDUM OPINION

GLEN M. WILLIAMS, District Judge.

The plaintiff, Rhoda Lester, alleges that her rights have been violated by the defendants’ refusal to make a determination of disability that is independent of the determination made by the Social Security Administration. Defendants William Lukhard and James Kenley are the Commissioners of the Virginia Departments of Welfare and Health, respectively; Margaret Heckler is the Secretary of the United States Department of Health and Human Services. The complaint against Secretary Heckler has been dismissed for failure to state a claim upon which relief can be granted. The case is before the court on the plaintiff’s motion for relief from the order dismissing the Secretary, the plaintiff’s motions for leave to amend and for class certification and the defendants’ motion for summary judgment. Jurisdiction is conferred by 28 U.S.C. § 1331, 28 U.S.C. § 1343 and 42 U.S.C. § 1983.

Medicaid is a joint federal-state program established to provide medical assistance to eligible individuals. Virginia provides Medicaid coverage to all persons who qualify as categorically or medically needy. The categorically needy include those who receive Supplemental Security Income (SSI). Medically needy persons meet state-established Medicaid income standards for a six-month period when their income is reduced to or below the limit by medical expenses incurred during that period. The Buchanan County Department of Social Services (DSS) determines the plaintiff’s eligibility for Medicaid.

The defendants’ policy is that DSS’s determination of disability will be the same as that of the Social Security Administration. Virginia may use a more restrictive definition of disability than that used by SSI. 42 C.F.R. § 435.121(a). However, it may not use a more liberal definition of disability than that used by SSI. 42 C.F.R. § 435.121(b)(1). Because Virginia uses the same definition of disability as SSI, it generally relies upon disability determinations made by SSI in order to avoid duplicative examinations. An independent determination of disability is made when the applicant shows that his condition has changed since the SSI determination, if the applicant has been found ineligible for SSI because of his income, if he chooses not to apply for SSI or if his situation requires an immediate determination while an SSI application is pending.

The plaintiff was denied Medicaid benefits on the ground that she is not disabled. The denial was based upon a disability determination made by SSI. The plaintiff brought this action to attempt to require the defendants to make an independent determination of disability. At a motion hearing before the court, the plaintiff for the first time showed the defendants that she had incurred medical costs after the SSI determination. Due to this showing of changed condition, an independent determination of disability was made. It appearing to the court that the plaintiff has been provided the only relief sought, there remains no case or controversy to be decided.

The plaintiff urges the court that voluntary cessation of allegedly illegal conduct does not render a case moot. There is a line of United States Supreme Court decisions standing for that proposition. DeFunis v. Odegaard, 416 U.S. 312, 318 (1973). In that case, a student alleged racial discrimination resulting from a law school’s admissions policy. Id. The doctrine would have been relevant in DeFunis if the question of mootness had arisen by reason of a unilateral change in the admission procedures. Id. Instead,- the case was moot because the student had been admitted and was in the final quarter of his course of study. Id. Similarly, the present case is moot not because Virginia has changed its policy, but because the plaintiff has been granted the relief sought under the challenged policy.

The plaintiff further suggests that this case presents a question that is “capable of repetition, yet evading review,” Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911), and therefore should be decided even though it would otherwise be moot. The plaintiff has relied upon a case from the Court of Appeals for the Fourth Circuit to support her position. That case challenged a Virginia statute which allowed the garnishment of Social Security benefits. Harris v. Bailey, 675 F.2d 614 (1982). In Harris, the court found that, even though the garnished money had been returned to the appellant, her poverty made it likely that she would again be subject to the same procedure. Id. at 616. The court found substantial public interest in having the suit considered because of the deprivation of personal property under the statute. Id., citing Hammond v. Powell, 462 F.2d 1053 (4th Cir.1972). In Hammond, the plaintiff challenged a South Carolina repossession statute. Id. The Harris court found that each case challenged a brief procedure that was capable of repetition, yet evading review. Id. The procedure challenged here is not so brief that it could not be adjudicated while a live issue exists. Additionally, there has been no deprivation of personal property to justify an exception to the case or controversy requirement. The plaintiff has failed to convince the court that the matter would evade review were a claimant denied an independent determination of disability required by the regulations.

The plaintiff would save her action from being dismissed as moot by amending her complaint and moving the court to certify a class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure.

The proposed class consists of all persons who have applied for Medicaid under SSI-related eligibility since February, 1984 or who will apply and who have not or will not be provided an independent determination of disability. This class includes persons who have been found to be disabled by SSI as well as those who have been found not disabled. A second determination of disability could cause some members of the class to lose their Medicaid eligibility. For this reason the plaintiff cannot be said to fairly and adequately protect the interests of the class in seeking independent determinations of disability for the class. Fed.R.Civ.P. 23(a)(4). For this reason, the court is of the opinion that the motions for leave to amend the pleadings and for certification of the class should be denied. Accordingly, the defendants are entitled to summary judgment. Fed.R.Civ.P. 56.