author: IRVING BEN COOPER, District Judge.

text:
    Pasquale PETRAMALE, Plaintiff, v. LOCAL UNION 17, LABORERS’ INTERNATIONAL UNION OF NORTH AMERICA, et al., Defendants.
    No. 81 Civ. 4817 (IBC).
    United States District Court, S.D. New York.
    Jan. 6, 1986.

      Hall & Sloan, New York City, for plaintiff; Burton H. Hall, of counsel.
    Sipser, Weinstock, Harper, Dorn & Liebowitz, New York City, Theodore T. Green, Connerton, Bernstein & Katz, Washington, D.C., for defendant Laborers’ Intern. Union of North America, AFL-CIO; I. Philip Sipser, Richard Dorn, New York City, Laurence E. Gold, Washington, D.C., of counsel.
    Rider, Weiner, Lewis & Melchiori, P.C., Newburgh, N.Y., for defendant Local No. 17; Alan R. Lewis, of counsel.
   IRVING BEN COOPER, District Judge.

Defendant Laborers’ International Union of North America, AFL-CIO (“the International” or “LIUNA”) moves for partial summary judgment pursuant to Fed.R. Civ.P. 56, requesting us to find that neither monetary damages nor attorneys’ fees against the International would be appropriate in this case. Defendant Local No. 17 (“the Local” or “Local 17”) and the individual defendants support only that portion of the motion as relates to attorneys’ fees and argue that the rationale advanced by the International is equally applicable to them. Further, the Local and individual defendants oppose the request of the International that summary judgment be granted it as to monetary damages. Plaintiff opposes the motion in to to.

The International also moves to amend its answer to assert the affirmative defense of statute of limitations, and, if granted, for judgment on the pleadings. The Local, individual defendants and plaintiff oppose the motion. In addition, the International moves without opposition to be represented by Theodore T. Green, Esq.

Plaintiff moves for leave to amend its complaint to allege denial of job referrals and loss of employment opportunities. All the defendants oppose plaintiff’s request.

FACTS

Plaintiff is a member of Local 17. At a meeting of the Local held on August 29, 1980, plaintiff became involved in an altercation between two members present. The meeting was interrupted and the police were called. When order was restored, plaintiff stood up and spoke without recognition from the presiding official. According to the Minutes of the meeting:

Br. Pat Petramale stated from the back of the meeting Hall that all three of you are crooks. Referring to the three Delegates on the rostrum. All the fucking Officers are crooks. The whole fucking Union and International is crooked and Br. Reed and Br. Curry Naming the Election Committee are fucking liars. Fuck you all, you laborers deserve these people. I’m getting out of this fucking Union. They took all your money.

Plaintiff then walked out of the meeting. Two days later plaintiff was quoted in a local newspaper claiming that the scuffle was “set up” by the Local union leadership.

Charges were filed against plaintiff by the three individual defendants, Anthony Galietta (the Local’s president), Lorenzo Diorio (the Local’s business manager) and Lawrence T. Diorio (the Local’s Secretary-Treasurer). The charges, directed both at plaintiff’s conduct at the meeting and his subsequent remarks to the newspaper, alleged violations of two sections of the Uniform Local Union Constitution (“ULUC”): section 3(f), forbidding, inter alia, “inter-fer[ence] with the proper and orderly conduct” of union business, the use of “vulgar and profane language,” and the making of “slanderous statements or accusations” about union officers, and section 3(g), prohibiting members from “willfully slandering” union officers and from “circulating false reports or gross misrepresentations” about their honesty.

The hearing by the Local was held on October 29, 1980; plaintiff did not appear. The Board found him “guilty of all charges,” fined him $1,500 and suspended him from attendance at union meetings for the next ten years. The membership of the Local approved these measures by a unanimous vote.

Plaintiff then appealed this decision to the International and submitted various documents in support thereof. The hearing before the International’s Eastern Hearings Panel was held on June 23, 1981. Once again, plaintiff did not appear although duly notified. The Hearings Panel modified the Trial Board’s ruling by finding that the only conduct which violated sections 3(f) and (g) of the ULUC was plaintiff’s conduct at the meeting, not his report to the newspaper. The Panel also modified the discipline imposed by rescinding the fine and reducing plaintiff’s suspension to two years.

Plaintiff filed this lawsuit on August 4, 1981. At the convention of the local unions and district councils held September 14-18, 1981, the delegates voted to repeal sections 3(f) and (g). In December 1981 Local 17 further reduced plaintiff’s suspension to the time of the meetings held prior thereto.

A trial was held before us resulting in a jury verdict for defendants. On appeal, the Second Circuit reversed on the ground that a union member cannot be disciplined for a charge which does not distinguish between protected speech and other behavior, and concluded that “Petramale is entitled to a directed verdict on liability.” Petramale v. Local No. 17 of Laborers International Union of N.A. et al., 736 F.2d 13, 19 (2d Cir.1984). The Court of Appeals further declared:

Since subsections (f) and (g) of Article II, section 3 of the Uniform Local Union Constitution have been deleted, Petra-male’s claims for declaratory and injunctive relief are moot. His claims for injunctive relief against the discipline imposed by Local 17 are viable, and an appropriate order consistent with this opinion should be entered by the district court on remand. His claims for damages and fees must be adjudicated on the remand.

Id.

We now proceed to examine each of the motions seriatum.

I. Motions by LIUNA

A. Dismissal of the Claims for Monetary Damages

LIUNA argues that it cannot be liable in damages since it merely performed its internal appellate functions in good faith. The International does not quarrel with the position that it could be liable for injunctive or declaratory relief. However, it repeats the assertion made by the Second Circuit that any such relief against it is now moot. Local 17, the individual defendants and plaintiff contend that the questions of whether the International acted only as an appellate review board and whether it acted in good faith are triable and inappropriate for summary judgment.

When a national or international union acts only as an appellate body and exercises its function in good faith, it cannot be answerable in damages to a member who is wrongfully disciplined. See International Brotherhood of Electrical Workers v. NLRB, 487 F.2d 1113, 1129 (D.C.Cir.1972), aff'd, 417 U.S. 790, 94 S.Ct. 2737, 41 L.Ed.2d 477 (1973); Solomon v. Brotherhood of Painters, Decorators and Paperhangers of America, 218 N.Y. 115, 122-23, 112 N.E. 752 (1916) (Seabury, J.); Schouten v. Alpine, 215 N.Y. 225, 231-32, 109 N.E. 244 (1915); Ehrlich v. Maggiore, 24 A.D.2d 947, 265 N.Y.S.2d 418, 420 (1st Dep’t 1965). This issue is distinct from the question also raised by LIUNA of the liability of a national or international union for acts of its local acting as an agent. See Chapa v. Local 18, 737 F.2d 929, 932 (11th Cir.1984); NLRB v. Local Union No. 46, 727 F.2d 234, 237 (2d Cir.1984); Shimman v. Frank, 625 F.2d 80, 94-99 (6th Cir.1980); Allen v. International Alliance of Theatrical, Stage Employees and Moving Picture Machine Operators, 338 F.2d 309, 319 (5th Cir.1964). Indeed, this second issue is moot in the instant case since the Second Circuit already found that both the Local and International are liable. See Petramale, supra, at 19.

We thus must determine whether the International acted only in its appellate capacity and whether it acted in good faith (there is no claim that it acted fraudulently). With regard to the first question, the Local and individual defendants contend that LIUNA’s “Hearing Panel did not simply review a cold record of the proceedings of the Local 17 trial board, but took live testimony from the three charging parties [the individual defendants herein] as well as from the Recording Secretary Victor Garzione.” (Counter Statement of Material Facts as to Which There is No Genuine Issue to be Tried, ¶ 17)

The Third Circuit in Goodman v. Laborers International Union of America, 742 F.2d 780, 784-85 (3d Cir.1984) and the Ninth Circuit in Perry v. Milk Drivers’ & Dairy Employees’ Union, 656 F.2d 536, 539 (9th Cir.1981) addressed an analogous issue to the one now before us. In both cases,, the courts of appeal questioned whether defects in a hearing before a local union trial board were cured by a later fair hearing before the international union. In Perry, the Court held that a full trial de novo which makes an independent determination of the merits can cure the defects that arose from a biased panel of the local union. Perry, supra, at 539. The Court in Goodman further explored whether the action taken by the international constituted a trial de novo or a review of the local decision. In determining that the international’s appeal panel acted as a reviewing board and did not retry the plaintiff therein, the Third Circuit relied on the following factors: (1) The wording of the constitution of the international union suggested that its appellate power was limited to a review of the local decision and did not extend to independent determinations of the merits. (2) Although the plaintiff was permitted to testify, call two character witnesses, cross-examine the witness called by the opposition and be represented by counsel, the record of the local trial board hearing was incorporated into the evidence considered by the international panel, which seriously undermined the independence and objectivity of the latter. (3) The language of the findings of the International panel indicated that it conducted a review process: its determination noted the fairness of the trial board and stated, “the charges are amply supported by the evidence,” without making any specific findings. (4) The parties expected an appeal rather than a retrial. Goodman, supra, at 785.

We find these factors applicable to the instant inquiry of whether the International panel acted in an appellate capacity. In order to fully evaluate each of the elements, we studied the entire file in this case: a total of 95 documents, the 654 page trial transcript and trial exhibits, as well as the briefs before the appellate court.

With regard to the first factor, the relevant provisions of the constitution of LIUNA effective when plaintiff appealed the determination of the Local stated:

Section 7. If either the charging party or the accused is aggrieved, he may within thirty days from the date of notice of said action, appeal therefrom to the General Executive Board of the International Union, by filing such appeal with the General Secretary-Treasurer ... in writing. The appeal shall clearly and specifically set forth the grounds in support of said appeal and shall contain a copy of the findings and decision, and action.
After notice of such appeal ... the Local Union shall then submit promptly to the General Secretary Treasurer, the following:
1. Copy of the charges
2. Copy of the notice for a hearing
3. Record of the Trial Board hearing
4. Copy of Report of the Trial Board
5. Copy of notification of the Trial Board’s decision
6. Copy of minutes of regular meeting at which the Trial Board reported to the Local Union
7. Copy of notification of Local Union action.

(Exhibit 1) Clearly, the constitution of the International envisioned an appellate process by its hearings panel.

The second factor we must consider is the extent to which the appellees presented a defense at the hearing before the International panel. We note that the panel did elicit a very slight amount of testimony from the three individual defendants concerning the facts underlying the charges against plaintiff (seven pages of stenographer’s minutes in total) (Exhibit 5); plaintiff did not testify or cross-examine because he did not appear. However, the panel examined the entire record in the case in reaching its determination; indeed, as we have already noted, the union’s constitution mandated that the appellate court review, inter alia, the record and report of the trial board hearing as well as the minutes of the regular meeting where the trial board reported to the local union. In short, LIUNA’s determination was based mostly upon the record before it, undermining the independence of the International panel.

The third element involves whether the words used by the International panel in making its findings constitute language of review. The recommendation of the Eastern Hearings Panel to the General Executive Board reads as follows:

Appeal of Pasquale Petramale, Local Union 17, Newburgh, N.Y.
In this case, Pasquale Petramale, by letters, etc., postmarked January 28, 1981, appeals from the decision of the Trial Board of the Local Union finding him guilty of charges preferred against him of violating Article III, Section 3(f) and 3(g) of the Uniform Local Union Constitution fining him $1,500 and suspending him from attending meetings for a period of ten years.
There was an appearance on behalf of Local Union 17, Newburgh, N.Y., and no appearance by the Appellant.
The Panel reviewed and considered the record in this case, and
FINDS: 1. That there was some conflict as to the time and place when the hearing on the charges in this was to be held.
2. That this was eventually cleared and the Appellant was made aware of the time and place of the hearing on these charges.
3. That Appellant failed to appear at the hearing on these charges.
4. That Appellant violated Article III, Section 3(f) and (g) of the Local Union Constitution when attending meetings.
The Panel, accordingly
RECOMMENDS: That the appeal be denied; that the suspension from attending meetings be reduced to two years and the fine imposed be rescinded.

(Exhibit 24)

The General Executive Board considered this recommendation and at its meeting commencing July 7, 1981 decided:

“After due deliberation, it is
VOTED: That the report of the Panel is approved and that the Findings and Recommendation be and the same hereby are adopted.

We find that the language used by the International’s Executive Board in making its determination demonstrates that it acted as a reviewing panel.

The final factor involves the expectations of the parties. There can be no doubt that plaintiff applied for, and treated his request as, an appeal. On January 26, 1981, plaintiff’s then counsel, Joseph M. Ingarra, Esq., wrote a letter to the General Secretary-Treasurer, General Executive Board, of the International Union. In it he stated, “Pursuant to Section 7 of Article XII of the Uniform Local Union Constitution, Patsy Petramale, the accused, files an appeal from a decision of the trial board, Local No. 17, dated October 29, 1980____” (emphasis added) Furthermore, Mr. Ingarra’s brief to the International panel, written in the tenor of a brief to a judicial appellate tribunal, was entitled, “Appeal Pursuant to Article XII Section 7 of the Uniform Local Union Constitution.” (emphasis added) (Exhibit 33) We have not come across any evidence even suggesting that plaintiff or defendants did not treat as an appeal the hearing before the International panel.

Based upon our analysis of the foregoing factors, we do not hesitate to conclude that the International panel acted in an appellate capacity. Consequently, if it exercised its function in good faith, it cannot be held liable in damages.

The Local Union argues that the International did not act in good faith since it proceeded with the appeal without giving the Local notice of the impending or potential change in the union’s constitutional provisions which the Local was attempting to enforce. Plaintiff contends that the bad faith of the International was evidenced by its knowledge, at the time plaintiff’s appeal was decided, that the constitutional provisions under which plaintiff was disciplined were contrary to law as violative of free speech and that the law obligated LIUNA to delete them.

The Second Circuit remanded this case with the direction that plaintiff’s “claims for damages and fees must be adjudicated____” Petramale, supra, at 19. In our opinion, it would fall outside this mandate to adjudicate whether the International panel acted in good faith when rendering its opinion on plaintiff’s appeal. The plain fact remains that plaintiff and the Local Union had many opportunities at the trial to prove that the International acted in bad faith. Indeed, in his memorandum opposing the motion, at 1, counsel for plaintiff states:

In November 1982, defendant Laborers’ International Union of North America (“LIUNA”) moved for summary judgment dismissing the action as to it, arguing inter alia “that LIUNA may not be held responsible for the alleged wrongful conduct of a local union where its only actions were to affirm on appeal the discipline imposed by a local union upon an uncontested record____” The motion was denied by this Court on February 23, 1983.

Having been aware before the trial that this was one of the issues raised by the International, plaintiff, the Local and the individual defendants were certainly on notice that this claim would be adjudicated.

The jury rejected plaintiffs claim of liability against the International, and in reversing, the Second Circuit held that a union member cannot be disciplined for a charge which does not distinguish between protected speech and other behavior; the Court did not predicate its finding on bad faith on the part of the International. In addition, our own independent review of the trial record satisfies us that neither plaintiff nor the Local has proven that the International acted in bad faith. We regard it entirely too belated and beyond the scope of what we are now required to adjudicate, to afford the parties another opportunity to test out the question of bad faith. We note too that no relevant additional evidence on this issue has even been suggested in the papers supporting this motion. Since, as already pointed out hereinabove, the International acted in an appellate capacity and performed its function in good faith, it cannot be held liable in damages. Further, as the Second Circuit already found, plaintiffs claims for declaratory and injunctive relief against subsections (f) and (g) of Article III, section 3 of the Uniform Local Union Constitution are now moot. Consequently, we grant the motion of the International for partial summary judgment as to damages.

B. Dismissal of the Claim for Attorneys’ Fees

The International also requests that we grant summary judgment dismissing plaintiffs claim for attorneys’ fees. The Local and individual defendants support the position of the International that no attorneys’ fees should be awarded plaintiff, and argue that the rationale put forth by LIUNA is equally applicable to them. Plaintiff opposes the motion.

We decline to decide this issue at the present time. Although plaintiff is clearly the prevailing party on the question of liability, the litigation herein has not as yet been brought to a close. There may be proof adduced during the trial on damages that would impact, even to a slight degree, our determination on the appropriateness of awarding plaintiff attorneys’ fees. Our determination finds support in two cases.

In Rosario v. Amalgamated Ladies’ Garment Cutters’ Union, 749 F.2d 1000 (2d Cir.1984), our Circuit Court of Appeals set forth, inter alia, one consideration in requests for attorneys’ fees which is applicable to the instant situation. The Circuit noted:

Although the substantial verdict awarded by the jury for violation of the plaintiffs’ LMRDA [Labor Management Reporting and Disclosure Act] rights was largely set aside ... it had the potential effect of deterring the union from denying members their due process procedural rights guaranteed by § 101 of LMRDA and of encouraging union members to enforce those rights through § 102.

Similarly, if the jury herein awards a large verdict to the plaintiff and against the Local and individual defendants, it could potentially affect the future behavior of both the International and Local union as well as the responses of their members — a factor to be considered in awarding attorney’s fees.

A similar rationale was posited by the Fifth Circuit Court of Appeals in Landry v. Sabine Independent Seamen’s Association, 623 F.2d 347 (5th Cir.1980) where the Court found that in light of the nominal sums of money awarded in damages and the small number of union members involved, the suit did not confer a substantial benefit on union members and attorneys’ fees were thus inappropriate. Id. at 351. However, the Court noted that fees will not be precluded by numbers alone when the issue about which the case is concerned is of paramount importance, such as the right of free speech, and the rights of union members would in all likelihood have continued to be infringed but for plaintiff’s action. Id. at 351 n. 4.

We do not at this time undertake to decide whether plaintiff’s suit vindicated the rights of other union members — a significant inquiry when we get to the question of the appropriateness of awarding attorney’s fees. At this juncture we merely note that the amount of damages awarded may have some impact on the issue of attorney’s fees.

Accordingly, the motion by the International for summary judgment on the attorney’s fees issue is held in abeyance pending the conclusion of the trial on damages.

C. LIUNA’s Motion for Leave to File an Amended Answer and for Judgment on the Pleadings

LIUNA moves for leave to file an amended answer asserting a defense of statute of limitations, and if granted, for judgment on the pleadings. The Local, individual defendants and plaintiff oppose the motion.

Plaintiff’s cause of action accrued on July 14, 1981; his complaint was filed with this Court on August 4, 1981. Although the Local and individual defendants were served promptly, the International was not served until June 1982, eleven months after the action had accrued. LIUNA contends that it did not at that time (or anytime prior to or during trial) claim that the statute of limitations barred plaintiff’s action against it because the rule in our District was that the doctrine of laches applied to Title I Labor Management Reporting and Disclosure Act (“LMRDA”) cases and because other jurisdictions borrowed state statutes of limitations, all of which set a period greater than eleven months; consequently, an affirmative defense of statute of limitations would have been futile. However, on June 8, 1983, one month after the conclusion of the trial, the Supreme Court decided Delcostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), which held that the most appropriate statute of limitations in a case involving a breach by an employer of a collective bargaining agreement and a breach by a union of its duty of fair representation was the six month period contained in section 10(b) of the NLRA. Thus, according to LIUNA, plaintiff’s claims against the International were barred by this six month statute of limitations which LIUNA could not assert until the Delcostello opinion was decided, and at a time subsequent to the trial. LIUNA also emphasizes that several courts have applied the rule in Delcostello to claims arising, like the one herein, under Title I of LMRDA. See Davis v. United Automobile Workers, 765 F.2d 1510 (11th Cir.1985); Adkins v. Electrical Workers, 769 F.2d 330, 119 L.R.R.M. 3594 (6th Cir.1985); Vallone v. Local 705, Teamsters, 755 F.2d 520, 521-22 (7th Cir.1984); Steelworkers Local 1397 v. United Steelworkers, 748 F.2d 180, 182-84 (3d Cir.1984); Linder v. Berge, 739 F.2d 686, 688-89 (1st Cir.1984); McConnell v. Teamsters Local 445, 606 F.Supp. 460 (S.D.N.Y.1985) (Weinfeld, J.); Turco v. Local Lodge 5, Boilermakers, 592 F.Supp. 1293, 1294 (E.D.N.Y.1984).

In asserting that its application is timely made, LIUNA refers to the case of Emich Motors Corp. v. General Motors Corp., 229 F.2d 714 (7th Cir.1956). In that case, plaintiff’s antitrust complaint was filed in 1941. A ten month trial between April 1947 and February 1948 resulted in a verdict for the plaintiff. On appeal, the Circuit Court reversed; the Supreme Court then reversed the Circuit, and the case was remanded for a whole new trial on liability and damages in May 1951. In December 1952 defendant was allowed leave to file an amended answer which raised for the first time the defense of statute of limitations; in March 1955 defendant’s motion for summary judgment was granted since the limitations period had expired before the action was commenced. The Seventh Circuit held that Fed.R.Civ.P. 15(a) “does not distinguish between amendments after appeal and remand and those before appeal,” 229 F.2d at 718, particularly when the basis of the defense did not become clear until judicial opinions were issued on the limitations issue in other cases decided subsequent to the original trial. In so ruling, however, the Seventh Circuit explicitly stated:

Plaintiffs also rely on Stewart v. United States, 7 Cir., 199 F.2d 517 [(1952)]. That opinion was on a second appeal. In the first appeal, 7 Cir., 186 F.2d 627, 634 [ (1951) ], this court had said: “It follows from what we have held that plaintiffs are entitled to a judgment, and all that remains is the assessment of plaintiffs’ damages. ” From this language we see that the remand there was not for a new trial but only for the assessment of damages. This court correctly held that it was then too late for the Government to inject into the case by an amended answer a new defense to the action.

(Emphasis added)

With regard to allowing leave to amend an answer, the Seventh Circuit’s distinction between a remand for a whole new trial and a remand to determine damages follows from the Supreme Court decision in Retzer v. Wood, 109 U.S. 185, 188, 3 S.Ct. 164, 166, 27 L.Ed. 900 (1883), where it was held: “It is well settled that, in the absence of a contrary rule established by statute, a defendant who desires to avail himself of a statute of limitation as a defense must raise the question either in the pleading, or on the trial, or before judgment.” (Emphasis added) “A reversal of the judgment on appeal, without specific limiting instructions to the trial court, brings the case back for trial with the issues joined and gives the parties the same rights as though the judgment had never been entered.” Comment, Civil Procedure — Amendment to Answer — Affirmative Defense Raised on Remand, 42 Iowa L.Rev. 421, 422 (1957); see also City of Columbia v. Paul N. Howard Co., 707 F.2d 338 (8th Cir.), cert. denied, 464 U.S. 893, 104 S.Ct. 238, 78 L.Ed.2d 229 (1983). In contrast, a reversal which decides the question of liability and remands only on the question of damages, as occurred herein, presents the district court with a final judgment on the liability issue. Since a final judgment has been rendered, the defense of statute of limitations can no longer be raised. See Retzer, supra. We must, therefore, deny LIUNA’s motion to amend its answer to include the defense of statute of limitations.

Our determination is bolstered by our observation that the Delcostello opinion upon which LIUNA’s application is based was decided on June 8, 1983, the day after notice of appeal was filed in the instant action. However, LIUNA did not file its brief on appeal until November 9, 1983, five months after the Delcostello decision. In its appellate brief LIUNA noted that it “was not served with the complaint until June 1982, almost one year after it was filed,” (Brief for Appellee LIUNA, at 3), but nowhere in the brief did LIUNA refer to the Delcostello opinion and why, in light of that opinion, it should now be dismissed as party. Although as a general rule, a party cannot urge a different theory of recovery on an appeal, an exception is created where the opposition has a fair opportunity to defend and cannot offer additional evidence on the new theory. Universe Tankships, Inc. v. United States, 528 F.2d 73, 76 (3d Cir.1975); see McMillan v. Marine Sulphur Shipping Corp., 607 F.2d 1034, 1038-39 n. 8 (2d Cir.1979), cert. denied, 445 U.S. 905, 100 S.Ct. 1082, 63 L.Ed.2d 321 (1980). Since LIUNA’s new theory is based on law, not fact, plaintiff clearly would have had a fair chance to oppose it on appeal and would not have been able to offer any additional evidence. In short, LIUNA had a full opportunity to raise this issue before judgment on the liability phase was rendered but did not do so. Its present application thus comes too late. See also Feldman v. Chase Manhattan Bank, N.A., 511 F.2d 468, 470 (2d Cir.1975) (where defendant failed to raise statute of limitations as a defense in the district court and the court of appeals, the defense was considered waived).

Additional support for our determination is found in Strauss v. Douglas Aircraft Co., 404 F.2d 1152 (2d Cir.1968). In that case our Circuit Court of Appeals stated:

[T]he Statute of Limitations is an affirmative or so-called “personal privilege” defense which may be waived if not promptly pleaded ... Certainty of suecess is not an essential element in determining whether to set forth the affirmative defense in a pleading. If the defense lurks in the case, vacillation can cause the other party irreparable injury.

Id. at 1155. See Evans v. Syracuse City School District, 704 F.2d 44, 47 (2d Cir.1983). In analyzing defendant’s claim in Strauss that it did not raise the limitations defense in its original answer because the law at that time did not permit that defense, the Second Circuit noted: first, that the New York Court of Appeals had indicated one and a half years before the answer was filed that the old rule would no longer be mechanically applied, id. at 1156; second, that within six months after the answer was filed the Second Circuit had expounded at length upon the implications of the New York Court of Appeals’ decision; and third, that before the answer was filed, the issue was argued before the Circuit. “Thus, [defendant] and its counsel by reason of these events and the clear indications that the law in this area was undergoing serious reappraisal, should have been well aware of the possibility (uncertain as it might have seemed to them), that a Statute of Limitations defense might be effective against [plaintiff].” Id. at 1157. See also Head v. Timken Roller Bearing Co., 486 F.2d 870, 874-75 (6th Cir.1973).

LIUNA would have us believe that the law in our Circuit was so clear cut on the issue of statute of limitations when it filed its answer (and through the time of trial) that there was no reason for it to assert that affirmative defense. We disagree. Although our Circuit had held that the National Labor Relations Act six month statute of limitations did not apply in actions against unions, it did not do so without a thorough analysis of that question. See Assad v. Mt. Sinai Hospital, 703 F.2d 36 (2d Cir), vacated, 464 U.S. 806, 104 S.Ct. 54, 78 L.Ed.2d 73 (1983); Flowers v. Local 2602 of the United Steel Workers of America, 671 F.2d 87, 90-91 (2d Cir.1982), rev’d, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). In Flowers, decided six months after the complaint in the instant action was filed and five months before LIUNA’s answer was filed, the Court held:

The question remains whether to apply the three-year statute of limitations for malpractice actions, N.Y.Civ.Prac.Law § 214(6), or the six-month limitations period of section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b) (1976). We are persuaded by Justice Stevens’ view that section 10(b) is inapplicable both because it relates only to administrative procedures established by Congress to resolve unfair labor practices ... and because it was adopted by Congress six years before the duty of fair representation was recognized. Indeed, not until Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), did the Court clearly hold the duty judicially enforceable. On the other hand, an action for breach of the union’s duty fairly to represent its members at arbitration proceedings is closely analogous to an action for attorney malpractice____ We conclude, therefore, that the three-year nonmedical malpractice statute of limitaitons applies to the employees’ action against the union for breach of its duty of fair representation. This would make the action against the union timely commenced.

Since “certainty of success is not an essential element in determining whether to set forth the affirmative defense [of statute of limitations],” Strauss, supra, at 1155, and since the Second Circuit found the issue regarding which particular statute of limitations was applicable to be worthy of analysis, we find that the defense “lurk[ed] in the case,” id. at 1155, and should have been asserted in LIUNA’s original answer or at least before the conclusion of the trial. Indeed, the limitations defense lurked enough in these types of cases that the month before the trial in the instant action was held, the Flowers case was argued before the Supreme Court which, in Delcostello, supra, reversed the determination made by our Circuit. In sum, it is our opinion that LIUNA could and should have asserted the statute of limitations defense before the judgment on liability was rendered. It is too late now to raise the defense.

As we see it, LIUNA’s motion to amend its answer must be and is denied.

D. Motion by Theodore T. Green, Esq., for Permission to Represent LIUNA

Theodore T. Green, Esq., moves for permission of the Court to represent LIUNA as counsel in the within action. This motion being unopposed, it is granted.

II. Plaintiffs Motion to Amend its Complaint

Plaintiff moves pursuant to Fed.R.Giv.P. 15(a) for an order granting leave to amend the complaint to add the following paragraph:

37-A. By reason of the wrongful discipline imposed upon him as alleged herein-above, Petramale has suffered denial of job referrals and loss of employment opportunities, with the consequent loss of earnings in an amount greater than $80,-000.

Plaintiff contends that defendants had adequate forewarning at the time of trial of plaintiff’s intention to move to amend the complaint since he specifically described in his deposition of March 16, 1982 and at trial the claims he asserts in the proposed amendment. Thus, he argues, defendants will suffer no surprise and are not prejudiced by the addition of his amendment.

Rule 15(a) is interpreted broadly, providing that leave to amend shall be freely given when justice so requires. However, “this does not mean that all amendments should be granted under all circumstances.” Sobel v. Yeshiva University, 477 F.Supp. 1161, 1168 (S.D.N.Y.1979). Leave may be denied where there is evidence of undue delay, bad faith, dilatory motives, and undue prejudice to the opposing party by virtue of allowance of the amendment. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962).

We find that plaintiff’s request has been unduly delayed. We note the strong preference of our Circuit Court of Appeals for amendments to be made in the pretrial stage: “[Ajmendments should be tendered no later than the time of pretrial, unless compelling reasons why this could not have been done are presented.” Evans, supra, 704 F.2d at 47 (1983) (quoting Nevels v. Ford Motor Co., 439 F.2d 251, 257 (5th Cir.1971). In Evans, the Court refused to allow an amendment to add an affirmative defense two years and nine months after it could have been asserted where defendant offered no compelling reasons for the delay. Similarly, in the instant case, plaintiff readily concedes that he was aware at the time of his deposition on March 16, 1982 of his purported denial of job referrals. (Affidavit of Burton H. Hall, at 2), yet advances no reasons at all to justify his failure to add this claim to his pleadings at an earlier date.

We further find that substantial prejudice would befall defendants if we allowed the amendment. It would necessitate the reopening of discovery and result in further delay in the resolution of this lawsuit. See Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 332, 91 S.Ct. 795, 803, 28 L.Ed.2d 77 (1971). Undoubtedly, evidence has disappeared and memories have faded over the past four years since this action was commenced. To allow plaintiff now to litigate matters that he “had an opportunity, but neglected, to litigate,” id. at 332, 91 S.Ct. at 803, would be an injustice to defendants.

In short, we find that the unexplained neglect of plaintiff, the prejudice and hardship that would befall the defendants, and the interests of fairness and justice compel us to deny plaintiff’s motion for leave to amend the complaint.

CONCLUSION

In accordance with the foregoing, we are constrained to, and do: grant LIUNA’s motion for partial summary judgment finding that it cannot be liable for monetary damages; hold LIUNA’s motion for partial summary judgment on the attorney’s fees issue in abeyance pending the outcome of the trial on damages; deny LIUNA’s motion for leave to amend its answer; grant LIUNA’s motion that it be represented by Theodore T. Green, Esq.; and deny plaintiff’s motion for leave to amend the complaint.

SO ORDERED.


source: Caselaw Access Project

author: TODD, District Judge.

license: Public Domain

text:
    Prentiss L. HOUSTON, Petitioner, v. Larry LACK, Warden, Respondent.
    No. 85-1086.
    United States District Court, W.D. Tennessee, E.D.
    Jan. 6, 1986.

      Prentiss L. Houston, pro se.
    Gordon W. Smith, Asst. Atty. Gen., Nashville, Tenn., for respondent.
   ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS

TODD, District Judge.

This petition for writ of habeas corpus was filed on May 15, 1985, by petitioner Prentiss L. Houston, who alleges that his Tennessee state court conviction is unconstitutional because it is based upon an involuntary guilty plea. Petitioner alleged that the plea was not voluntarily entered because (1) the state court judge failed to fully and adequately inform him of the nature of the charge against him and the consequences of a guilty plea and (2) his court appointed counsel did not render effective assistance, thereby depriving him of his due process rights. For the reasons set forth below, both of these contentions are found to be without merit and the petition is dismissed.

I. PROCEDURAL BACKGROUND AND FACTS.

After filing his answer to the petition, respondent was directed by this Court to file a copy of the transcript of petitioner’s state court proceedings. The transcript indicates that petitioner brought a state habeas corpus petition following his conviction, alleging the same grounds as now presented. A full evidentiary hearing was conducted by the state court on that petition. Petitioner was represented at that hearing by different counsel than in his trial court proceedings and both petitioner and his court-appointed counsel from the trial court proceedings testified. Based upon the findings of fact at the hearing and the applicable law, petitioner’s state habeas corpus petition was denied.

Although this Court is not bound by the state court’s findings of fact, such findings are entitled to a presumption of correctness. Martin v. Foltz, 773 F.2d 711, 716 (6th Cir.1985). Petitioner has not alleged that those findings are incorrect and, in fact, presents only questions of law to this Court in his petition. Furthermore, this Court finds that another evidentiary hearing would not shed any additional light on petitioner’s claims and is not required by 28 U.S.C. § 2254(d). Accordingly, a ruling on this petition will be made on the basis of the pleadings of the parties and the state court transcript. See Rule 8(a), Rules Governing § 2254 Proceedings, 28 U.S.C. foil. § 2254.

According to his own statement of the facts, petitioner and a co-defendant were indicted for first degree murder by the Obion County, Tennessee Grand Jury on October 11, 1982. Prior to the indictment, Messrs. Thomas L. Rogers and James M. Glasgow, Jr. were appointed to represent the two defendants. Initially, the attorneys planned to jointly represent both defendants, with Mr. Rogers conducting the bulk of the factual investigation and Mr. Glasgow researching the legal issues presented. Following the indictments, however, the trial court appointed Mr. Glasgow to represent petitioner and Mr. Rogers to represent his co-defendant. Although each defendant had separate counsel at that time, the record indicates that the two attorneys continued to work together, sharing both factual and legal information regarding the defense of their clients. Pre-trial motions for discovery and for psychiatric evaluation were made on behalf of petitioner by Mr. Glasgow. Mr. Rogers made motions for a change of venue, in limine, to exclude evidence, for discovery, for a non-jury trial, and to set aside the indictment against his client.

Sometime following petitioner’s indictment and before the entry of his guilty plea, the state prosecutor communicated a plea bargain offer to the attorneys, in which the state would agree to allow the two defendants to plead guilty to second degree murder, as Range II offenders under Tennessee law, with 50 year sentences. Petitioner alleged that at no time during discussions of that offer did Mr. Glasgow inform him of the consequences of entering the guilty plea, specifically that he would be pleading guilty to a Class X felony and would be subject to the requirements for Class X felons. Furthermore, petitioner alleged that on November 15, 1982, the date he entered his guilty plea, the trial court judge also failed to fully and adequately inform him of the nature of the plea and its attendant consequences. According to petitioner, it was not until he was incarcerated at the Tennessee State Penitentiary that he learned that, as a Class X felon, he was ineligible for work release, trusteeship status, furloughs, educational or recreational release, credit for good behavior, or any other program that would operate to reduce his sentence or place him in supervised or unsupervised release programs in the community.

The gravamen of petitioner’s claim that his plea was not voluntarily entered is that he would not have entered the plea if he had known of the attendant consequences of being convicted of a Class X felony under Tennessee law. In his petition, he charged his court-appointed attorney and the trial judge with fault for failing to fully apprise him of those consequences. In its opinion denying petitioner state habeas corpus relief, the state court summarily dismissed this claim, stating that “A defendant does not have a constitutional right to have the effect of a sentence under the Class X felony statute explained to him.” Houston v. State, No. 4556, slip op. at 8 (Cir.Ct. Obion Co. Tenn., Sept. 27, 1983) (citing State v. Wallace, 604 S.W.2d 890 (Tenn.Crim.App.1980); State v. Hayes, No. 909 (Tenn.Crim.App. Sept. 1, 1983, Knoxville); State v. Minor, No. 123 (Tenn.Crim. App. Dec. 17, 1981, Jackson). In this petition, the only attempt by petitioner to distinguish the cases relied upon by the state court is his allegation that, in his case, neither the trial judge nor his appointed counsel understood the consequences of a Class X conviction.

II. GROUNDS FOR HABEAS CORPUS RELIEF

A. Ineffective Assistance of Counsel

As noted above, petitioner alleged that his conviction is unconstitutional because his guilty plea was not voluntary and because his court-appointed attorney rendered ineffective assistance. For the purposes of discussion, the claim of ineffective assistance of counsel will be addressed first.

Recently, the Supreme Court was presented with a case similar to that now before this Court. In Hill v. Lockhart, — U.S. -, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the voluntariness of a guilty plea was at issue in the context of a claim of ineffective assistance of counsel. The alleged ineffectiveness of the petitioner’s counsel in that case arose out of an attorney’s erroneous advice to the petitioner, William Lloyd Hill, regarding the time he would have to serve under a plea bargain before being eligible for parole. According to Hill, his attorney had informed him that if he pleaded guilty he would have to serve one-third of his prison sentence before being considered for parole. However, because Hill had a prior conviction in another state, he was considered a second offender under Arkansas law and was thus required to serve one-half of his sentence before becoming eligible for parole. Because he had entered his guilty plea upon the mistaken belief that he would be eligible for parole after serving one-third of his sentence, Hill alleged that his plea was not voluntarily entered.

The trial court’s denial of Hill’s petition for habeas corpus relief was affirmed by a divided panel of the Eighth Circuit Court of Appeals. 731 F.2d 568 (1984). In an en banc rehearing, an equally divided court affirmed that decision. 764 F.2d 1279 (1984). Hill’s petition for a writ of certiorari was then granted by the Supreme Court. — U.S. -, 105 S.Ct. 1745, 84 L.Ed.2d 811 (1985).

The Supreme Court began its analysis of Hill’s challenge to the voluntariness of his guilty plea by noting that the “long standing test for determining the validity of a guilty plea is ‘whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.’ ” 106 S.Ct. at 369 (citing North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970); Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969); Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473 (1962)). Although the issue was not raised by Hill, the Court stated that neither the Constitution nor Rule 11 of the Federal Rules of Criminal Procedure required that the state give a defendant information about parole eligibility in order for a guilty plea to be voluntary. 106 S.Ct. at 369.

With regard to the voluntariness of a guilty plea and a claim of ineffective counsel, the Court stated that the two-part standard for claims of ineffective assistance of counsel adopted in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), was also applicable to challenges to guilty pleas. 106 S.Ct. at 370. That test requires that the petitioner show (1) that his attorney’s “representation fell below an objective standard of reasonableness” and (2) “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 369, quoting Strickland, 466 U.S. at 687-88, 694, 104 S.Ct. at 2065, 2068 (1984). The basis for the second part of that test, as noted by the Hill court, is that the mere existence of error on the part of a defendant’s attorney does not justify setting aside a criminal judgment unless the judgment was due to the error. Id., 106 S.Ct. at 370, quoting Strickland, 466 U.S. at 691, 104 S.Ct. at 2067.

Applying the Strickland test to the case before it, the Hill court found that the petitioner had failed to satisfy the second part of the test. That part requires that the criminal defendant show that his attorney’s erroneous advice “prejudiced” him. To show such “prejudice,” the defendant “must show that there is a reasonable probility that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 106 S.Ct. at 370. Because he failed to allege that he would not have pleaded guilty but for his attorney’s erroneous advice, the Court found that Hill had not shown such prejudice. 106 S.Ct. at 371. Without such an allegation, the second part of the Strickland test was not met and it was not error for the trial court to dismiss the petition without an evidentiary hearing. Id.

Since it was able to dispose of the claim of ineffective assistance of counsel before it for failure to meet the second part of the Strickland test, the Hill court did not determine whether the attorney’s erroneous advice concerning parole eligibility was constitutionally ineffective assistance. 106 S.Ct. at 371. Nevertheless, in addressing the claims presented in this petition, this Court is guided by Hill and its holding that the Strickland test applies to claims of ineffective assistance of counsel in the context of a guilty plea.

Petitioner in this action has alleged that his court-appointed attorney was ineffective because he failed to inform petitioner of all consequences of a Class X felony conviction. No reported cases have been found holding that failure to inform a defendant of the collateral consequences of a Class X felony conviction constitutes ineffective assistance of counsel. This Court is aware, however, of at least four unreported opinions of the Tennessee Court of Criminal Apeals holding that an attorney’s failure to explain the effects of a Class X felony conviction to a defendant does not constitute ineffective assistance of counsel. See State v. Reed, No. 85 — 127—III (Tenn. Crim.App. Nov. 8, 1985, Nashville); Pickett v. State, No. 119 (Tenn.Crim.App. Sept. 6, 1984, Jackson); State v. Hayes, supra; State v. Minor, supra. Because these opinions contain only conclusory statements on this issue, further analysis of petitioner’s claim is required.

Without controlling precedent to rely upon, determination of this claim may be made only be application of Strickland’s general test. According to Strickland, “the proper standard for attorney performance is that of reasonably effective assistance.” 466 U.S. at 687, 104 S.Ct. at 2064. See also Beasley v. United States, 491 F.2d 687, 696 (6th Cir.1974). The first prong of the Strickland test, as discussed above, addresses the attorney’s performance and requires that the attorney’s representation fail to meet “an objective standard of reasonableness.” 466 U.S. at 687-88, 104 S.Ct. at 2065. Although “more specific guidelines” defining that standard were said by the Strickland court to be inappropriate, the Court did set forth “certain basic duties” involved in representing a criminal defendant. 466 U.S. at 687, 104 S.Ct. at 2065. According to the Court, those duties include duties “of loyalty, ... to advocate the defendant’s cause, ... to consult with the defendant on important decisions, ... to keep the defendant informed of important developments, ... [and] to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process.” Id. (citations omitted). Because the list was not intended to be exhaustive or to be used as a “checklist for judicial evaluation,” claims of ineffective assistance of counsel alleging the breach of some duty not listed by the Court require resort to “prevailing norms of practice,” such as standards promulgated by professional organizations. Id.

Before examining the claim presented by this petitioner, it is noted that review of an attorney’s performance under Strickland must be “highly deferential” and include “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” 466 U.S. at 687, 688, 104 S.Ct. at 2065, 2066. It is only when the reviewing court, considering all the circumstances, finds that the acts or omissions complained of were outside that range that a claim of ineffective assistance of counsel has been shown and habeas corpus relief is due. 466 U.S. at 688, 104 S.Ct. at 2066.

Placing these abstract principles into the setting of a guilty plea, it appears that “reasonable professional assistance” requires that an attorney insure that his client “understood his rights, the nature of the charges and the possible sentence if convicted.” Jones v. Parke, 734 F.2d 1142, 1146 (6th Cir.1984). Although the petitioner herein may assert that his ignorance of a Class X conviction’s collateral consequences vitiates any finding that he understood “the possible sentence” his plea would entail, this Court finds that knowledge of all consequences of a possible sentence is not required in order to understand that sentence. Petitioner was informed during the plea colloquy that the state intended to seek either life incarceration or the death penalty if his case went to trial and understood that he was pleading to a lesser charge with a sentence of fifty years. Furthermore, it was made clear at the plea proceedings that the petitioner would have to serve at least twenty years of his sentence. With knowledge and understanding of those terms of the plea, petitioner entered his plea. Because his client was aware of the possible sentence he faced, it cannot be said that the attorney’s failure to inform petitioner of every consequence of that sentence constituted ineffective assistance of counsel.

Other courts that have reviewed claims of ineffective assistance of counsel arising out of advice given before a guilty plea have reached similar conclusions. For example, it has been held that failure to inform a defendant of the date on which he would become eligible for parole is not ineffective assistance of counsel. See e.g., Frank v. United States, 515 F.Supp. 703, 707 (E.D.Pa.1981). See also United States v. French, 719 F.2d 387 (11th Cir.), cert. denied, 466 U.S. 960, 104 S.Ct. 2174, 80 L.Ed.2d 557 (1983) (failure to inform of “binding” plea agreement rule); United States v. Santelises, 509 F.2d 703 (2d Cir.1975) (failure to inform of possible deportation). The Santelises case is especially persuasive as it is difficult to imagine how a failure to inform a defendant that he will not be eligible for work release or similar programs can constitute ineffective assistance of counsel when the failure to inform the defendant in Santelises that he could be deported as a result of his conviction was found not to constitute ineffective assistance of counsel.

In any case, the alleged failure to inform a defendant of a consequence of his guilty plea must be found to constitute representation below an “objective reasonable standard.” As noted above, the Tennessee Court of Criminal Appeals has specifically found that failure to inform a defendant of the consequences of a Class X conviction is not ineffective assistance of counsel. Furthermore, it is evident from a reading of Tennessee Rules of Criminal Procedure 11(c) and the committee comments to the rule that a defendant need not be informed of all collateral consequences of his plea. This Court finds, therefore, that the mere failure of an attorney to inform a defendant of the collateral consequences of a Class X felony conviction does not constitute ineffective assistance of counsel. Because petitioner has not alleged that his attorney failed to inform him of the direct consequences of his plea or gave him grossly incorrect advice about the collateral consequences that he relied upon in making his plea, it cannot be said that any act or omission of his attorney constituted such ineffective assistance of counsel as to render his guilty plea unconstitutional.

In addition to alleging that his counsel rendered ineffective assistance by failing to advise him of all the consequences of a Class X felony conviction, petitioner also alleged that his court-appointed attorney’s representation was ineffective because he (1) failed to interview all significant witnesses, (2) failed to request a severance, (3) filed only two motions, and (4) coerced a guilty plea by telling petitioner that the evidence of his guilt was overwhelming. The standard by which this Court examines these claims is the same as that just discussed, whether the representation fell below an “objective standard of reasonableness.”

Petitioner alleged that his attorney failed to interview all significant witnesses, yet testified during the plea colloquy that the attorney had talked to everyone that petitioner had asked him to. Transcript (T) 84. In fact, petitioner admitted during his state habeas corpus proceedings that he had only given the attorney the name of one potential witness. Post-conviction transcript (PT) at 106. In contrast, petitioner’s attorney testified that he went to the scene of the crime on two occasions and spoke with eight to ten potential witnesses. PT 67-68. This testimony was uncontroverted and can only lead to a finding that Mr. Glasgow made reasonable efforts to interview potential witnesses. It is especially significant that petitioner could not name any additional witnesses at his state post-conviction hearing. PT 92. This Court is unable to find that the attorney’s efforts at interviewing potential witnesses were not objectively reasonable given petitioner's inability to offer proof that any significant witnesses existed.

Petitioner also alleged that the failure to request a severance amounted to ineffective assistance of counsel. Although a severance may at times be necessary in order to avoid confusing a jury and thereby prevent multiple defendants from obtaining a fair trial, the failure to move for a severance in this case cannot be said to have had any effect since the proceedings had not yet reached a stage in which a jury was involved. Furthermore, in the event petitioner had pleaded not guilty, thereby making a jury trial necessary, Mr. Glasgow could have then moved for a severance prior to the trial. His failure to so move prior to the entry of petitioner’s guilty plea can thus not be said to fall below an objective standard of reasonableness.

Mr. Glasgow’s filing of only two pre-trial motions, is said by petitioner to constitute ineffective assistance of counsel when compared to the fact that the attorney for petitioner’s co-defendant filed seven motions. Mr. Glasgow explained this difference, however, by noting that if any of the additional motions filed on behalf of petitioner’s co-defendant were granted, he would then have made a similar motion. PT 78. Such a strategic move by petitioner’s attorney does not appear unreasonable and, in fact, appears to have been a calculated move by Mr. Glasgow to conserve the efforts of all parties involved without resulting in prejudice to his client. Accordingly, this Court finds that this strategic decision by petitioner’s counsel does not constitute grounds to reverse the conviction.

Finally, petitioner alleged that his attorney coerced him into pleading guilty by telling him that the evidence against him was overwhelming. The fact that his attorney so advised petitioner cannot be found to give rise to a finding that the petitioner was deprived of the effective assistance of counsel given the investigation made by Mr. Glasgow and the attorney for petitioner’s co-defendant. Again, this Court notes that petitioner provided his attorney with the name of only one witness. After two trips to the scene of the crime and interviews with eight to ten potential witnesses, Mr. Glasgow’s belief that it would be in petitioner’s best interests to accept a plea bargain does not appear to be unreasonable. Even if his attitude was perceived by petitioner as being pessimistic, pessimism alone does not constitute ineffective assistance of counsel. See United States v. Rogers, 769 F.2d 1418, 1424 (9th Cir.1985). Accordingly, this Court finds no evidence to support petitioner’s allegation that his guilty plea was coerced by his attorney’s advice that the evidence against him was overwhelming.

B. Voluntariness of the Guilty Plea

As noted above, petitioner also alleged that his guilty plea was involuntarily entered because the trial judge failed to inform him of certain consequences of his plea. Rule 11(c) of the Tennessee Rules of Criminal Procedure sets forth the advice that a criminal defendant in Tennessee must be given before a court may accept a guilty plea. According to the rule, the defendant must be advised of and understand (1) the nature of the charge to which he is pleading guilty to, the mandatory minimum punishment, and the possible maximum punishment; (2) his right to an attorney; (3) his right to a jury trial; (4) that he waives his right to a jury trial by pleading guilty; and (5) that any answers he gives during the plea colloquy may later be used against him in a prosecution for perjury or making a false statement. Although it would be desirable for courts to inform criminal defendants of every possible consequence of their pleas, Rule 11 requires only that defendants be made aware of those consequences listed in the Rule. See Fed.R.Crim.P. 11 advisory committee note. The consequences listed in the Rule are generally referred to as the “direct” consequences of a plea, in contrast to “collateral” consequences, such as parole eligibility dates or possible deportation, of which a defendant need not be informed for his plea to be voluntary. See 1 C. Wright, Federal Practice and Procedure § 173 (1982).

The dicta in Hill that a state is not required to inform a criminal defendant of the date on which he will be eligible for parole is consistent with the holdings of the Sixth Circuit and other courts of appeal that a defendant need not be told of the collateral consequences of his plea in order for the plea to be voluntary. See, e.g., Berry v. Mintzes, 726 F.2d 1142, 1149-50 (6th Cir.), cert. denied, — U.S. -, 104 S.Ct. 3520, 82 L.Ed.2d 828 (1984); Brown v. Perini, 718 F.2d 784, 788 (6th Cir.1983). See also Downs-Morgan v. United States, 765 F.2d 1534, 1537 (11th Cir.1985); United States v. Gavilan, 761 F.2d 226, 227-28 (5th Cir.1985); United States v. Russell, 686 F.2d 35, 38-39 (D.C.Cir.1982); United States v. Degand, 614 F.2d 176, 177 (8th Cir.1980); Sanchez v. United States, 572 F.2d 210, 211 (9th Cir.1977). The requirements of Rule 11(c) are consistent with these opinions.

Although the trial judge in this case did not inform petitioner that his conviction as a Class X felon would result in his being ineligible for the various programs that could operate to shorten his sentence, this Court finds that such effects of a Class X felony conviction are collateral consequences of a guilty plea. Rule 11 and the cases cited above make it clear that the trial judge was not obligated to inform petitioner of such consequences. Accordingly, the guilty plea must be upheld unless the trial judge failed to adequately inform petitioner of the direct consequences enumerated in Rule 11. The following excerpts from the plea colloquy reveal that petitioner was informed of the direct consequences of his plea and indicated that he understood those consequences:

(questioning of petitioner by his court-appointed attorney)
Q ... Have I (attorney Glasgow) explained to you what the penalty is that the State is seeking in this case, that is the death penalty for first degree murder?
A Yes.
Q Have I explained to you that you’ve got a right to a trial by jury, and if you don’t like what the jury does that you’ve got a right to appeal that? Do you understand that?
A Yes.
Q All right. You also understand that by entering this guilty plea that you will not have the right to appeal this case. Do you understand that?
A Yes.
(questioning by trial judge)
Q ... Mr. Glasgow has, as you’ve just indicated, I believe, he has either read the indictment to you, or he has explained to you what it is that you are accused of in the indictment, what the indictment says that you are guilty of, so that you understand what it is that you are accused of here.
Is that correct?
A Yes, sir.
Q And he has explained to you your rights. You have just indicated that, I believe, but he has explained to you that you have the right to enter a plea of not guilty here if you are not guilty; you have the right to have a trial by jury, if you chose [sic] to do so, and if you had a jury trial then you could have any witnesses subpoenaed and brought in to testify on your behalf; you can have any other evidence brought in and introduced on your behalf, and then if the jury found you — then the jury would determine whether or not you are guilty or innocent, and if the jury found you guilty of first degree murder, then the jury would fix your punishment according to law, either at life in the penitentiary or by death by electrocution.
Do you understand that?
A Yes, sir.
Q I am advised that you are going to enter a plea of guilty to murder in the second degree here. You have not been promised anything, or you have not been threatened in any way in order to get you to enter a plea of guilty, have you?
A No, sir.
Q This plea of guilty is being entered of your own free will. Is that correct?
A Yes, sir.
Q And because you are saying to me that you are guilty of this offense?
A Yes, sir.

Transcript (T) at 83-87. In light of the absence of any evidence that petitioner was not informed of the direct consequences of his guilty plea or that he did not understand those consequences, this Court finds that his guilty plea was voluntarily made. The portion of his petition that alleges that his guilty plea was involuntary because the trial court failed to inform petitioner of all of the consequences of his plea is, therefore, without merit.

SUMMARY

In summary, this Court makes the following findings:

1. Under the two-part Strickland test for evaluating claims of ineffective assistance of counsel, petitioner has failed to show that his attorney’s failure to advise him of certain collateral consequences of a- Class X felony conviction constituted assistance of counsel that was not objectively reasonable.
2. Furthermore, it does not appear from the record in this case that the attorney’s alleged failure to interview all significant witnesses, failure to request a severance, filing of only two pre-trial motions, and advice to petitioner that the evidence against him was overwhelming amounted to representation of petitioner that was below an objective standard of reasonableness.
3. Finally, neither the Constitution nor Tennessee law require a trial court to inform a criminal defendant of the consequences of being convicted as a Class X felon under Tennessee law.

As a result of these findings, this petition for habeas corpus does not state a constitutional claim for which federal relief is available and is, therefore, dismissed.

IT IS SO ORDERED.

      . See also Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984) (noting that state court findings of fact are entitled to deference but that a claim of ineffectiveness of counsel presents mixed questions of law and fact).

      . See Tenn.Code Ann. § 39-1-703 (1982).

      . However, as compared to a failure to inform (as in this petition), erroneous information may at times give rise to a finding of ineffective assistance of counsel if the defendant relied on the misinformation when entering his plea. See Strader v. Garrison, 611 F.2d 61, 65 (4th Cir.1979) ("grossly misinformed”).

      . Compare Strader, supra n. 3.

      . This is true even if the motion date, as set by the trial judge pursuant to Rule 12(c) of the Tennessee Rules of Criminal Procedure has passed, since a continuing duty exists to grant a severance at any stage of the trial if it appears to the trial court that the defendant would be prejudiced by a joint trial. See United States v. Morgan, 394 F.2d 973 (6th Cir.), cert. denied, 393 U.S. 942, 89 S.Ct. 310, 21 L.Ed.2d 279 (1968).

      . Tennessee case law also requires that a defendant be informed that "a different or additional punishment may result by reason of his prior convictions or other factors which may be established in the present action after entry of his plea.” Tenn.R.Crim.P. 11, Committee Comments (quoting Mackey v. State, 553 S.W.2d 337, 341 (Tenn.1977)).

      . According to the Committee Comments, Rule 11 of the Tennessee Rules of Criminal Procedure is "substantially the same” as Rule 11 of the Federal Rules of Criminal Procedure. Tenn. R.Crim.P. 11 Committee Comments. As such, the federal rule’s advisory committee note and cases interpreting the federal rule, although not binding, are persuasive.


author: CARL O. BUE, Jr., District Judge.

text:
    KUEHNE & NAGEL (AG & CO) v. GEOSOURCE, INC.
    C.A. No. H-83-5913.
    United States District Court, S.D. Texas, Houston Division.
    Jan. 6, 1986.

      James J. Sentner, Jr., Haight, Gardner, Poor & Havens, Houston, Tex., for plaintiff.
    G. Wesley Urquhart, Vinson & Elkins, Houston, Tex., for defendant.
   ORDER

CARL O. BUE, Jr., District Judge.

On September 13, 1985 the Court deferred defendant’s motion to dismiss, and granted plaintiff’s motion to amend complaint wherein plaintiff invoked admiralty jurisdiction. Thereafter, pursuant to the September 13 Order, defendant re-urged its motion to dismiss. After prudent consideration, the memoranda of the parties, as well as the facts and circumstances surrounding this matter, the Court is of the opinion that defendant’s motion should be denied for the reasons discussed below.

Facts and Argument

Plaintiff, a German corporation, filed suit against defendant, a Delaware corporation with its principal place of business in Texas, claiming that defendant, as an alter ego of Ucamar Shipping and Transportation (Cayman) Ltd., (hereinafter Ucamar), a Cayman Islands corporation, was liable for an alleged breach of an ocean contract of affreightment by Ucamar.

Defendant argues that this Court lacks jurisdiction because no diversity exists, and/or that neither the tort nor contract claim urged by plaintiff falls within this Court’s admiralty jurisdiction.

Diversity Jurisdiction

For jurisdiction to be bestowed under 28 U.S.C. § 1332, diversity of citizenship must be perfected between all plaintiffs and defendants. Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 167, 2 L.Ed. 435 (1806). Moreover, a corporation is a citizen of the foreign country wherein it was incorporated for purposes of diversity jurisdiction. National Steamship Co. v. Tugman, 106 U.S. 118, 1 S.Ct. 58, 27 L.Ed. 87 (1882).

At the outset defendant argues, in support of its claim that no diversity jurisdiction exists, that this Court should follow the teachings of Panalpina Welttransport, G.M.B.H. v. Geosource, Inc., 764 F.2d 352 (5th Cir.1985). In Panalpina, the Fifth Circuit affirmed Judge McDonald’s dismissal for lack of diversity jurisdiction in a case involving Geosource, Inc. and Ucamar Shipping Co., (Cayman), Ltd. as defendants. The Court reasoned that Ucamar's place of incorporation (Cayman Islands) could not be ignored as suggested by the plaintiffs. As a result, both plaintiffs and one defendant were alien corporations, thereby destroying diversity jurisdiction.

Applying the law to the facts in the instant suit, plaintiff is precluded from bringing the suit on the basis of diversity jurisdiction. The plaintiff in the present case has sued Geosouree, Inc., (the parent corporation) based on an alter ego theory, complaining of acts of one of its subsidiaries, Ucamar. Although the plaintiff has not brought this suit against Ucamar, nevertheless, "... the alter ego doctrine would attribute the subsidiary’s place of incorporation to the parent even if such resulted in destroying complete diversity.” Panalpina, 764 F.2d at 355, citing Freeman v. Northwest Acceptance Corp., 754 F.2d 553 (5th Cir.1985). In effect, an alien corporation is suing an alien corporation. Therefore, diversity jurisdiction does not exist.

Admiralty Jurisdiction

A. Contract Claim

Defendant argues that plaintiff’s contract claims are mixed, and, as a result, are not divisible. Consequently, admiralty jurisdiction does not exist. Plaintiff argues that this Court should apply its admiralty jurisdiction because the cause of action arose as a result of a breach of the maritime portion of the mixed contract. Further, plaintiff argues that the overland transportation aspect of the contract was merely incidental.

In order for admiralty jurisdiction to extend to contracts, the general rule is that the agreement must be wholly maritime. The ECLIPSE, 135 U.S. 599, 10 S.Ct. 873, 34 L.Ed. 269 (1890). See generally 1 Benedict on Admiralty § 183, at 1-6 (1981). If a contract is mixed, however, maritime jurisdiction may nonetheless attach if the non-maritime elements outlined in the agreement are not substantial (or are incidental) to the maritime elements, or if they are separable from the maritime elements. Flota Maritima Browning de Cuba v. Snobl, 363 F.2d 733, 735 (4th Cir.), cert. denied, 385 U.S. 837, 87 S.Ct. 82, 17 L.Ed.2d 71 (1966). In other words, the Court must determine whether or not the non-maritime elements of the contract are substantial and not merely incidental to the maritime elements, or if the maritime elements are subject to separate adjudication. As stated in Eastern Massachusetts Street Railway v. Transmarine Corp., 42 F.2d 58, 63-64 (1st Cir.), cert. denied, 282 U.S. 883, 51 S.Ct. 86, 75 L.Ed. 779 (1930):

it is undoubtedly true that, where an instrument embodies a contract containing provisions, some of which are maritime and some nonmaritime, which are so interrelated as to be indivisible and to render a separate adjustment of those that are maritime impracticable, admiralty will not take jurisdiction. But where the respective provisions of the contract are divisible and the maritime obligations may be separately adjudicated, admiralty may take jurisdiction and enforce them____ The mere fact that the contract covers a subject-matter of both kinds is not therefore decisive; that would make the mere form control. The substantial question is whether the maritime obligations can be separately enforced without prejudice to the rest.

(quoting Compagnie Francaise de Navigation a Vapeur v. Bonnasse, 19 F.2d 777, 779 (2d Cir.), cert. denied, 275 U.S. 551, 48 S.Ct. 114, 72 L.Ed. 421 (1927)). See Natasha, Inc. v. Evita Marine Charters, Inc., 763 F.2d 468 (1st Cir.1985); Jack Neilson, Inc. v. Tug Peggy, 428 F.2d 54 (5th Cir.1970), cert. denied, 401 U.S. 955, 91 S.Ct. 973, 28 L.Ed.2d 238 (1971). However, “[i]t is fundamental that the mere inclusion of maritime obligation in a mixed contract does not, without more, bring nonmaritime obligations within the pale of admiralty law.” Laredo Offshore Constructors, Inc. v. Hunt Oil Co., 754 F.2d 1223, 1231 (5th Cir.1985). In essence, in determining whether or not admiralty jurisdiction is applicable to the contract in this suit, the Court must look to the characteristics of the contract; that is, to the nature and subject matter of the contract. New Jersey Steam Navigation Co. v. Merchants’ Bank, 47 U.S. 343 (1848).

1. Substantial or incidental non-maritime elements

The contract at hand involved an intermodal transportation of goods on sea and land. Specifically, the bills of lading called for the transportation by sea of car-gos consisting of steel plate and polyvinlychloride from Belgium to Turkey. Thereafter, the cargos were to be transported by land to cities in Iran. Defendant asserts, and the plaintiff does not dispute, that the overland journey would range from 800-1000 miles. See Alaska Barge and Transport, Inc. v. United States, 179 Ct.Cl. 216, 373 F.2d 967 (1967) (wherein the court concluded that overland transportation of .3 miles to 6.1 miles was substantial). Accordingly, after examining the provisions of the entire contract the Court determines that the non-maritime aspects to the contract are substantial and not incidental.

2. Severability

As stated earlier, if the maritime elements contained in the “mixed” contract are subject to separate adjudication, then admiralty jurisdiction can attach to that extent. Bonnasse, 19 F.2d at 779; Eastern Massachusetts Street Railway, 42 F.2d 58 (1st Cir.1930). However, in this case, the Court cannot sever the maritime from non-maritime claims. This assessment is based on the fact that each bill of lading contains a fixed, single freight rate for sea carriage, as well as overland transportation. Since there was no attempt to itemize the maritime and non-maritime services separately, the Court cannot distinguish between the two sections. See Evita Marine Charters, 763 F.2d at 471, citing, Outbound Maritime Corp. v. P.T. Indonesian Consortium, 582 F.Supp. 1136, 1142 (D.Md.1984); Alaska Barge, 373 F.2d at 972.

Accordingly, the Court is of the opinion that since the non-maritime elements are substantial, and since the maritime elements are not subject to separate adjudication, the Court cannot assert its admiralty jurisdiction based on a maritime contract theory.

B. Tort Claim

Plaintiff contends that defendant made certain misrepresentations wherein it would provide financial assistance, expertise, and personnel to Ucamar. These misrepresentations were made through advertisements and press releases, as well as during seminars which occurred in Hamburg, Germany in 1982. See Second Amended Complaint at 6-7. Plaintiff argues that admiralty jurisdiction should apply, stating that as a result of the fraudulent misrepresentations plaintiff entered into contracts of affreightment with defendant. Defendant asserts that maritime jurisdiction should not apply since the requisite tests of situs and nexus have not been met.

According to the Supreme Court’s rulings in Executive Jet Aviation, Inc. v. City of Cleveland, Ohio, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972) and Foremost Insurance Co. v. Richardson, 457 U.S. 668, 102 S.Ct. 2654, 73 L.Ed.2d 300 (1982), this Court’s admiralty jurisdiction will apply in tort cases if the alleged wrong has a maritime locality and bears a significant relationship to traditional maritime activity. See Casaceli v. Martech International, Inc., 774 F.2d 1322 (5th Cir.1985); Smith v. Pan Air Corp., 684 F.2d 1102, 1108 (5th Cir.1982); Sohyde Drilling & Marine Co. v. Coastal Gas Producing Co., 644 F.2d 1132, 1135 (5th Cir.), cert. denied, sub nom Valero Energy Corp. v. Sohyde Drilling & Wakover, Inc. 454 U.S. 1081, 102 S.Ct. 635, 70 L.Ed.2d 615 (1981).

1. Locality

In analyzing the first prong of the Executive Jet test, the Court must look to “where the alleged [tort] took effect,” rather than where the allegedly tortious acts or omissions occurred. Executive Jet, 409 U.S. at 266, 93 S.Ct. at 503. The Fifth Circuit has applied this analysis to products liability cases, see Jig The Third Corp. v. Puritan Marine Insurance Underwriters Corp., 519 F.2d 171 (5th Cir.1975), cert. denied, 424 U.S. 954, 96 S.Ct. 1429, 47 L.Ed.2d 360 (1976); Watz v. Zapata Off-Shore Co., 431 F.2d 100 (5th Cir.1970), as well as asbestos cases. See Woessner v. Johns-Manville Sales Corp., 757 F.2d 634 (5th Cir.1985); Harville v. Johns-Manville Products Corp., 731 F.2d 775 (11th Cir.1984). See also Archawski v. Hanioti, 350 U.S. 532, 76 S.Ct. 617, 100 L.Ed. 676 (1956); Pino v. Protection Maritime Insurance Co., Ltd., 599 F.2d 10 (1st Cir.1979) cert. denied, 444 U.S. 900, 100 S.Ct. 210, 62 L.Ed.2d 136 (1979); Carroll v. Protection Maritime Insurance Co., Ltd., 512 F.2d 4 (1st Cir.1975) (wherein the First Circuit Court held that an action brought by a seaman and commercial fisherman against marine protection and indemnity insurers claiming intentional interference with plaintiffs’ maritime employment was so interwoven with a maritime contractual relationship as to fall within admiralty jurisdiction); Orient Mid-East Lives, Inc. v. Albert E. Bowen, Inc., 255 F.Supp. 627 (S.D.N.Y. 1966) (wherein the Court held that inducement of a breach of a maritime contract was a maritime tort.) Compare State of Louisiana ex rel. Guste v. M/V TEST-BANK, 752 F.2d 1019 (5th Cir.1985) (en banc), petition for cert. filed, 53 U.S.L.W. 2412 (U.S. February 26, 1985, No. 84-1808) (wherein the Court declined to abort the physical damage requirement for recovery of economic loss due to an unintentional tort).

In the instant controversy, the alleged misrepresentations made by the defendant caused the plaintiff to enter into the “mixed” contract which was allegedly breached. As a result, the cargo remained on board the vessels awaiting discharge. Although the alleged misrepresentation occurred on land, the “effect” of these misrepresentations was manifested at sea. Accordingly, consistent with the rationale of the authorities heretofore cited, the Court determines that plaintiff has met the first prong of the jurisdictional test for a maritime tort.

2. Significant Relationship

In analyzing whether the plaintiff’s claim bears a significant relationship to traditional maritime activity, the Fifth Circuit has outlined four factors to be considered. Kelly v. Smith, 485 F.2d 520, 525 (5th Cir.1973), cert. denied sub nom Chicot Land Co. v. Kelly, 416 U.S. 969, 94 S.Ct. 1991, 40 L.Ed.2d 558 (1974). Those factors are: (a) the functions and roles of the parties; (b) the types of vehicles and instrumentalities involved; (c) the causation and type of injury; and (d) the traditional concepts of the role of admiralty law — that is, “admiralty’s preeminent interest in protecting navigation on major interstate waterways ...” Harville, 731 F.2d at 783, citing Kelly v. Smith, 485 F.2d at 526.

(a) Function and role of the parties

In determining this factor, the Court must look to maritime functions of each of the parties. Harville, 731 F.2d at 784.

In the case before the Court, the defendant is a joint venture transportation company which is engaged in common carriage of goods by water and overland trucking from Europe to the Middle East. The plaintiff operates a business of freight forwarding and consolidation of cargo for shippers.

Since both parties are involved in the maritime trade, this factor bolsters the argument for invocation of admiralty jurisdiction.

(b) Types of vehicles and instrumentalities involved

In this case, the vehicles involved were ships lying in navigable waters, as well as trucks. Pursuant to the “mixed” contracts, the vessels were to cross navigable waters, taking the cargo to various ports. At that point, the cargo was to be transported overland by truck to particular destination points. In essence, the vessels’ involvement was corporeal, and not merely attenuative to the contractual relationship between the parties. Accordingly, the use of vessels is strong support for the application of admiralty jurisdiction.

(c) Causation and type of injury

At the outset the Court has analyzed the maritime nature of the causation and injury. In considering this factor, the Court has observed the alleged land-based misrepresentations which resulted in plaintiff contracting with defendant for the carriage of goods by sea and land, and the subsequent alleged breach of that contract of affreightment thereof resulting in economic injury. After careful consideration, the Court determines that this is yet another factor to be weighed in favor of application of maritime law.

(d) Traditional concepts of the role of admiralty law

“Of the four factors set out in Kelly, this is clearly the most important.” Harville, 731 F.2d at 785.

The instant case involved an alleged breach of a contract of affreightment and a cause of action for fraud arising out of that breach. Goods were carried by sea a great distance — specifically, from Europe to the Middle East. In essence, there is a significant relationship to commercial maritime activity — the connection with navigable waters was not merely fortuitous.

After examining the relevant law outlining the purpose of maritime law, this Court concludes that this factor weighs heavily in favor of applying admiralty jurisprudence. See Foremost Insurance Co., 457 U.S. at 674-77, 102 S.Ct. at 2658-59 (wherein the Court discussed the purposes of maritime law in ruling that a significant relationship to commercial maritime activity was not necessary for application of admiralty jurisdiction). In sum, admiralty jurisdiction based on a maritime tort theory will be applied.

Conclusion

While this case does not fall within this Court’s diversity jurisdiction, or this Court’s admiralty jurisdiction by virtue of a maritime contract, it does fall within this Court’s admiralty jurisdiction under plaintiff’s asserted maritime tort theory. Accordingly, defendant’s Motion to Dismiss will be denied, and this Court will apply admiralty jurisprudence to this cause of action.

It is so ORDERED.

      . Defendant, in its counterclaim filed on March 8, 1985 and reiterated on March 15, 1985, claims jurisdiction under 28 U.S.C. § 1332, but asserts here that none exists.

      . Plaintiff alleges that the ultimate issue is whether or not the ocean portion of the contract was breached. However, this issue assumes jurisdiction, and is the ultimate issue to be decided at a trial on the merits.

      . A "mixed" contract is one consisting of a maritime and non-maritime aspect which may or may not be divisible.

      . Plaintiff contends that the maritime portion of the contract was breached. However, by its Second Amended Complaint, plaintiff alleges that the cargo arrived at its destination, but was not discharged and carried overland. The Court concludes that, if there was a breach, it occurred as to both aspects of the contract.

      . Moreover, while plaintiffs policy argument is persuasive and
      [although it is certainly true that the lines of admiralty jurisdiction are not ship-shape, extending jurisdiction to this [maritime contract theory] would not further the purposes of the original limited grant of admiralty jurisdiction. The initial grant served not only to further maritime commerce, but also to protect litigants by providing a uniform source of law to vessels traveling in interstate commerce and by assuring an adequate forum.

        Proleride Transport Systems, Inc. v. Union Carbide Corp., 498 F.Supp. 680, 682 (D.Mass.1980).

      . Not only did the alleged tort take effect on a vessel, but, as in Carroll, 512 F.2d 4, the intentional tort was so interwoven with a maritime contractual relationship (at least in part) as to fall within admiralty jurisdiction.

      . Defendant argues that plaintiffs attempt to invoke admiralty jurisdiction should fail because plaintiff has not alleged that any of the fraudulent acts occurred on navigable waters, or that any damages suffered took place on navigable waters. This Court does not agree. See Second Amended Complaint ¶ 10, 12, 17.