author: HAND, Chief Judge.

text:
    STATE OF ALABAMA ex rel. Chris N. GALANOS, Plaintiff, v. STAR SERVICE & PETROLEUM CO., INC., Defendant.
    Civ. A. No. 85-0962-H.
    United States District Court, S.D. Alabama.
    Aug. 8, 1985.
    Thomas M. Galloway, Jr., Mobile, Ala., for plaintiff.

      Mark G. Arnold, Ronald P. Slepian, Mobile, Ala., for defendant.
   ORDER

HAND, Chief Judge.

This case calls upon the Court to decide whether the state of Alabama is the real party plaintiff. If so, this case must be remanded to state court. If not, a plethora of legal conundrums arise. Fortunately, Pandora’s box remains shut, as this case is to be remanded.

Having thus stated the solution, the Court reveals the circumstances and reasoning behind this decision.

On July 18, 1985, Chris N. Galanos, the district attorney for Mobile County, Alabama, filed an action under the Alabama Motor Fuel Marketing Act, (the Act), codified at Ala.Code §§ 8-22-1 to 8-22-18 (1975). This Act is apparently designed to forestall “price wars” between retail gasoline dealers in Alabama. Section 8-22-16(b) authorizes any district attorney to sue to enforce the Act. Alleging violations thereof, the plaintiff has sued the defendant, Star Service & Petroleum Co., Inc., (Star), seeking injunctive relief as well as the civil penalty authorized by the statute.

Star has filed a removal petition with this Court under 28 U.S.C. § 1441(a), alleging diversity of citizenship, 28 U.S.C. § 1332(a)(1), as the ground for jurisdiction. Plaintiff promptly moved for remand to state court, thereby conjuring up this memorandum.

Star is incorporated under the laws of Illinois, with its principal place of business in Missouri, making it a citizen of both of those states. 28 U.S.C. § 1332(c) (1976). As Mr. Galanos is a citizen of Alabama, diversity appears to exist. However, the plaintiff maintains that Mr. Galanos is acting only on behalf of the state of Alabama, which is the real plaintiff. The defendant’s rejoinder to this is that Mr. Galanos is acting unconstitutionally, and hence only in his individual capacity. Thus, according to Star, the state is not the actual plaintiff.

Each party in this case has the benefit of resting its position on bedrock foundations in constitutional law. Thus, it is absolutely undisputed that a state, qua state, is not a citizen for purposes of the diversity statute. Ford Motor Co. v. Dept. of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945); State Hwy. Com’n v. Utah Constr. Co., 278 U.S. 194, 49 S.Ct. 104, 73 L.Ed. 262 (1928); Fitts v. McGhee, 172 U.S. 516, 19 S.Ct. 269, 43 L.Ed. 535 (1899); Postal Tel. Cable Co. v. State of Alabama, 155 U.S. 482, 15 S.Ct. 192, 39 L.Ed. 231 (1894). It is equally undisputed that the Eleventh Amendment does not bar suits in federal court against state officers who are acting unconstitutionally. Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Moreover, when a state agency files an action in state court the out of state defendant may remove on the basis of diversity if the state is not the actual party plaintiff. Missouri, Kan. & Tex. Ry. v. Bd. of R.R. & Warehouse Com’rs., 183 U.S. 53, 22 S.Ct. 18, 46 L.Ed. 78 (1901). The proper analysis of this issue thus consists of first determining if the state is the plaintiff under the state statutory scheme. Then the Court must decide whether Ex Parte Young is applicable.

The basis of the motion to remand is that Mr. Galanos is representing the state, who is the real plaintiff. Alabama law expressly confers upon the district attorney the duty of prosecuting civil actions on behalf of the state. Ala.Code §§ 6-5-1, 12-17-184(3) (1975). As already mentioned, the Act confirms this authority with regards to this statutory scheme. Ala. Code § 8-22-16(b) (1975). The Act does not, however, set up any agency, department or commission to oversee and enforce the statutory scheme. Therefore, many of the cases enunciating the standard for determining whether a state is a party are not directly applicable. Those cases speak in terms of analyzing certain factors bearing on the state’s role. See, e.g., State of Louisiana ex rel Guste v. Fedders Corp., 524 F.Supp. 552 (M.D.La.1981). When, as here, a state officer alone is involved, those factors may be relevant, but the Supreme Court has stated “that the nature of a suit as one against the state is to be determined by the essential nature and effect of the proceedings.” Ford Motor Co., supra, 323 U.S. at 464, 65 S.Ct. at 350. A number of cases have examined facts similar to those at bar, and determined that the state was the real party plaintiff. In Olsen v. Doerfler, 225 F.Supp. 540 (E.D.Mich.1963), a county prosecutor sued to enjoin the sale and distribution of allegedly obscene materials. In treating the contention that diversity existed the court noted that the prosecutor was a constitutional officer of the state who was enforcing Michigan law under express statutory authority. “In so doing, he was acting only in his official capacity and, consequently, the State of Michigan is the real party in interest.” Id. at 541. Olsen was based on Robertson v. Jordan River Lumber Co., 269 F. 606 (5th Cir.1921), in which the Fifth Circuit held that “[a] suit by an agent of the state as a nominal party in behalf of the state presents a controversy to which the state is a party, and cannot be removed.” Id. at 607. Similarly, in Eure v. NVF Co., 481 F.Supp. 639 (E.D.N.C.1979), the court held that a suit by the secretary of state in his official capacity is a suit by the state. Eure filed an action against the defendant corporation to enforce compliance with a North Carolina securities statute. In so doing he was acting “as the alter ego of the state” so diversity did not exist. Id. at 641. In Nuclear Eng’g Co. v. Scott, 660 F.2d 241 (7th Cir.1981), the court applied the Ford Motor test and found that the state of Illinois was the real plaintiff. In determining the essential nature and effect of the proceedings, the court simply looked at whether Scott, the state attorney general, was acting in his official capacity. Id. at 250. As he was, the state was the real plaintiff. Id. Finally, in State of New York ex rel. Abrams v. General Motors Corp., 547 F.Supp. 703 (S.D.N.Y.1982), the state attorney general sued to enjoin various fraudulent business practices allegedly performed by the defendant. In dealing with the contention that the state was not the real plaintiff, the court did not look merely to whether the attorney general was acting in his official capacity. The court also looked at factors similar to those used in resolving cases of agency action. The court found that the state had an interest in an honest marketplace and in protecting its citizens from fraud. This “quasi-sovereign” interest allows the state to act as parens patriae, and in such cases the state has a real interest in the controversy, justifying a decision that it is the real plaintiff. Id. at 705-06, 705 n. 5. The situation in the present case is identical. The state of Alabama has an interest in preventing unfair or dishonest competition, monopolies, and price wars. Ala.Code §§ 8-22-2 to 8-22-3 (1975). The Act protects those interests and thereby protects both independent retailers, Id. at § 8-22-2(3), and the general consuming public. This is obviously a “quasi-sovereign” interest in which the state is the real party in interest.

It is also contended, however, that the real party in interest is not the state, but certain independent dealers who made out affidavits in the state court. This contention is without merit. Whether other parties will benefit from this action does not affect the state’s valid interest in enforcing this statutory scheme. The defendant’s contention that this Court must accept as true the averments in the removal petition is erroneous. See, e.g., Horak v. Color Metal of Zurich, Switzerland, 285 F.Supp. 603 (D.N.J.1968) (court must make independent determination of removability).

Nor can it be argued that the County of Mobile is the real party because any funds recovered go into the county treasury. Ala.Code § 8-22-16(b) (1975). The county is an arm of the state, and although it is a citizen for purposes of diversity, Moor v. County of Alameda, 411 U.S. 693, 721, 93 S.Ct. 1785, 1801-02, 36 L.Ed.2d 596 (1973), the mere fact of possible recovery of a penalty does not vitiate the state’s interest as parens patriae.

Having accomplished the first step of the analysis, the Court must decide whether Ex Parte Young mandates removal. This theory is based on the contention that the district attorney is acting unconstitutionally. Ergo, argues the defendant, Mr. Gala-nos is not really acting in his official capacity, thus the state is not the real plaintiff. According to the defendant, Mr. Galanos is acting unconstitutionally because the statute authorizing his actions is unconstitutional.

Ex Parte Young, which has caused this problem, is a keystone of modern constitutional theory. See C. Wright, The Law of Federal Courts 292 (4th ed. 1983). In it, the Supreme Court held that the Eleventh Amendment does not bar a suit against a state officer who is acting unconstitutionally. If the act pursuant to which the officer is acting is unconstitutional, “the officer, in proceeding under such enactment, comes into conflict with the superior authority of [the] Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct.” Young, 209 U.S. at 159-60, 28 S.Ct. at 454. The Eleventh Amendment immunity does not then apply. This doctrine is pure fiction, C. Wright, supra, at 292, but is applied nonetheless. The defendant’s proposed extension, however, goes too far.

Star proffers two cases as supporting its interpretation: State of Ohio ex rel Seney v. Swift & Co., 270 F. 141 (6th Cir.1921) and Mouton v. Sinclair Oil and Gas Co., 410 F.2d 717 (5th Cir.1969). Seney involved a suit by a county prosecutor to enjoin violations of an Ohio anti-trust law. The court therein interpreted Young as presenting the issue of whether the state was a real party in interest. This interpretation is erroneous. Young dealt with the Eleventh Amendment, an issue that is distinct from the real party in interest issue that is central to the diversity jurisdiction problem. State of Louisiana ex rel. Guste v. Fedders Corp., 524 F.Supp. 552, 556 (M.D.La.1981). Seney has been severely criticized by subsequent decisions. See Nuclear Eng’g Co. v. Scott, 660 F.2d 241 (7th Cir.1981); Eure v. NVF Co., 481 F.Supp. 639 (E.D.N.C.1979); State Tax Com’n v. Union Carbide Corp., 386 F.Supp. 250 (D. Idaho 1974); Olsen v. Doerfler, 225 F.Supp. 540 (E.D.Mich.1963). According to Scott, supra, “[t]he fiction of Ex Parte Young, which merits that decision being considered a landmark in constitutional law, was created to further important interests wholly inapposite to Congress’ grant of federal jurisdiction pursuant to 28 U.S.C. § 1332.” 660 F.2d at 251 (citations and footnotes omitted). While admitting that this interpretation of Young results in an anomaly, that state officers are “state actors” for some purposes but not for others, the court pointed out that Young itself sanctioned such a paradoxical effect. Under Young state officials do not act pursuant to state authority for Eleventh Amendment purposes, even though they do so act for Fourteenth Amendment purposes. 660 F.2d at 251. This Court bears in mind the requirement that the removal statutes are to be construed narrowly, and against federal jurisdiction. Shamrock Oil Corp. v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214 (1941). See also C. Wright, supra, at 219. This is especially true when dealing with diversity cases. Mielke v. Allstate Ins. Co., 472 F.Supp. 851 (E.D.Mich.1979). Remembering this axiom, the Court declines to apply Young, but instead follows the better reasoned authority that counsels remand.

One obstacle to this decision must still be disposed of, however. This is the Mouton case cited above as supporting the defendant’s contentions. Actually, the defendant argues that it requires this Court to deny remand. Unfortunately for the defendant, Mouton is completely distinguishable.

To understand Mouton one must first understand its predecessor, Mississippi River Fuel Corp. v. Cocreham, 382 F.2d 929 (5th Cir.1967). In Cocreham the plaintiff corporation sued the Louisiana Collector of Revenue to obtain a refund of a severance tax imposed on oil and gas produced by the corporation on lands leased from the United States. Finding that Louisiana law expressly authorized such an action, the Fifth Circuit declined to decide whether the Eleventh Amendment barred the suit, and then ruled that the tax was unconstitutional. In Mouton the defendant corporation, Sinclair Oil and Gas Company, was sued by the same official, (although a different individual occupied the position), to collect the identical tax. Sinclair removed the case to federal court and obtained a determination that the Cocreham case controlled the validity of the assessed tax. On appeal the Fifth Circuit held that removal was proper on two grounds. First, since the issue presented had already been decided in Cocreham, the Collector was plainly acting without state authority, because the action had already been adjudged unconstitutional. Secondly, the district court had jurisdiction under 28 U.S.C. § 1331, as the attempt to collect a tax on minerals produced on federal property presented a federal question. Therefore, it is evident that this case is not authority for the contention that an allegation of unconstitutionality, standing alone, justifies removal. Besides the fact that the decision rests on a finding of federal question jurisdiction, the companion holding can be justified on the grounds that the case is truly a matter of collateral estoppel. The Collector had already been told that the tax was invalid, so any attempts to enforce it were obviously invalid. In contrast, this case deals with an uninterpreted statute, and facially valid action by an authorized state officer to enforce that statute. This Court holds that Mouton must be limited to the particular facts present therein. If removal is allowed in this case, then virtually all state regulatory schemes could be tested in federal court before a state court even had an opportunity to construe its own statute. Every time a state officer sought to enforce a new statute against an out of state defendant, the defendant could simply construct a non-frivolous argument attacking the law’s constitutionality and then remove the case. This Court is not inclined to allow such a disruption of state-federal relations. Ex Parte Young should not be extended to govern realms any wider than the already unwieldy territory over which it holds sway.

In summary, the Court holds that .the real party in interest in this case is the state of Alabama, represented by the district attorney. The Court further holds that Ex Parte Young does not mandate treating the district attorney as the individual plaintiff, thus allowing removal. Therefore, this Court is without jurisdiction, and this case must be remanded to the state court. It is therefore ORDERED pursuant to 28 U.S.C. § 1447(c) that this ease be, and it is, REMANDED to the Circuit Court of Mobile County, Alabama, removal having been improvidently granted.


source: Caselaw Access Project

author: DEVINE, Chief Judge.

license: Public Domain

text:
    Clarence ELBERT v. Michael J. CUNNINGHAM, Warden, New Hampshire State Prison.
    Civ. No. 85-245-D.
    United States District Court, D. New Hampshire.
    Aug. 9, 1985.

      James E. Duggan, Concord, N.H., for plaintiff.
    Tina Schneider, Office of Atty. Gen., Concord, N.H., for defendant.
   OPINION

DEVINE, Chief Judge.

Petitioner brings this application for writ of habeas corpus pursuant to 28 U.S.C. § 2254, claiming that his conviction on one count of attempted second-degree murder is constitutionally infirm. Petitioner is currently serving a sentence of 15 to 30 years for attempted murder, as well as a consecutive sentence of 10 years on the related conviction for felonious use of a firearm, not a subject of this petition. Petitioner presents the following grounds for relief:

1. Petitioner’s confession was erroneously admitted into evidence because the confession was procured in violation of his Fifth Amendment rights;

2. Petitioner’s confession was erroneously admitted into evidence because the confession was procured in violation of his Sixth Amendment rights;

3. Petitioner’s confession was erroneously admitted into evidence because it was procured in violation of his Fourteenth Amendment rights in that the confession was involuntary; and

4. There was insufficient evidence to prove that petitioner acted with premeditation and deliberation, and petitioner therefore was denied due process of law under the Fourteenth Amendment when the trial judge submitted the offense of attempted first-degree murder to the jury.

For the reasons stated below, the Court finds that petitioner’s application for writ of habeas corpus must be denied.

1. Fifth, Sixth, and Fourteenth Amendment Confession Claims

Petitioner first argues that his confession was procured in violation of his Fifth and Sixth Amendment rights because after petitioner had invoked his right to counsel the New Hampshire police initiated a conversation concerning New Hampshire charges against petitioner. However, the Court finds that a review of relevant trial and suppression hearing testimony supports the conclusions of the trial judge and the New Hampshire Supreme Court that it was petitioner who initiated the conversation concerning his New Hampshire offenses and voluntarily waived his previously invoked Fifth and Sixth Amendment rights.

On November 13, 1981, the State of New Hampshire filed complaints in the Nashua District Court charging petitioner with attempted first-degree murder, possession of a firearm by a felon, and the felonious use of a firearm, causing warrants to be issued for petitioner’s arrest. The FBI later obtained warrants for petitioner’s arrest as a fugitive from justice. Petitioner was later arrested in New York and detained until December 31, 1981, when he waived extradition and submitted to the custody of Captain Robert Barry and Detective Donald Hamel of the Nashua, New Hampshire, Police Department. At the New York judicial hearing in which plaintiff waived extradition, plaintiff’s counsel requested that the court instruct these Nashua officers to refrain from questioning petitioner until he had returned to New Hampshire and consulted his attorney there. This request was refused on the ground that the judge had no jurisdiction outside the state boundaries.

Captain Barry, Detective Hamel, and petitioner traveled by automobile to New Hampshire. Any conversation between the police and officers and defendant while in New York City concerned finding the proper travel routes. M.S. Tr. 41, 55. After leaving New York City, the three men engaged in “general conversation”, during which discussions petitioner inquired as to what specific charges were pending against him in New Hampshire and what sentence those charges might bring. Captain Barry described the conversation as follows:

Talking about when we were free of Riker’s and back on track, then the conversation was general conversation, Clarence wanted to know specifically what he was charged with. He wanted to know what the time was that he could do. We talked in general. We talked about the incident in New Hampshire. We would go off to things that Clarence had been involved with in other states or in the Mid-West or what-have-you. It was not specific, but it would be brought back to what happened in New Hampshire and would be brought back there by Clarence.

M.S. Tr. 55-56 (emphasis added). The three men then stopped to eat at a highway restaurant on Connecticut. Captain Barry read petitioner his Miranda rights after returning to the vehicle to resume the drive to New Hampshire. Petitioner responded that he understood the rights, that he had no problems talking to the police officers about the New Hampshire incidents without an attorney present. Trial Tr. 223-24. Petitioner subsequently made incriminating statements which were later admitted at trial. At some point in the conversation, after petitioner had made these incriminating statements, “towards the tail end of our conversations”, petitioner said, “Pd like to talk to my lawyer when I get back, and then maybe we’ll sit down and we’ll talk.” M.S. Tr. 57-58.

In evaluating petitioner’s Fifth Amendment claims, the Court begins with the cardinal rule that the Fifth Amendment requires the exclusion of any statement made by an accused person during custodial interrogation unless he has been advised of his right to remain silent and to have an attorney present during questioning and the accused has voluntarily waived those rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); United States v. Porter, 764 F.2d 1, 6-7 (1st Cir.1985). Once an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established except by showing that counsel had been provided to him or that the accused himself initiated further communication, exchanges, or conversations with the police. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1884-85, 68 L.Ed.2d 378 (1981). A valid waiver cannot be established by showing only that the accused responded to further police-initiated custodial interrogation, even if the accused also has been advised of his rights. Id. at 484, 101 S.Ct. at 1884. In this case, the Court assumes that petitioner effectively invoked his Fifth Amendment right to counsel through his New York counsel, who requested, in the presence of the New Hampshire officers, that no further interrogation take place until after petitioner had consulted with his New Hampshire counsel. The critical issue to be determined, therefore, is: Who initiated the conversation concerning petitioner’s pending New Hampshire charges?

The fact pattern of the instant case is strikingly similar to that of Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983), wherein the United States Supreme Court ruled that an accused person had initiated a conversation with police, thereby effectively waiving his previously-invoked Fifth Amendment right to counsel during custodial interrogation. In Oregon v. Bradshaw, id., an accused person had been read his Miranda rights and had expressly invoked his right to counsel, but just before or during an automobile transfer to a county jail, the accused inquired of a police officer, “Well, what is going to happen to me now?” The police officer responded by saying that the accused did not have to talk with the officer and that any conversation would have to be at petitioner’s own free will. The accused replied that he understood, and a conversation ensued in which the accused agreed to the police officer’s suggestion that the accused take a polygraph examination. Subsequent to the polygraph examination, plaintiff made incriminating statements. The Court held that the accused had initiated a conversation and dialogue, as his inquiry was not a routine or necessary inquiry arising out of the custodial relationship (i.e., request for water), but rather evinced a willingness on his part to open up a “generalized discussion” relating directly or indirectly to the investigation. Id. at 1045-46, 103 S.Ct. at 2835.

In this case, the testimony supports a finding that it was petitioner who initiated a dialogue with the New Hampshire officers relating to the investigation, when he inquired about the nature of the New Hampshire charges and the potential sentences connected with those charges. Once petitioner had initiated this dialogue, the door was open for further custodial interrogation without counsel, and the New Hampshire officers, after offering petitioner his Miranda rights, properly stepped through that door. The fact that petitioner, toward the end of the conversation and after incriminating statements had been made, spoke of further conversations with the police after consultation with his attorney, does not alter the effectiveness of his earlier waiver. In fact, petitioner’s statement concerning further police discussions after legal consultation may fairly be interpreted as going to petitioner’s actual shooting of the victim, rather than his theft and subsequent disposal of the weapon, the subjects of his incriminating statements.

The second prong of the Edwards test is whether the accused, having initiated further communications on the subject matter of the investigation, has knowingly and intelligently waived his right to counsel. Edwards v. Arizona, supra, 451 U.S. at 483, 486 n. 9, 101 S.Ct. at 1884, 1885 n. 9; see also Oregon v. Bradshaw, supra, 462 U.S. at 1044-45, 103 S.Ct. at 2834 (inquiries as to initiation of conversation and as to waiver of previously asserted right to counsel are separate). This second determination depends “upon the particular facts and circumstances surrounding [the] case, including the background, experience, and conduct of the accused.” Oregon v. Bradshaw, supra, 462 U.S. at 1046, 103 S.Ct. at 2835, quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). The trial court found that defendant had voluntarily, understanding^, and knowingly effected a waiver of his Miranda rights given the circumstances surrounding his statements, including petitioner’s initiation of the conversation concerning the New Hampshire charges, petitioner’s statement that he had “no problem” talking with police following Captain Barry’s renewal of the Miranda warnings, and the fact that petitioner was a “street-wise” individual. M.S. Tr. 103-94. The Court finds nothing in the record to dispute the trial court’s conclusions, “based as they are upon the trial court’s firsthand observation of the witnesses to the events involved.” Oregon v. Bradshaw, supra, 462 U.S. at 1046-47, 103 S.Ct. at 2835.

Petitioner also argues that his Fourteenth Amendment rights were violated because the police officers offered false promises of concurrent sentences to persuade petitioner to make a confession, thereby rendering petitioner’s statements involuntary. However, the Court finds that the trial court’s findings on this issue are supported by a comprehensive reading of the record, and should not be disturbed. The evidence supports the trial court’s findings that any discussion of concurrent sentences occurred after petitioner’s initiation of the investigation discussion and after petitioner voluntarily waived his right to counsel, but that, in any event, the police officers’ discussion of the potential benefits of voluntary statements did not rise to the level of a quid pro quo promise of leniency in return for confession. M.S. Tr. 104-05. Again the trial court properly took into account petitioner’s history of contact with the police and the criminal justice system, determining that petitioner would not have interpreted these police statements as a guarantee of leniency. M.S. Tr. 105. See id. at 1046, 103 S.Ct. at 2835.

Therefore, the Court concludes that petitioner’s custodial statements were not obtained in violation of his Fifth, Sixth, or Fourteenth Amendment rights. There being no constitutional violation, the trial court properly admitted petitioner’s statements into evidence. Petitioner’s application for writ of habeas corpus is therefore denied as to the first three requested grounds for relief.

2. Sufficiency of the Evidence

Petitioner’s fourth ground for relief argues that there was insufficient evidence to prove that petitioner acted with premeditation and deliberation and therefore submission of the first-degree murder charge to the jury tainted the ultimate verdict of guilty on the lesser-included manslaughter offense, thereby violating petitioner’s Fourteenth Amendment rights. Petitioner claims that the trial testimony does not support the findings of the New Hampshire Supreme Court, which held that the issue was properly submitted to the jury since the jury could have found beyond a reasonable doubt that defendant had time for “some reflection and consideration upon the ... choice to kill or not to kill, and ... the formation of a definite purpose to kill.” Id,., 125 N.H. at 11-12, 480 A.2d 854, quoting State v. Greenleaf, 71 N.H. 606, 614, 54 A. 38 (1902). After review of the trial testimony, this Court concludes that submission of the first-degree murder charge to the jury did not violate petitioner’s constitutional rights.

Like the New Hampshire Supreme Court, this Court does not reach the issue of the “tainting influence” of the first-degree murder charge, as the Court finds that charge was properly submitted to the jury for consideration. The standard for proper submission of a particular charge to the jury must logically be found in the standard controlling a potential conviction on that charge: Viewing the evidence in the light most favorable to the prosecution, could any rational trier of fact have found the essential elements of the crime beyond a reasonable doubt? See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Elbert, supra, 125 N.H. at 12, 480 A.2d 854.

Plaintiff claims that the trial testimony did not support a finding of the premeditation or deliberation element required for an attempted first-degree murder conviction. New Hampshire law provides that a person shall be guilty of first-degree murder, or in this case attempted first-degree murder, where that person acts purposely to cause the death of another. RSA 630:l-a 1(a). “Purposely” is defined to mean that “the actor’s conscious object is the death of another, and that his act or acts in furtherance of that object were deliberate and premeditated.” RSA 630:1 I. The New Hampshire Supreme Court has described the required state of mind as follows:

‘There must be not only an intention to kill, but there must also be a deliberate and premeditated design to kill. And when the timé is sufficient for this, it matters not how brief it is. The human mind acts with celerity which it is sometimes impossible to measure; and whether a deliberate and premeditated design to kill was formed, must be determined from all the circumstances of the case.’ ‘The questions for the jury are: Had the slayer space and opportunity for reflection? Did he think over what he was about to do? Did he coolly form a settled purpose? Was his mind sedately and considerately made up to take life? If these questions be answered in the affirmative, the verdict must be murder in the first degree.’

New Hampshire v. Greenleaf, supra, 71 N.H. at 613-14, 54 A. 38 (citations omitted). See also State v. Elbert, supra, 125 N.H. at 11-12, 480 A.2d 854.

The evidence offered in the instant case could have supported a finding of premeditation beyond a reasonable doubt by a rational trier of fact. It could have been found that defendant had sufficient time for reflection and consideration, given that the victim testified that she first heard rustling, then took a few steps, and then was threatened, at which time she looked briefly at her attacker and then began to run before she was shot. Trial Tr. 96-98. Thus, the petitioner had “sufficient space and opportunity for reflection”. Furthermore, the facts that petitioner used a gun and shot the victim in the head from behind could warrant an inference on the part of the jury that petitioner deliberately attempted to inflict a lethal wound on the victim. See State v. Greenleaf, supra, 71 N.H. at 614-15, 54 A. 38. Therefore, the Court finds that there was sufficient evidence to submit the first-degree murder charge to the jury for consideration, and therefore petitioner’s habeas corpus application must be denied on this requested ground for relief.

In sum, the Court finds that petitioner does not succeed on any of the four stated grounds for relief, and, accordingly, his petition for writ of habeas corpus must be denied.

SO ORDERED.

      . Petitioner is currently appealing his sentence of 10 years on the felonious use of a firearm charge following resentencing by the Superior Court as required by State v. Elbert, 125 N.H. 1, 16, 480 A.2d 854 (1984). Plaintiff has expressly informed this Court that he wishes to proceed with his current writ petition in spite of the risk that any successive petition concerning the felonious use of a firearm sentence might be barred by Rule 9(b), Rules Governing Habeas Corpus Cases Under Section 2254.

      . Transcript of July 12, 1982, hearing on Motion to Suppress.

      . While petitioner does not expressly argue this “tainting” theory in this habeas petition, the Court assumes that his Fourteenth Amendment jury charge arguments parallel those presented to the New Hampshire Supreme Court in State v. Elbert, supra, 105 N.H. at 11, 480 A.2d 854.

      . N.H. RSA 629:1 provides that a person shall be guilty of an "attempt to commit a crime if, with a purpose that a crime be committed, he does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step toward the commission of the crime.”


author: ALSOP, Chief Judge.

text:
    Andrew B. JOHNSON, individually and as Personal Representative of the Estate of Andrew Walfrid Johnson, and Joan M.M. Kuder, Plaintiffs, v. UNITED STATES of America; Robert A. Mitchell, W.W. Grainger, Inc., Northland Electric Supply Company, David Gellman, d/b/a Pearsons, County of Hennepin, State of Minnesota, Twin City Storm and Sash Company, Inc., Defendants.
    No. 3-85 Civ. 148.
    United States District Court, D. Minnesota, Third Division.
    Aug. 9, 1985.
    James B. Dickinson, Wayzata, Minn., for plaintiffs.
    Beth Sabbeth, Dept. of Justice, Washington, D.C., for defendant U.S.
   ORDER

ALSOP, Chief Judge.

This matter comes before the court upon (1) plaintiffs’ motions for summary judgment against defendants United States of America and Twin City Storm and Sash Company, Inc.; (2) plaintiffs’ motions for default judgment against defendants Robert A. Mitchell, Northland Electric Supply Co., David Gellman d/b/a Pearsons, and the County of Hennepin; and (3) defendant United States of America cross motion for summary judgment against plaintiffs. Plaintiffs filed this quiet title action to extinguish defendants’ liens against the subject real property.

Among the motions now before the court, the only contested matters are the cross motions for summary judgment between the plaintiffs and the United States of America. The parties stipulated at oral argument that the United States of America be substituted as a party defendant in place of the District Director of Internal Revenue Service. The issue raised by the cross motions is whether a statutory cancellation of a contract for deed under Minnesota law, of which the United States had not received notice, extinguished federal tax liens on the subject real property.

Based upon the file, records and proceedings herein, including the submissions of counsel relevant to these motions, the court makes the following:

FINDINGS OF UNDISPUTED FACT

1. There is no genuine issue as to any material fact underlying this action.

2. Plaintiffs are the record owners of a tract of real property located within the County of Hennepin, State of Minnesota, legally described as follows:

Lot 4, Block 6, Smith and Howe’s First Addition to Minneapolis.
Subject to restrictions, reservations and easements of record, if any.

(The subject real property.)

3. On June 11, 1981, plaintiffs sold the subject real property to defendant Robert A. Mitchell (Mitchell) pursuant to a contract for deed which was recorded on June 25, 1981 in the Hennepin County Recorder’s Office as Document No. 4652561.

4. Subsequent to this sale, Mitchell incurred obligations culminating in the attachment of certain liens to the subject real property. These liens include the following:

(a) Judgment Lien of Northland Electric Supply Company docketed July 23, 1982 in Hennepin County ($1,167.72).
(b) Judgment Lien of County of Hennepin docketed November 1, 1982 ($3,312.50).
(c) Judgment Lien of David Gellman d/b/a Pearsons docketed October 11, 1983 ($658.45).
(d) Notice of Federal Tax Lien dated May 2, 1983, recorded May 6, 1983 for unpaid taxes of class 941 ($2,041.76).
(e) Notice of Federal Tax Lien' dated May 16, 1983, recorded May 23, 1983 for unpaid taxes of class 941 ($2,431.90).
(f) Notice of Federal Tax Lien dated July 19, 1983, recorded July 29, 1983 for unpaid taxes of class 941 ($1,619.97).
(g) Notice of Federal Tax Lien dated October 14, 1983, recorded October 19, 1983 for unpaid taxes of class 941 ($1,734.94).
(h) Mechanic’s Lien for materials recorded June 7, 1984 by Twin City Storm and Sash Company, Inc. ($550.00).

5. In addition to these obligations, Mitchell failed to pay real estate taxes for the years 1982, 1983 and 1984. He also damaged and failed to insure the subject real property. Mitchell ceased making payment to plaintiffs under the contract in July 1983.

6. Plaintiffs commenced a statutory cancellation of contract for deed proceeding on October 29, 1983 by personally serving Mitchell with a cancellation notice pursuant to Minnesota law. Plaintiffs extinguished Mitchell’s interest in the subject real property when Mitchell failed to cure his defaults within the prescribed sixty (60) day time period. On January 12, 1984, plaintiffs recorded their affidavit of noncompliance with the Hennepin County Recorder.

7. No defendant in this action ever gave notice to plaintiffs of any claimed interest at any time. Further, prior to an examination of title, plaintiffs had no knowledge of any claimed interest but their own.

8. At no time did plaintiffs serve defendants with notice of the cancellation of the contract for deed on the subject real property.

9. After discovering defendants’ liens, plaintiffs sought the voluntary discharge of the federal tax liens through an administrative proceeding. On October 2, 1984, the defendant United States of America (United States) denied plaintiffs’ petition.

10. Likewise, plaintiffs requested defendant Twin City Storm and Sash Company, Inc. (Twin City Storm and Sash) to voluntarily discharge its mechanic’s lien recorded on June 7, 1984. That request also went unheeded.

11. All named defendants were duly served with a summons and complaint. Plaintiffs personally served defendants Northland Electric Supply Company (Northland) and the County of Hennepin (Hennepin). These defendants have failed to answer plaintiffs’ summons and complaint and are currently in default.

12. Plaintiffs published statutory notice of their summons and complaint as to defendants Mitchell and David Gellman d/b/a Pearsons (Gellman) since those defendants could not be located. Defendant Twin City Storm and Sash was served with plaintiffs’ summons and complaint. Twin City Storm and Sash, however, served an answer and counterclaim upon plaintiffs.

13. All defendants except the State of Minnesota and W.W. Grainger, Inc. were served with plaintiffs’ motions for default judgment and summary judgment. All affidavits of service of process and affidavits of publication were filed with the court.

Upon the foregoing undisputed facts, the court makes the following:

CONCLUSIONS OF LAW

1. Because defendants Mitchell, Northland, Gellman, and Hennepin have failed to answer plaintiffs’ complaint, plaintiffs’ motion for default judgment against those defendants will be granted. Accordingly, any interest of defendants Mitchell, Northland, Gellman, and Hennepin in the subject real property will be forever forfeited, cancelled, and extinguished.

2. Plaintiffs’ cancellation of the contract for deed extinguished Twin City Storm and Sash’s mechanic’s lien on the subject real estate. Accordingly, plaintiffs’ motion for summary judgment against Twin City Storm and Sash will be granted and any interest of defendant Twin City Storm and Sash in the subject real property will be forever forfeited, cancelled, and extinguished.

3. The United States argues that plaintiffs’ statutory cancellation of the contract for deed on the subject real property was a “nonjudicial sale” of which the United States had not received notice. Therefore, relying upon 26 U.S.C. § 7425(b) (1982) and 26 C.F.R. § 301.7425-2(a) (1985), the United States contends that plaintiffs’ cancellation of the contract for deed did not extinguish the federal tax liens. This court rejects the United States’ position and concludes that plaintiffs’ cancellation of the contract for deed in the state of Minnesota is not a sale for purposes of § 7425(b). In support of this conclusion, the court adopts the reasoning of the Ninth Circuit in Brookbank, Inc. v. Hubbard, 712 F.2d 399 (9th Cir.1983). See also Runkel v. United States, 527 F.2d 914 (9th Cir.1975); Hedlund v. Brellenthin, 520 F.Supp. 81 (W.D. Wash.1981). The court will therefore grant plaintiffs’ motion for summary judgment against the United States and will deny the United States’ motion for summary judgment against plaintiffs. Accordingly, any interest of defendant the United States, or any person claiming by, through, or under the United States, in the subject real property will be forever forfeited, can-celled, and extinguished.

Upon the foregoing,

IT IS ORDERED That the United States of America be substituted as a party defendant in place of the District Director of Internal Revenue Service.

IT IS FURTHER ORDERED That plaintiffs’ motions for default judgment against defendants Robert A. Mitchell, Northland Electric Supply Co., David Gellman d/b/a Pearsons, and the County of Hennepin be and the same hereby is in all things granted.

IT IS FURTHER ORDERED That plaintiffs’ motion for summary judgment against defendant Twin City Storm and Sash Co., Inc. be and the same hereby is in all things granted.

IT IS FURTHER ORDERED That plaintiffs’ motion for summary judgment against defendant United States of America be and the same hereby is in all things granted.

IT IS FURTHER ORDERED That the cross motion of defendant United States of America for summary judgment against plaintiffs be and the same hereby is in all things denied.

IT IS FINALLY ORDERED That the clerk enter judgment as follows:

IT IS ORDERED, ADJUDGED AND DECREED That any interest, including liens, of defendants United States of America, Robert A. Mitchell, Northland Electric Co., David Gellman d/b/a Pear-sons, County of Hennepin, and Twin City Storm and Sash Co., Inc., in the subject real estate be and the same hereby are in all things forever forfeited, cancelled, and extinguished.


author: ARCENEAUX, District Judge.

text:
    Lori Ann PAULL v. Christy ZOLFOGHARY, et al.
    Civ. A. No. 82-3742.
    United States District Court, E.D. Louisiana.
    Aug. 9, 1985.
    Darleen M. Jacobs, New Orleans, La., for plaintiff Pauli.
    Esmond Phelps and Dodge Hobson, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, La., for Employers Cas. Co., Dr. Chris Zolfoghary and Christy Zolfoghary.
    Bernard, Cassisa, Saporito & Elliott, Stephen N. Elliott, Metairie, La., for General Motors Corp.
    Simon, Peragine, Smith & Redfearn, Daniel J. Caruso, T.A., and Susan F. Clade, New Orleans, La., for Arnica Mut. Ins. Co.
   OPINION

ARCENEAUX, District Judge.

This matter comes before the Court on motion of plaintiff Lori Ann Pauli for summary judgment. The issue presented is whether the Louisiana statute which limits the “stacking” of uninsured/underinsured motorists coverage, is applicable to the facts and circumstances of this case.

The other issues raised by the parties in motions and memoranda have been resolved, as reflected in agreements announced by counsel at oral argument.

Facts

The following facts are not in dispute.

Plaintiff, a student enrolled at Southern Methodist University in Dallas, Texas and a resident of the State of Connecticut, was injured in a one-car accident which occurred in New Orleans, Louisiana while she was visiting that city during the 1982 Mardi Gras season. She was a guest passenger in a Texas-licensed car which was being driven by a fellow student, a resident of the State of Texas; the car was owned by the fellow student’s sister, Elizabeth Zolfoghary, a Louisiana resident and Texas domiciliary.

Plaintiff’s present claims are against the following defendants: Christy Zolfoghary, (who is sometimes in the pleadings referred to as “Miriam,” although “Christy” and “Miriam” are the same person); Elizabeth Zolfoghary (the owner of the car); Employer’s Casualty Insurance Company (the liability insurer of the car); and Arnica Mutual Insurance Company (the uninsured/underinsured insurer of the plaintiff pursuant to a policy issued in Connecticut). The liability insurer of the automobile has paid the limits of its policy of liability insurance to the plaintiff, who now seeks damages allegedly exceeding that amount under the terms of Arnica’s automobile policy, and separate endorsements (the policies). The Arnica policies afford underinsured/uninsured coverage to plaintiff as a named insured thereunder. Plaintiff seeks to “stack” the policy limits.

There is no dispute that additional coverage amounting to $120,000 could be “stacked” under the terms of the policies and Connecticut law, and would be available to plaintiff were it not for the terms of La.Rev.Stat.Ann. § 22:1406(D) (West 1985), which limit the amount of underinsured coverage to $40,000.

I.

The parties have agreed that, as to the substantive liability claim, the law of Louisiana would apply. Defendant Arnica, asserts that Louisiana law should apply to all aspects of the case and that, therefore, the Louisiana coverage limitation statute applies. Arnica further claims that the “interest analysis” doctrine adopted by the Louisiana Supreme Court in Jagers v. Royal Indemnity Co., 276 So.2d 309 (La.1973), when applied to the facts of this ease, also compels that conclusion.

This Court disagrees, and finds that the issue of “stacking” the coverage afforded by the Arnica policies can and should be determined separately from the other issues in the case.

It would be simple, indeed, to say that the interest analysis test announced in Jagers requires the application of Louisiana law to all issues presented, including the issue of “stacking” of underinsured motorist coverages, and thus relegate the plaintiff to the additional $40,000 in coverage pursuant to the provisions of Louisiana law. As noted by Judge Brown in Brinkley and West, Inc. v. Foremost Insurance Co., 499 F.2d 928 (5th Cir.1974), while that approach “is beguiling,” Louisiana “... in its deliberate break with the past has accepted the burden which flows from abandoning the easy way out____” Brinkley and West, Inc., at 935.

The Court, therefore, must plow the hard furrow.

The doctrine of “[djepecage, ... the application of rules of different states to determine different issues in a case has been well accepted in conflict analysis,” Ardoyno v. Kyzar, 426 F.Supp. 78, 84 (E.D.La.1976). Thus the Court is not obliged to apply Louisiana law to the whole case and elects to deal separately with the issue as to whether the Louisiana statute limits the coverage which would otherwise be available to the plaintiff under the terms of her Connecticut policies, and the law of that state. Conn.Gen.Stat.Ann. § 38-175c (1985), Nationwide Insurance Co. v. Gode, 187 Conn. 386, 446 A.2d 1059 (1982).

II.

The “separated issue” of “stacking” presents a real, as opposed to a false, conflict between the laws of Louisiana and Connecticut. The parties have so agreed and the Court concurs. Louisiana’s interest in seeing that its laws are applied to this issue are more than simply concerns that its rules of trial administration be followed. Presented are interests of the state reflecting a public policy contained in an act of its Legislature. Connecticut, acting from like motives and in a similar manner, has reached a contrary position. The conflict is real, not supurious.

Hence, the Court must apply the Jagers mandated analysis of the respective state interests which are relevant to the issue presented.

Louisiana’s interests in this issue, when compared with those of Connecticut, are, at best attenuated. It served as the situs of the accident which involved a vehicle owned by a Texas domiciliary, Elizabeth, but used by her in Louisiana while she attended Tulane University, in New Orleans. The driver, Christy Zolfoghary, was a resident of the State of Texas.

It seems clear that Louisiana’s purpose in enacting the uninsured/underinsured motorist statute is founded on a policy of valid state concern—to protect persons suffering injury in automobile accidents on its roadways against the possibility of their being unable to secure at least minimal compensation for personal injuries sustained; to protect them against the hazards of injury at the hands of persons otherwise impecunious, and without liability insurance, or under circumstances where that insurance is inadequate. This is the common thread in the fabric of both statutory and decisional law, loomed by the legislature, and tailored by the Supreme Court in Jagers, pere et fils. Thus, this fundamental concern is sufficient to warrant the application of Louisiana law mandating such coverages, where the laws or provisions of insurance policies issued in other states would require a different result.

But to say that this fundamental consideration should always be limited by the mechanical application of Louisiana’s limitation on the extent of coverage would be to deny the existence of any cognizable interest by another state in the well-being and welfare of its citizens. In analyzing the applicability of the Louisiana limitation, structured as it is to “prohibit stacking except under designated circumstances” Courville v. State Farm Mutual Automobile Insurance Co., 393 So.2d 703, 705 (La. 1981), the Court believes it probably reflects the Legislature’s concern with the cost of premiums on insurance policies paid by its citizens.

But where a policy has been issued in another state, affording greater coverage, for which premiums have been paid in that other state, the application of the limitation would amount to an unintended benefit to the companies which wrote the policies in the first place. Thus, while Louisiana’s fundamental policy determination, relative to the availability of uninsured/underinsured motorist coverage, requires the consideration and application of Louisiana’s laws in that regard, it is quite another matter in the case at hand to apply the Louisiana “stacking” limitation in such a way as to prohibit the availability of yet additional coverage.

Louisiana’s interest in requiring uninsured/underinsured coverages are met by the subject Connecticut policies.

But, as noted earlier, determining the applicability of Louisiana’s limitations on “stacking” implicates interests other than those of Louisiana, and requires the Court to determine the extent to which the interest of yet another state, in this instance Connecticut, should be measured, and limited, by Louisiana’s statutory policy. Connecticut’s interests are significant. The injured guest was a domiciliary of that state, insured under a policy of insurance issued in that state, covering a vehicle located and domiciled in Connecticut. The evidence is uncontradicted that she consistently returned to that state when not at school in Texas, and that she resided there with her parents.

Connecticut has a clearly valid and superior interest in measuring the extent to which its citizens, who may be victims of automobile-spawned wrongs, should be compensated, when weighed against Louisiana’s interests in limiting the recovery which those citizens might otherwise receive under policy provisions, written in Connecticut.

Of course, should Connecticut have determined otherwise, as was the case in Stickney v. Smith, 693 F.2d 563 (5th Cir. 1982), an equivalent result would not obtain, since, in such event, a collision between the two countervailing policies would require observance of Louisiana’s fundamental public policy considerations requiring uninsured/underinsured coverage in minimum amounts.

But this ease involves no such fundamental conflict; at issue here is not “if,” but “how much”—a dispute as to quantum, not the availability of a remedy. Certainly, Connecticut has a stronger interest in having its law applied to this controversy over extent of coverage than does Louisiana. (See Fensaci v. Travelers Insurance Co., 642 F.2d 986, 992 (5th Cir.1981)).

Because Connecticut's interests in this issue are clearly paramount to those of Louisiana, as to the issue presented, Connecticut law and the relevant provisions of the Arnica policies are to be applied.

The motion of plaintiff for summary judgment is GRANTED.

      . McKenzie, Louisiana Uninsured Motorist Coverage After Twenty Years, 43 La.L.Rev. 691 (1973) states:
      The prostacking decisions arose in an era when the mandated UM coverage limits were the minimal $5,000/$10,000 limits. Amendments to the statute in 1972, 1974, and 1977 greatly expanded the insured’s right to acquire UM protection. With this increased access to UM coverage, the legislature was persuaded to adopt ACT 623 of 1977, which is known as the "anti-stacking" provision.
      43 La.L.Rev. at 719.
      Concern with the premium burdens attendant to resultant availability of vastly increased limits of coverage afforded by “stacking" outweighed the public policy basis of the unlimited stacking rule, created (as it clearly was) to provide an augmented fund adequate to provide at least minimal recovery of actual damages, which so frequently had exceeded the initial “layer” of UM coverage. This would seem to be the genesis of the statutory limitation on "stacking.”


author: JOHN V. PARKER, Chief Judge.

text:
    LOUISIANA POWER & LIGHT COMPANY v. George J. ACKEL, John F. Schwegmann, Louis J. Lambert, Don L. Owen and Thomas E. Powell.
    Civ. A. No. 85-745-A.
    United States District Court, M.D. Louisiana.
    Aug. 12, 1985.

      Andrew P. Carter, J. Wayne Anderson, Gilbert L. Hamberg, Stefan Kazmierski, W. Glen Burns, Monroe & Lemann, A.P.C., New Orleans, La., for Louisiana Power & Light Co.
    Michael R. Fontham, Paul L. Zimmering, Stone, Pigman, Walther, Wittman & Hutchinson, New Orleans, La., for defendants.
    Marshall B. Brinkley, Louis S. Quinn, Baton Rouge, La., for La. Public Service Comm.
    R. Gordon Kean, amicus curiae, Kean, Miller, Hawthorne, D’Armond, McCowan & Jarman, Baton Rouge, La., for La. Energy Users.
    Richard M. Troy, Jr., amicus curiae, Asst. Atty. Gen., New Orleans, La., for State of La.
   JOHN V. PARKER, Chief Judge.

In this action a Louisiana electric utility company seeks injunctive relief against the five members of the Louisiana Public Service Commission. The Commission has declined to grant the company any increase in intrastate electric rates. The need for the increase arises from the action of the Federal Energy Regulatory Commission in establishing interstate wholesale rates which the company will be required to pay for electrical energy generated from a nuclear energy plant which has recently come on stream in Mississippi. The cost to plaintiff is approximately $12,000,000 per month and plaintiff claims that it will shortly become insolvent unless this court by injunctive order requires the members of the Public Service Commission to allow the company to “pass through” the wholesale increase which it must pay by increasing its intrastate retail rates to customers dollar for dollar.

This matter is before the court upon the motion of plaintiff, Louisiana Power & Light Company (LP&L), for a preliminary injunction and upon the motion of the defendants to dismiss for lack of subject matter jurisdiction. Defendants have also filed a motion to strike certain allegations of the complaint as “impertinent, scandalous and knowingly false.” An evidentiary hearing was held upon the motion for preliminary injunction.

I hold that the Johnson Act, 28 U.S.C. § 1342, deprives this court of jurisdiction to hear this case. Accordingly, it will be dismissed for want of subject matter jurisdiction and no findings will be made relative to the motion for preliminary injunction. More detailed reasons may be handed down later. 28 U.S.C. § 1342 provides:

The district courts shall not enjoin, suspend or restrain the operation of, or compliance with, any order affecting rates chargeable by a public utility and made by a State administrative agency or a rate-making body of a State political subdivision, where:
(1) Jurisdiction is based solely on diversity of citizenship or repugnance of the order to the Federal Constitution; and,
(2) The order does not interfere with interstate commerce; and,
(3) The order has been made after reasonable notice and hearing; and,
(4) A plain, speedy and efficient remedy may be had in the courts of such State.

It is clear that LP&L does call upon this court to restrain the operation of or compliance with the intrastate rates which have been fixed by the Louisiana Public Service Commission, a state rate-making body. It is also clear, despite LP&L’s attempts to shift the focus of its claims, that jurisdiction here is based solely on “repugnance of the order to the Federal Constitution.”

LP&L’s deprivation of property claims are all based upon the Constitution. It is well established that the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, adds no independent ground for federal district court jurisdiction, Shelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194 (1950), and it is well established that a utility may not make an “end run” around the Johnson Act by asserting a Civil Rights claim under 42 U.S.C. § 1983. South Central Bell Telephone Co. v. Public Service Com’n of Kentucky, 420 F.Supp. 376 (E.D.Ky.1976); Kalinshy v. Long Island Lighting Co., 484 F.Supp. 176 (E.D.N.Y.1980); Tennyson v. Gas Service Co., 367 F.Supp. 102 (D.Kansas 1973), affirmed 506 F.2d 1135 (10th Cir.1974); DeKalb County v. Southern Bell Telephone and Telegraph Co., 358 F.Supp. 498 (N.D. Georgia 1972); and Zucher v. Bell Telephone Company of Pennsylvania, 373 F.Supp. 748 (E.D.Penn.1974), aff’d 510 F.2d 971 (3rd Cir.1975), cert. denied 422 U.S. 1027, 95 S.Ct. 2621, 45 L.Ed.2d 684 (1975).

Jurisdiction under the Federal Power Act, 16 U.S.C. § 825p is lacking because this is not an action “brought to enforce any liability or duty created by, or to enjoin any violation” of any order of the Federal Energy Regulatory Commission. FERC Opinion No. 234 simply establishes interstate wholesale rates that LP&L must pay for power generated at the Grand Gulf Nuclear Electric Station in Port Gibson, Mississippi, and sold in interstate commerce to the members of the Middle South Utilities group. While those rates constitute real expenses to LP&L which must be accepted by the state authorities as actual operating expenses, there is nothing in the FERC Opinion that orders any state regulatory commission to “pass through” these expenses to retail customers by formula rates, as LP&L demands here. The Louisiana Public Service Commission is certainly required to consider the wholesale rates to be paid by LP&L—along with all of its other operating expenses—in determining intrastate rates, but FERC Opinion No. 234 does not command that any specific intrastate rate be increased. Hence, the Louisiana Public Service Commission is not in violation of the order and there is no jurisdiction under 16 U.S.C. § 825p.

As LP&L itself alleges, the action of the Louisiana Public Service Commission came after several public hearings on LP&L’s rate application so the plaintiff may not complain of inadequate notice or hearing. The provisions of Article 4, § 21 E of the Louisiana Constitution of 1974 authorize appeals from actions of the Louisiana Public Service Commission to the state courts and LSA-R.S. 45:1192 provides for preferential hearing and speedy determination of such claims, including interim injunctive relief where appropriate. See e.g. South Central Bell Telephone Co. v. Louisiana Public Service Commission, 340 So.2d 1300 (La.1976).

The question of interference with interstate commerce is much more difficult. Where a state agency deliberately attempts to regulate the interstate sale of natural gas, Public Utilities Commission of Ohio v. United Fuel Co., 317 U.S. 456, 63 S.Ct. 369, 87 L.Ed. 396 (1943), or seeks to regulate the wholesale sale of electrical energy in interstate commerce, Federal Power Commission v. Southern California Edison Co., 376 U.S. 205, 84 S.Ct. 644, 11 L.Ed.2d 638 (1964), or prohibits the export to sister states of state generated hydroelectric power, New England Power Co. v. New Hampshire, 455 U.S. 331, 102 S.Ct. 1096, 71 L.Ed.2d 188 (1982), or directs a utility company to decline to pay federally mandated wholesale interstate costs pending state approval of the federal order, Tri-State Generating and Transmission Association v. Public Service Commission of Wyoming, 412 F.2d 115 (10th Cir.1969), cert denied 397 U.S. 1043, 90 S.Ct. 1348, 25 L.Ed.2d 654, then it is plain that the state agency is interfering with interstate commerce.

Here, however, the state agency has not directed LP&L to refuse to pay the wholesale rates fixed by FERC Opinion No. 234 or made any attempt to subject the federal matter to state jurisdiction. LP&L claims that the action of the Louisiana Public Service Commission in denying it any rate increase at all will push the company into insolvency and thus thwart the federal plan for allocation of costs from the Grand Gulf plant. Certainly all state rate-making action does have some, influence upon or effect upon interstate commerce but these actions do not necessarily interfere with interstate commerce and the magnitude of the harm threatened by inadequate intrastate rates does not provide a cause for ignoring the clear mandate of the Johnson Act. Kansas-Nebraska Natural Gas Co., Inc. v. City of St. Edward, Nebraska, 234 F.2d 436 (8th Cir.1956), “Conceding, without deciding, that the rates are confiscatory and, hence, deprived plaintiff of its property without due process of law, it does not necessarily follow that Congress has conferred jurisdiction on the Federal Courts to determine these issues,” Id. at 440; Kalinsky v. Long Island Lighting Co., 484 F.Supp. 176 (E.D.N.Y.1980); South Central Bell Telephone Co. v. Public Service Commission of Kentucky, 420 F.Supp. 376 (E.D.Ky.1976). See also Gulf Water Benefaction Company v. Public Utility Commission of Texas, 674 F.2d 462 (5th Cir. 1982).

At trial counsel for plaintiff conceded that no member of the Public Service Commission has actually violated any provision of FERC Opinion No. 234. Rather, counsel says the defendants have failed to implement the federal order by not allowing LP&L to recover its increased expenses by means of a rate increase—thus constituting an interference with interstate commerce.

In support of its argument that the action (or nonaction) of the defendants constitutes an interference with interstate commerce, LP&L relies heavily upon a decision of the Southern District of West Virginia, Civil Action No. 2:85-0098, “Appalachian Power Co., et al v. Public Service Commission of West Virginia, et al, ” now pending on the docket of that court. There FERC had approved as a rate schedule a transmission agreement between Appalachian and its affiliated companies which resulted in an increase in its expenses for wholesale interstate energy. The state regulatory agency, after first concluding that it lacked authority to approve or disapprove the agreement already approved by FERC authorized an increase in intrastate rates, but later reversed itself and issued an order which directed that Appalachian submit the agreement for state agency approval and set aside the rate increase previously approved until and unless Appalachian submitted the agreement for approval. The district court issued a preliminary injunction which restrained the state agency from enforcing its order insofar as it “(1) requires plaintiff ... to submit to the said Commission for its approval ... the Multi-State Transmission Agreement ...; and (2) denies [plaintiff] recovery subject to refund of ... costs to be incurred under that Agreement ... until after the said Commission has approved said Agreement and has found the costs resulting therefrom to be reasonable for inclusion in Appalachian Power Company’s rates.” The Fourth Circuit in an unpublished per curiam affirmed the grant of the preliminary injunction. Assuming that unpublished opinions have some precedential value, it is apparent that the state agency was attempting to exercise jurisdiction over wholesale interstate rates (the transmission agreement) already approved by FERC—a clear interference with interstate commerce. That is not the situation before this court.

That LP&L is in serious financial difficulty is beyond dispute and the action of the Louisiana Public Service Commission in denying it any rate increase probably amounts to an unconstitutional deprivation of property. The Johnson Act, however, specifically withdraws from this court’s jurisdiction any injunction predicated on such constitutional claims. Accordingly, this court lacks jurisdiction to take any action on those claims.

LP&L also asserts a separate money damage claim against the five members of the Public Service Commission in their individual capacities. It is clear that the action complained of taken by each member of the Public Service Commission was voting as a member of the commission, that is to say, in the discharge of his legislative duty as a rate-making official. Consequently, they enjoy absolute immunity from any such claim for money damages. Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979). Accordingly, that claim must also be dismissed.

For the foregoing reasons, the motion to dismiss for lack of subject matter jurisdiction and the motion to dismiss the money damage claim because of absolute immunity are hereby GRANTED and this action will be dismissed.

As noted earlier, LP&L is not without recourse; the state courts are open and a plain, speedy and efficient remedy for the alleged wrongs may be had there.


author: McLAUGHLIN, District Judge.

text:
    Melvin LINDSEY, Plaintiff, v. Raymond J. LOUGHLIN, Defendant.
    No. 82 CV 1964.
    United States District Court, E.D. New York.
    Aug. 13, 1985.

      Melvin Lindsey, pro se.
    Frederick A.O. Schwarz, Jr., New York City Corp. Counsel, New York City (Christopher C. Gette, New York City, of counsel), for defendant.
   ORDER

McLAUGHLIN, District Judge.

The attached Report and Recommendation of Hon. Shira A. Scheindlin, United States Magistrate, is hereby adopted as the Opinion of this Court. No objections were filed within the time permitted.

It is hereby ORDERED that defendant’s motion for summary judgment dismissing the Complaint is granted.

The Clerk shall make copies of this Order and shall serve them upon the parties.

SO ORDERED.

REPORT AND RECOMMENDATION

July 25, 1985

SHIRA A. SCHEINDLIN, United States Magistrate.

I. STATEMENT OF FACTS

Plaintiff, Melvin Lindsey, appearing pro se, has brought this 42 U.S.C. § 1983 action alleging a violation of his civil rights, based upon the following incident. On July 1, 1980 defendant Police Officer Raymond Loughlin observed an expensive looking late model Lincoln Continental with out of state license plates parked near an area known to be frequented by criminals reselling stolen luxury automobiles. Affidavit of Loughlin at 1. At the time of defendant’s observation he was assigned to the Grand Larceny Automobile Squad of the 44th Precinct. Defendant’s main assignment was the recovery of stolen automobiles. Affidavit of Loughlin at 1.

Upon checking the automobile’s license plates by using a computer terminal within the police car, defendant learned that the license plates belonged to a 1964 Chrysler. Defendant then read the vehicle identification number of the automobile and learned that the automobile had been reported stolen some months earlier. Defendant waited and continued to observe the automobile until plaintiff returned, entered the car, and began to drive away. Officer Loughlin then stopped plaintiff and a search of his person revealed both the keys to the automobile and a loaded pistol. Affidavit of Loughlin at 1. Plaintiff was arrested and charged with criminal possession of stolen property, unauthorized use of a vehicle, and criminal possession of a weapon. After trial, the jury found plaintiff guilty of criminal possession of a weapon but returned a verdict of not guilty on the other charges. Defendant’s Exhibit C. Plaintiff was sentenced to serve a minimum of two and one half years in prison. Defendant’s Exhibit A.

Plaintiff alleges, as a basis of his cause of action, that defendant’s statements at trial indicated that defendant’s “investigation came about because the luxury auto in that location of the Bronx was out of place being it is considered a poor neighborhood.” Complaint at 4. Plaintiff also alleges, as a separate basis for his cause of action, that defendant made statements that “were prejudice [sic] in nature, and clear deformation [sic] of my character.” Complaint at 4. It is unclear whether plaintiff alleges that defendant's statements were made at trial or at the time of the arrest.

Plaintiff first filed the complaint in 1982 while still a prisoner. In early 1984, after receiving leave of the court to proceed in forma pauperis, the complaint was served on defendant. During this time plaintiff was released from prison and contacted the court to report his new address and to reaffirm his interest in the action. Plaintiff’s letter of March 12, 1984. Since contacting the court in March 1984, no correspondence has been received from plaintiff. Further, plaintiff has failed to appear for any of the three status conferences scheduled for April 11, 1985, May 7, 1985, and May 14, 1985, even though written notification was sent to plaintiff’s last known address in advance of each conference.

On March 4, 1985 defendant made a motion for summary judgment pursuant to Fed.R.Civ.P. 56. In support of the motion defendant argued that probable cause existed at the time of plaintiff’s arrest. Defendant also argued that he was entitled to a good faith defense even if probable cause was found to be lacking. No response to the summary judgment motion has been received from plaintiff. Once again, attempts were made by this court to notify plaintiff at his last known address of the motion return date, both by letter and by telephone. The court was unable to reach plaintiff.

II. DISCUSSION

It is respectfully recommended that defendant’s motion for summary judgment be granted.

A. Probable Cause

Plaintiff’s complaint alleges a cause of action based upon the circumstances of his arrest. A plaintiff may not recover for a violation of his civil rights arising out of an arrest if probable cause to arrest is established. Jaroslawicz v. Seedman, 528 F.2d 727, 732 (2d Cir.1975); Bivens v. Six Unknown Named Agents Of Federal Bureau of Narcotics, 456 F.2d 1339, 1347-48 (2d Cir.1972) (on remand)); Greene v. Brown, 535 F.Supp. 1096, 1100 (E.D.N.Y. 1982) (citing Terket v. Lund, 623 F.2d 29 (7th Cir.1980)). The applicable standard for probable cause to arrest is satisfied when a police officer has knowledge of “facts and circumstances ‘sufficient to warrant a prudent man in believing ... ’” that an offense has been committed. Gerstein v. Pugh, 420 U.S. 103, 111, 95 S.Ct. 854, 861, 43 L.Ed.2d 54 (1975) (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). An objective standard of reasonableness must be applied when judging the actions of an official charged with misconduct. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).

In the present case defendant observed a late model luxury automobile parked in an area known to be used for the resale of stolen automobiles. Although defendant’s suspicions were aroused, he did not take immediate action against the plaintiff. Instead, defendant investigated further and learned that the automobile under observation bore the license plates of another car and had also been reported stolen. Plaintiff was not arrested until after he entered the stolen automobile and began to drive away. Under these circumstances there can be no question that probable cause existed for the arrest of plaintiff.

The standard of probable cause requires only a probability of criminal activity, not a prima facie showing. Zurcher v. Stanford Daily, 436 U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978) reh’g denied 439 U.S. 885, 99 S.Ct. 232, 58 L.Ed.2d 200 (1978). Further, the totality of the circumstances must be considered in reaching a determination as to the existence of probable cause. Buchanan v. Sowa, 592 F.Supp. 1009, 1016 (N.D.Ohio 1984). Thus, viewed from “the vantage point of a prudent, reasonable, cautious police officer on the scene at the time of the arrest ...” it is impossible not to conclude that probable cause existed at the time of plaintiff’s arrest. United States v. Davis, 458 F.2d 819, 821 (D.C.Cir.1972).

Under similar circumstances a New York state court has held that police officers have the right to arrest a person without a warrant for a petty offense, including traffic violations. People v. Pollaci, 68 A.D.2d 71, 75, 416 N.Y.S.2d 34, 37 (2d Dept.1979). See also New York Criminal Procedure Law § 140.10 (McKinney 1985). In Pollaci the traffic infraction supporting the arrest was an improperly registered vehicle. The car the Pollaci defendants were driving bore the license plates of another car. Pollaci, 68 A.D.2d at 73, 416 N.Y.S.2d at 37. The Pollaci court found that because probable cause existed at the time of the arrest, the contemporaneous search of the automobile was proper as incident to the arrest. Id. 416 N.Y.S.2d at 38.

Because probable cause existed for the arrest and the search incident to that arrest, plaintiff’s claim that his civil rights were violated cannot stand and it is respectfully recommended that the defendants’ motion for summary judgment be granted.

B. Good Faith

Assuming, arguendo, that there was no probable cause to arrest plaintiff, a police officer will not be liable for a violation of civil rights if the arresting officer believed in good faith that the arrest was lawful and if this belief was reasonable. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Dominguez v. Beame, 603 F.2d 337, 342-44 (2d Cir.1979) cert. denied 446 U.S. 917, 100 S.Ct. 1850, 64 L.Ed.2d 271 (1980)); Greene, 535 F.Supp. at 1101 (citing Procunier v. Navarette, 434 U.S. 555, 561-62, 98 S.Ct. 855, 859-60, 55 L.Ed.2d 24 (1977)). There is no allegation of bad faith in the pleadings or the record. To the contrary, the record reveals that defendant did not arrest the plaintiff until after learning that the car had been reported stolen. Therefore, defendant’s belief that the arrest was lawful is entirely reasonable and as such is a complete defense to the present action.

C. Defamation

Plaintiff has also alleged albeit somewhat inartfully, a deprivation of his civil rights based upon statements made by the defendant either at the time of arrest or at plaintiff’s trial. Defamation, however, will not support a civil rights claim. Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) reh’g denied 425 U.S. 985, 96 S.Ct. 2194, 48 L.Ed.2d 811 (1976). No infringement of a constitutional right is claimed when defamation is alleged. Rosenberg v. Martin, 478 F.2d 520, 524 (2d Cir.) cert. denied, 414 U.S. 872, 94 S.Ct. 102, 38 L.Ed.2d 90 (1973). Moreover, statements made during the course of a trial that are relevant to the judicial proceeding are given an absolute privilege. Bouchet v. National Urban League, Inc., 730 F.2d 799, 806 (D.C.Cir.1984); Reeves v. American Broadcasting Companies, Inc., 580 F.Supp. 84, (S.D.N.Y.) aff’d, 719 F.2d 602 (2d Cir.1983). Therefore, plaintiff may not maintain an action based upon defamatory statements alleged to have been made at trial. Finally, if all claims arising under federal law are dismissed then this court may not exercise pendent jurisdiction over any state claims based upon defamation.

D. Plaintiffs Failure to Prosecute

Should a reviewing court disagree with my discussion of the merits, this case may also be dismissed for failure to prosecute, pursuant to Fed.R.Civ.P. 41(b). Although the defendants have not made a Rule 41(b) motion, a court may dismiss an action sua sponte without affording a hearing or other notice of its intent to consider dismissal. Link v. Wabash Railroad Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 1388-89, 8 L.Ed.2d 734 (1962); Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 42 (2d Cir.1982). In Link the Supreme Court found that

[t]he authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an “inherent power,” governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.

Link, 370 U.S. at 630-31, 82 S.Ct. at 1388-89.

In the present case plaintiff has failed to take any action to prepare his case for trial since the filing of the complaint. Plaintiff has also failed to appear for any of the three status conferences scheduled by this court. Further, defendant’s motion for summary judgment has gone unanswered. Although the plaintiff contacted the court to report his address upon release from prison, no further correspondence has been received from him. The court’s efforts to locate plaintiff by mail or by telephone have been unsuccessful. Therefore, I respectfully recommend that plaintiff’s action be dismissed for failure to prosecute.

III. CONCLUSION

Because defendant has demonstrated that probable cause existed at the time of the arrest and because of his good faith defense it is respectfully recommended that defendant’s motion for summary judgment be granted. In the alternative it is respectfully recommended that the action be dismissed for failure to prosecute.

A copy of this Report and Recommendation is being mailed today to all parties, who are hereby advised that objections to the report may be served and filed with the district court, with a copy to me, within ten (10) days.


author: LYNCH, District Judge.

text:
    BEUTLER SHEETMETAL WORKS, a California corporation; and River City Mechanical, a sole proprietorship, Plaintiffs, v. McMORGAN & COMPANY, a California corporation; and Carpenters Pension Trust Fund For Northern California, Defendants.
    No. C-82-6269 EFL.
    United States District Court, N.D. California.
    Aug. 14, 1985.

      Thierman, Simpson & Cook, Dennis B. Cook, Sacramento, Cal., for plaintiffs Beutler Sheetmetal Works and River City Mechanical.
    Victor J. Van Bourg, Michael B. Roger, Robert M. Hirsch, Van Bourg, Weinberg, Roger & Rosenfeld, A Professional Corp., Stanton & Kay, San Francisco, Cal., for defendant Carpenters Pension Trust Fund for Northern Cal.
    Charles T.C. Compton, Peter J. Courture, Richard J. Gray, Wilson, Sonsini, Goodrich & Rosati, A Professional Corp., Palo Alto, Cal., for defendant McMorgan & Company.
   SUMMARY JUDGMENT

LYNCH, District Judge.

This matter is before the Court on defendants’ Carpenters Pension Trust Fund for Northern California (“Trust Fund”) and McMorgan & Company (“McMorgan”) motion for summary judgment. The Trust Fund is an employee benefit trust established pursuant to a collective bargaining agreement between Carpenters 46 Northern California Conference Board and various employers and employer associations. McMorgan is an investment management service that administers the Trust Fund’s investments. At issue is whether the Trust Fund’s policy of conditioning its mortgage financing of residential housing on the construction of the units by union craftspersons violated section 1 of the Sherman Act.

The plaintiffs, Beutler Sheetmetal Works (“Beutler”) and River City Mechanical (“River City”) are heating, ventilating and air conditioning contractors. During 1982 and 1983, both Beutler and River City subcontracted with Citation Builders (“Citation”) on several projects in the Sacramento area. During this same period, Beutler also performed heating and air conditioning work for Morrison Homes (“Morrison”). Neither of the plaintiffs are presently covered by a collective bargaining agreement.

Morrison and Citation used Trust Fund monies for mortgage financing of their residential developments. As contained in the Trust Fund’s commitment letter initiating the investment, all “carpenters, laborers, operating engineers, cement masons and construction teamsters” employed at a work site financed by the trust fund had to be covered by a collective bargaining agreement with either AFL-CIO or Teamster affiliated unions. As construed by the Trust Fund’s administrator, McMorgan, this restriction included heating, ventilation and air conditioning contractors.

As a result of this limitation in the Trust Fund’s commitment letter, both Morrison and Citation terminated their contracts with the plaintiffs. After being notified by McMorgan that a continuation of its subcontract with Beutler would result in a withdraw of all funding, Morrison cancelled its subcontract with Beutler in November 1982. Citation cancelled its contracts with both Beutler and River City after being warned by McMorgan that failure to do so would result in the builder losing millions of dollars in residential mortage financing.

As it now stands, the complaint alleges a conspiracy between McMorgan and the Trust Fund to coerce several developers of residential housing in the Sacramento area (including Morrison and Citation) to boycott the plaintiffs. Such a conspiracy, the plaintiffs allege, constitutes a per se violation of the Sherman Act. In addition, the plaintiffs claim that this boycott intentionally interfered with existing contracts and obstructed future business relations.

The defendants move for summary judgment on the section 1 antitrust claim based on two separate arguments. First, the defendants argue that the plaintiff has failed to provide any probative evidence of concerted action necessary for a violation of section 1. Second, the defendants contend that even if a conspiracy can be established, the conduct complained of does not constitute a per se violation of the Sherman Act. The defendants assert that a vertical boycott by non-competitors must be evaluated under the rule of reason. As required by the rule of reason, the plaintiffs must show some harm to the relevant market as a result of anticompetitive conduct. Fine v. Barry and Enright Productions, 731 F.2d 1394, 1399 (9th Cir.), cert. denied, — U.S. —, 105 S.Ct. 248, 83 L.Ed.2d 186 (1984); Cascade Cabinet Co. v. Western Cabinet & Millwork, Inc., 710 F.2d 1366, 1373 (9th Cir.1983). The defendants contend that the plaintiffs’ failure to define a relevant market or to prove actual harm to competition in that market entitles them to summary judgment on the section 1 claims.

I.

Summary judgment is proper only where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The party moving for summary judgment bears the burden of demonstrating the absence of a genuine issue as to any material fact and summary judgment must be denied if the facts supporting the motion do not establish the nonexistence of such an issue. Blair Foods, Inc. v. Ranchers Cotton Oil, 610 F.2d 665 (9th Cir.1980). If, however, the moving party meets its burden, then the opposing party must come forward with significant probative evidence supporting its complaint. R.C. Dick Geothermal Corp. v. Themogenics, Inc., 566 F.Supp. 1104, 1107 (N.D.Cal.1983).

A. Conspiracy Element

Section 1 of the Sherman Act, 15 U.S.C. § 1, makes unlawful those contracts, combinations or conspiracies that unreasonably restrain trade. Board of Trade v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, 244, 62 L.Ed. 683 (1918). Thus, under Section 1 there must be concerted action. Independent action is not proscribed. Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 104 S.Ct. 1464, 1469, 79 L.Ed.2d 775 (1984).

The plaintiffs allege a conspiracy between the Trust Fund, its administrator McMorgan and several developers and mortgage lenders. According to the complaint, the Trust Fund, through McMorgan, coerced builders and their lenders to terminate subcontracts obtained by the plaintiffs and others not covered by a collective bargaining agreement. Thus, there are two conspiracies alleged: the one between McMorgan and the Trust Fund and the one between the Trust Fund (including McMorgan) and the developers-lenders.

1. Developers-Lenders

As to the developer-lender conspiracy, the defendants contend that there is no evidence that these individuals influenced or were at all involved in the establishment of the union-only investment policy of the Trust Fund. They were merely the recipients of restrictive commitment letters. In no way did these alleged co-conspirators knowingly participate in the investment decisions of the Trust Fund.

Such knowing participation, however, is a prerequisite to liability under Section 1. As held by the Supreme Court in Spray-Rite, the law requires direct or circumstantial evidence that reasonably tends to prove that the defendants had a conscious commitment to a common scheme designed to acheive an unlawful objective. Spray-Rite, 104 S.Ct. at 1471.

After nearly three years of discovery, the plaintiffs have provided no evidence that any of the builders or lenders shared with the defendants any unlawful or anticompetitive purposes. The record is clear that loan originators simply agreed to sell a relative small number of mortgages to the Trust Fund meeting the union-only restriction. The contractors merely enforced their existing policy of hiring only those subcontractors who had signed collective bargaining agreements. Such acquiescence to the Trust Fund’s demand in order to avoid termination is not actionable as an antitrust conpiracy. See Spray-Rite, 104 S.Ct. at 1469.

The facts presented in this case are clearly distinguishable from those in the case cited by the plaintiffs, Larry V. Muko, Inc. v. Southwestern Pennsylvania Building and Construction Trades Council, 609 F.2d 1368 (3rd Cir.1979), cert. denied, 459 U.S. 916, 103 S.Ct. 229, 74 L.Ed.2d 182 (1982). In the Muko case, the court held that a defendant corporation’s active participation in formulating union-only contracting restrictions exposed it to antitrust liability under section 1. By contrast, in the present case there is no evidence presented that the contractors or lenders participated in any way in the formulation or implementation of the Trust Fund restrictions. The record before that Court shows that the union-only restriction in the commitment letters was simply a unilateral investment decision by the Trust Fund, in association with McMorgan.

As the plaintiffs provide no evidence that the defendants conspired with contractors or lenders in arriving at the challenged restriction in the commitment letter, summary judgment is appropriate as to this conspiracy allegation. See First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569 (1968) (absence of any significant probative evidence tending to support the complaint entitles moving party to sum: mary judgment.)

2. Trust Fund—McMorgan

The second conspiracy alleged by the plaintiffs, and upon which they principally rely in opposing the motion for summary judgment, is between the Trust Fund and its administrator, McMorgan. The defendants contend that as a matter of law McMorgan was not sufficiently independent of the Trust Fund to be able to conspire to violate the antitrust laws.

The defendants rely on three cases to support their contention. In all three, the courts ruled that a pension fund trustee was incapable of conspiring with the trust to violate section 1. In Austin v. House of Vision, Inc., 404 F.2d 401, 403 (7th Cir. 1969), the court held that where a trustee’s duties were limited to the administration of the fund pursuant to its written provisions, there could be no actionable conspiracy. “There was no allegation of conspiracy in restraint of trade among competitors, the proscription of which is contemplated by section 1 of the Sherman Act.” Id. In' Graham v. Hudgins, Thompson, Ball & Associates, Inc., 319 F.Supp. 1335, 1337 (N.D.Okla.1970), the district court adopted the Austin holding and ruled that where a trustee’s duties were limited to the administration of the plan, then there was not a “plurality of actors” as required by section 1. “As trustee, it can only do that which ... the settlor of the trust has prescribed.” Id. The most recent case, Golden v. Ken-tile Floors, Inc., 475 F.2d 288, 290 (5th Cir.1973), also held that trustees responsible for the investment of trust funds cannot be a participant in a combination or conspiracy in restraint of trade.

To hold the trustee liable for an antitrust violation under circumstances here present would presage liability for a host of servicing agents only fortuitously connected with the Sherman Act defendants. Supreme Court precedent makes clear, that participation in a combination is illegal only when, at a minimum, it manifestly results from the family of procompetitive or anticompetitive objectives related to the relevant market.

Id. at 290-91. As the record in Kentile established that the trustee’s role was limited to investment functions and was not directed toward excluding potential competitors from the market, it could not be construed to have conspired to violate section 1.

The facts surrounding McMorgan’s relationship with the Trust Fund are not in dispute. McMorgan was a fiduciary to the Trust under ERISA and as such had a duty to manage the fund assets prudently and in accordance with the Trust Fund’s investment guidelines. McMorgan assisted in the formulation of the union-only policy and advised the investment committee to include such a condition on its mortgage commitment letter. In addition, as part of its managment of the Trust Fund, McMorgan interpreted the commitment letter’s restriction to include all construction workers, not just those categories expressly enumerated in the commitment letter itself. Its implementation of the union-only restriction was simply one part of its overall responsibility for securing mortgage financing instruments for the Trust Fund.

Looking at these facts, it is .clear that McMorgan operated only as an administrator and trustee of the Trust Fund. The cases cited above do not require a trustee to remain passive in order to avoid Sherman Act liability. Rather, what is required is that the trustee act as the agent of the Trust in carrying out its expressed investment policies. ' That McMorgan acted in such a representative capacity is evident from the uncontroverted facts in this case. That the investment manager construed an enumerated list contained in a commitment letter to include heating, ventilating and air conditioning contractors does not establish that McMorgan acted autonomously in pursuing their interests beyond or as distinct from those of the Trust Fund.

Where, as here, the investment manager was not a competitor or in any way motivated by anticompetitive objectives, the relationship between McMorgan and the Trust Fund cannot be construed as a conspiracy to violate section 1. To hold otherwise would expose ERISA fiduciaries to antitrust liability for any investment decisions promulgated or enforced by them in furtherance of the trust’s objectives. Ken-tile, 475 F.2d at 290. As there is no allegation of a restraint of trade among competitors, the proscriptions of the Sherman Act should not be called into play. Austin, 404 F.2d at 403.

The Court, therefore, holds that under the circumstances presented here McMorgan was incapable as a matter of law of conspiring with the Trust Fund to violate section 1. As the plainiffs have failed to provide any probative evidence to support their other allegations of conspiracy, the Court finds that the requisite contract, combination or conspiracy for section 1 liability has not been established. The defendants, therefore, are entitled to summary judgment on count 1 and the Court need not reach the other arguments asserted by the defendants in support of their motion.

As there are no federal claims remaining, the Court dismisses the remaining pendant state claims without prejudice.

IT IS SO ORDERED.

      . The plaintiffs filed their initial complaint in this action on November 12, 1982, asserting a single claim for relief under section 1 of the Sherman Act. The plaintiffs amended their complaint six months later to add the state tort causes of action for intentional interference with contract and with prospective business relations. These state claims arise from the same factual allegations contained in the Sherman Act claim. The plaintiffs have moved for a second amendment to their complaint. As this amendment does not affect the defendants’ summary judgment motion, the Court grants the plaintiffs’ motion and will consider the complaint as it stands after the second amendment.

      . As the Court’s jurisdiction over the state law claims in the complaint is pendant upon the federal antitrust causes of action, should the defendants prevail on summary judgment, the Court would exercise its discretion and dismiss the remaining claims without prejudice. See United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).

      . When Beutler and River City commenced performing work for Citation and at the time Beutler contracted with Morrison, each was a signatory to a collective bargaining agreement with Sheetmetal Local 162.

      . The plaintiffs conceding in their answer to defendants’ interrogatory 110 that McMorgan acted as an agent or representative of the Trust Fund with respect to all of the wrongful acts alleged in the complaint.