text:
    Emanuel M. GLAROS, Plaintiff, v. H.H. ROBERTSON COMPANY, a Pennsylvania corporation, and Inryco, Inc., a Delaware corporation, Defendants.
    No. 79 C 1803.
    United States District Court, N.D. Illinois, E.D.
    June 28, 1985.

      William J. Harte, Lawrence Stanner and Glenn E. Schreiber; George P. McAndrews, Allegretti, Newitt, Witcoff & McAndrews, Chicago, Ill., for plaintiff.
    William Marshall and Nate Scarpelli, Merriam, Marshall & Bicknell; William M. Lee and William M. Lee, Jr., Lee & Smith, Chicago, Ill., for defendants.
   OPINION, ORDER AND DECREE

WILLIAM T. HART, District Judge.

This matter is before the Court after a jury trial for consideration of proposed conclusions by the Court with respect to the issues of obviousness, claim interpretation and prosecution history estoppel and on the motions of the defendants for a judgment notwithstanding the verdict or for a new trial, with respect to which the Court rules as follows.

I. VALIDITY

Plaintiff, Emanuel M. Glaros is the owner of United States. Letters Patent No. 3,535,844 (the “Glaros patent”), issued on October 27, 1970, for an invention entitled “Structural Panels” in the name of Emanuel Michael Glaros, on application No. 744,-901, filed July 15, 1968. Defendant, H.H. Robertson Company (“Robertson”), is a corporation organized and existing under the laws of the State of Pennsylvania. Defendant, Inryco, Inc. (“Inryco”), is a corporation organized and existing under the laws of the State of Delaware.

Claim 2 of the Glaros patent is a dependent claim, incorporating by reference all the provisions of Claim 1. Nonetheless, its patentability must be determined independently of the patentability of Claim 1. Claim 2 of the Glaros patent is presumed to be valid. At trial, the defendants had the burden of proving by clear and convincing evidence that the Glaros invention, as defined by Claim 2, would have been obvious.

The jury’s findings in Interrogatory No. 7, that the differences between the subject matter sought to be patented by Claim 2 of the Glaros patent and the prior art are such that the subject matter as a whole would not have been obvious at the time the invention was made to a person having ordinary skill in the art to which the subject matter pertains, are supported by the credible evidence. (The answers to the Interrogatories are attached hereto as Appendix “A”).

The legal conclusion of nonobviousness must be based on factual considerations including: (1) the scope and content of the prior art; (2) the differences between the prior art and the claimed invention; (3) the level of ordinary skill in the pertinent art at the time the invention was made; and (4) whatever objective evidence may be present as indicia of obviousness or nonobviousness. Graham v. John Deere, 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966).

(1) Scope and Content of the Prior Art

In response to Interrogatory No. 1A the jury found that the Kautz panel of Robertson was not a prior invention which was not abandoned or concealed. In response to Interrogatory No. IB the jury found that Disclosure 606 of the Robertson was not a prior invention which was not abandoned or concealed. These findings are supported by the credible evidence to the effect that Robertson abandoned and either concealed or suppressed, as those terms are used in 35 U.S.C. § 102(g), both the Kautz and Disclosure 606 panels.

In response to Interrogatory Nos. 2a.-i., the jury found that the references listed where not more pertinent to Claim 2 of the Glaros patent than the references cited in the Patent and Trademark Office during the prosecution of the Glaros patent application. These findings are supported by credible evidence.

Particular attention was given to the Pimsner Patent No. 3,047,154 in granting summary judgment on Claims 1 and 3 (Memorandum Opinion November 14,1984). However, as noted in footnote 2 of the opinion, the parties did not center on the question of whether a wall panel for an oven can be prior art for structural wall panels. Slip op. at 7, n. 2.

The evidence at trial disclosed that structural panels pose problems of attachment quite unlike those faced by an oven wall. See, e.g., Stratoflex Inc. v. Aeroquip Corp., 713 F.2d 1530, 1535 (Fed.Cir.1983) (inventor’s acknowledgement of what he considered relevant and nonrelevant prior art as evidence of the scope of the prior art). In addition, the Pimsner panel was not designed to be foamed or made to contain an insulant which adheres securely to the inner surfaces of the skins. There was also credible evidence introduced at trial that the Glaros panel was also designed to avoid delamination of the skins. The preferred embodiment of Claim 2 protrudes the tongue forward of the groove. The tongue is designed to grip the insulant providing a mechanical interlock to prevent removal of the skin from the insulant even if delamination should occur. Pimsner’s single thickness tongue design would not provide a mechanical interlock with insulant. These factors illustrate the different problems faced in the design of oven/refrigerator and exterior wall panels.

The jury was instructed that prior art included only those references “in the same field as the invention” or “in other fields ... if a person of ordinary skill seeking a solution to a problem in one art would seek the solution by referring to that other art” or if “the problem presented and overcome by the invention is the same as that overcome by the prior art.” See Shatterproof Glass Corp. v. Libbey-Owens Ford Co., 758 F.2d 613, 620 (Fed.Cir.1985); Union Carbide Corp. v. American Can Co., 724 F.2d 1567, 1572 (Fed.Cir.1984) (and cases cited therein). Having heard the evidence, the Court concludes that the jury was entirely correct in rejecting Pimsner as pertinent prior art governing Claim 2. There is also credible evidence in the record to support the jury’s findings that prior art references 2b.-i. were each not more pertinent as that word was described in the instructions than the references cited to the Patent and Trademark Office during the prosecution of the Glaros patent application.

Contrary to Inryco’s assertion, the jury’s responses to Interrogatory No. 2 do not display any “lack of comprehension of the issues.” Quaker City Gear Works, Inc. v. Skil Corp., 747 F.2d 1446, 1452 (Fed.Cir. 1984). Rather, they reveal an appreciation of one aspect of the issue (ignored by the defendants in their post-trial papers) which, although not pursued by Glaros to preclude summary judgment as to Claims 1 and 3, was presented to the jury at trial.

(2) Differences Between the Prior Art and the Claimed Invention

In response to Interrogatory Nos. 3A and 3B, the jury responded that the following features of Claim 2 were not found in the prior art:

a double tongue and groove' side edge where the tongue of one panel member is spaced from the groove of the other panel member forming an offset portion a fastening means inserted between the spaced first and second side edges and passing through the offset portion.

The defendants offer only Pimsner as disclosing these features. The Court has found the jury properly determined that Pimsner is not within the relevant prior art. The same may be said of Kautz and Disclosure 606; they simply were not in the relevant prior art. Snyder (and its commercial embodiment, the Butler F103 panel) does not disclose either of these elements. Nor does the Fenestra type C panel disclose an offset tongue and grove interlock.

(3) Level of Skill

The parties have stipulated that the level of skill of a person of ordinary skill in the art at the time Glaros designed his insulated building panel was either (1) a person with 5 to 7 years experience in the design, development, manufacture and erection of insulated building panels, or (2) a graduate engineer having 3 to 5 years of such experience. The jury’s findings of fact are all consistent with this stipulation. This stipulation was also a relevant factor in the jury’s determination of the credibility of the testimony of the witnesses.

(4) Objective Evidence of Nonobviousness

(a) Commercial Success

In response to Interrogatory No. 4, the jury found that the panels of Glaros enjoyed commercial success and that this success was due to the elements of Glaros’ patent Claim 2. There is credible evidence to support a finding of commercial success (albeit modest). Inryco itself chose Glaros’ design to market before “developing” the accused panel. Further, there is no evidence that the commercial acceptance of Glaros’ device resulted from other than his design. The jury also found, in response to Interrogatory No. 5, that the Inryco and Robertson panels enjoyed commercial success; and that such success was due to the elements of the Glaros patent Claim 2. There is credible evidence to support these findings. Changes made by Robertson in its panels brought those panels progressively closer to the subject matter of Glaros’ Claim 2. The jury was instructed that it could find the success of those defendants’ panels to be relevant only if their panels so embodied the Glaros design that these panels infringed the Glaros patent.

Further, the factors identified by Robertson as the basis for the success of its Formawall 1000 panels are generic to each and every one of the products Robertson markets. A poorly designed product marketed by Robertson would presumably fail in the marketplace despite these “advantages,” so that these marketing factors are not sufficient (but may be necessary) conditions for commercial success in the structural panel market. The required nexus between the success of Robertson’s panel and Glaros’ design, Simmons Fastener Corp. v. Illinois Tool Works, Inc., 739 F.2d 1573, 1575 (Fed.Cir.1984), cert denied, — U.S. —, 105 S.Ct. 2138, 85 L.Ed.2d 496 (1985), which the jury found Robertson’s panel embodied, is sufficiently established.

(b) Failure of Others

In response to Interrogatory Nos. 6A and 6B, the jury found that others in the art, acting independently of Glaros and attempting to solve the problem addressed by Claim 2 of the Glaros patent, contemporaneously or previously did not make the same invention as described in Claim 2 of the Glaros patent and failed to solve the problem he addressed. These findings are supported by credible evidence.

Neither Inryco nor Robertson invented a structural panel contemporaneously with or previous to the invention of Glaros which functioned as did the Glaros invention. Robertson redesigned its panel after observing and obtaining a copy of Glaros’ literature on the Glaros panel at a trade show in Chicago, Illinois, on or about October 19, 1968. Inryco failed in its early attempt prior to the Glaros panel to create or invent a panel.

In response to Interrogatory No. 6C, the jury found that prior to and at the time Glaros developed his invention, others in the art approached the problem addressed by Claim 2 of the Glaros patent in a different manner unrelated to the approach taken by Glaros. This finding is supported by credible evidence. Prior to Glaros, no structural panel design addressed the problem of heat transfer through a unitized panel with an offset like that of Glaros which physically separated the inner and outer skins. Although the defendants attempted to characterize several prior panels as containing an offset (e.g., Kautz, Fenestra), there is no real offset in these panels as that term is described in the Glaros patent. Further, each of the panel designs presented by the defendants addresses the heat transfer problem by inserting some non-conducting material between the inner and outer sheets, while Glaros needs no such additional member due to his offset.

(c) Copying

In response to Interrogatory Nos. 6D and 6E, the jury found that defendants Robertson and Inryco copied plaintiff’s panel as defined by Claim 2. These findings are supported by credible evidence, and in light of the defendants’ failure to design a similar panel, is strong evidence of nonobviousness. See Vandenberg v. Dairy Equipment Co., 740 F.2d 1560, 1567 (Fed.Cir.1984).

A Robertson representative saw the Glaros panel at a trade show in Chicago, Illinois, on or about February 19, 1968, and returned with Glaros’ literature which illustrated the Glaros panel. One of Robertson’s inexperienced engineers assigned the task of designing a foam panel, was given the Glaros brochure. He testified that he immediately saw fundamental concepts that were lacking in the Robertson panel which Robertson then intended to produce. He quickly developed a prototype panel using concepts from the Glaros panel as defined by Claim 2. The Robertson team began with this prototype and in modifications progressively moved closer to the Glaros preferred embodiment. The witness’ testimony of copying could not have been clearer. Robertson’s attempt to impeach the witness for bias, because he was discharged, was a question of credibility which the jury resolved against Robertson. The Court has no basis to alter the jury’s determination. See Railroad Dynamics, Inc. v. Stucki Co., 727 F.2d 1506, 1514 (Fed.Cir.1984).

The evidence also supports the conclusion that Inryco copied plaintiff’s panel as defined by Claim 2. The engineer assigned to the design of panels by Inryco was not a person of ordinary skill in the art, having had no experience with foam panels. Before designing Inryco’s panel, he viewed and studied both Glaros’ preferred panel and the Robertson panel, which embodied Glaros’ invention. The jury was not required to accept his denial that he copied.

II. INFRINGEMENT (a) Literal Infringement

In response to Interrogatory Nos. 8A and 8C, the jury found that the Robertson and Inryco panels literally infringe Claim 2 of the Glaros patent. These findings are supported by the credible evidence. The first inquiry in determining infringement is a determination of the scope of the claims. Patent claims are directed to persons of ordinary skill in the art. Fromson v. Advance Offset Plate, Inc., 720 F.2d 1565, 1571 (Fed.Cir.1983). Where expert testimony is given as to the meaning of certain terms and phrases to one of ordinary skill in the art, such testimony may form a proper basis for determining the scope of the claim. McGill, Inc. v. John Zink Co., 736 F.2d 666, 675 (Fed. Cir.), cert. denied, — U.S. —, 105 S.Ct. 514, 83 L.Ed.2d 404 (1984). Hence, although determining the scope of the claim is a question of law, Fromson, 720 F.2d at 1569, the resolution of the conflicting expert testimony presented by the parties was a question properly submitted to the jury. McGill, 736 F.2d at 672.

Both defendants contend that their panels do not literally infringe Claim 2 of the Glaros patent because they lack elements set forth in Claim 2. Robertson argues that its Formawall 1000 product lacks: (i) a fastener “inserted between the spaced first and second side edges,” and (ii) a fourth face or flange of the tongue which is “inwardly parallel to the outer face” of the tongue. Inryco essentially adopts Robertson’s fastener argument and also maintains that its panel has “bullet shaped tongues with sloping or tapered tongue sides” rather than the “parallel” tongue sides assertedly specified in Claim 2. Neither defendant maintains that any other elements of Claim 2 are absent from their accused products.

Although Claim 2 refers to a “fastening means,” the invention defined by Claim 2 is not a “fastening invention.” It is a structural panel. The structural panel has a particular configuration, the offsetting of the skins relative to one another, that along with other functions of the offset, permits fastening not visible from the exterior. The phrase “offset portion” is not recited in the patent specification. However, the meaning of the term is clear. It is formed by offsetting or sliding one skin relative to the other skin as stated in the Court’s opinion of November 14, 1984. The first and second side edges are those portions of the outer and inner skins, respectively, needed to form the groove and tongue, respectively, of the side joint.

Both Inryco and Robertson argue that Claim 2 requires the fastener to pass through the thermal barrier created by the offset. Yet both Inryco and Robertson utilize a clip or spacer as part of its fastening means. The clip or spacer passes through the thermal barrier between the two skins. Thus, even under the defendants’ overly narrow reading of Claim 2, the claim reads on their fasteners.

Further, the screw of the Inryco and Robertson fastening means secures the outer panel skin of their panels to the underlying girts by passing through a piece of metal added to the outer sheet of the Glaros design. This additional piece of metal is part of the fastening system and not part of the first side edge as defined by Claim 2. “An accused device cannot escape infringement by merely adding features, if it has otherwise adopted the basic features of the patent,” even if the additional feature “performs an additional function it does not perform in the patented device.” Radio Steel & Mfg. Co. v. MTD Products, Inc., 731 F.2d 840, 848 (Fed.Cir.) (quoting A.B. Dick Co. v. Burroughs Corp., 713 F.2d 700, 703 (Fed.Cir. 1983)), cert. denied, — U.S. —, 105 S.Ct. 119, 83 L.Ed.2d 62 (1984). Although the Inryco and Robertson “fasteners” perform the function of attaching the outer skin directly to the girt, a function not found in Glaros (although the Glaros design indirectly fastens the outer skin to the girt, as described above, at p. 188), the fastener does pass between the first and second side edges. This result obtains whether the “fastener” is defined as the screw alone, the screw plus the clip or (as this Court finds) the screw, plus the clip, plus the added flange of the outer skin. Thus, the Inryco and Robertson fastener fit squarely within the language of Claim 2.

Claim 2 does not designate particular faces that form the tongue or the groove nor does the word "parallel,” as used in the claim serve as an adjective modifying such an unnamed face. The word “parallel” modifies “being bent,” the bending that is performed parallel to the outer face. A face resulting from a bending force in a direction parallel to the outer face may result in a sloping face. Hence, the “sloping or tapered tongue sides” of Inryco’s panel literally infringe Claim 2. Robertson’s two-sided tongue also literally infringes Claim 2. A tongue formed from the three recited bending motions (outwardly, downwardly and inwardly) may result in a two-sided tongue, the second side of which is bent both downwardly and inwardly. Thus, a reasonable jury could find, (as this Court finds) that both the tongue and the fastener of the accused panels fall within the scope of Claim 2, and that the Inryco and Robertson panels literally infringe Claim 2.

The defendants claim that file wrapper estoppel applies. File wrapper estoppel is only applicable where infringement is found under the doctrine of equivalents. Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 609, 70 S.Ct. 854, 856, 94 L.Ed. 1097 (1959); Hughes Aircraft Co. v. United States, 717 F.2d 1351, 1361 (Fed.Cir.1983). Accordingly, it is not a defense to literal infringement. Fromson, 720 F.2d at 1571. Nonetheless, the file wrapper, or prosecution history is properly considered in evaluating the scope of Claim 2 for the purposes of determining literal infringement, and so has been considered by this Court. McGill, 736 F.2d at 673 (“Prosecution history may be used not only in an estoppel context but also as a claim interpretation tool”).

(b) Infringement Under the Doctrine of Equivalents

In response to Interrogatory Nos. 8B and 8D the jury found that the Inryco and Robertson panels as a whole perform substantially the same function in substantially the same way and accomplish substantially the same result as the structure defined by Claim 2 of the Glaros patent. The findings are supported by credible evidence and support a finding of infringement by equivalents.

Thus, even if Claim 2 was not literally infringed, the accused panels of Inryco and Robertson infringe Glaros’ Claim 2 under the doctrine of equivalents. Nonetheless, the jury’s finding of equivalence is “subservient” to this Court’s finding on the issue of estoppel. Hughes Aircraft Co., 717 F.2d at 1363 (quoting Autogiro Co. of America v. United States, 383 F.2d 391, 400-1 (Ct.Cl.1967)).

Robertson appears to argue that the prosecution history of the Glaros patent application limits Glaros to the letter of Claim 2. Inryco asserts that the file history restricts Claim 2 to the embodiment shown in Figure 2. Even if an estoppel arises from the file history, the doctrine of equivalents is not completely eliminated.

Depending on the nature and purpose of an amendment, it may have a limiting effect ranging from great to small to zero. The effect may or may not be fatal to application of a range of equivalents broad enough to encompass a particular accused product. It is not fatal to application of the doctrine [of equivalents] itself.

Hughes Aircraft Co., 717 F.2d at 1363 (emphasis added).

[W]henever the doctrine of file history estoppel is invoked, a close examination must be made as to, not only what was surrendered, but also the reason for such a surrender. The fact that claims were narrowed does not always mean that the doctrine of file history estoppel completely prohibits a patentee from recapturing some of what was originally claimed.

Bayer Aktiengesellschaft v. Duphar International Research B.V., 738 F.2d 1237, 1243 (Fed.Cir.1984) (emphasis added).

Each of the portions of the prosecution history to which Inryco and Robertson refer are most accurately portrayed as an attempt to overcome the dove-tail joint disclosed in the Sohns patent (U.S. Patent No. 3,397,496 issued in August, 1968). Glaros’ patent attorneys argued that the dovetail side edges of the structure disclosed in Sohns could not be mated by sliding two panels together at the side-joint. Rather, the Sohns panels must be mated at their end-edges by sliding one side edge along the entire length of the side edge of the other panel; a process not feasible for twenty to thirty foot long panels. None of the amendments or arguments cited by the defendants are inconsistent with the application of a narrow range of equivalents to cover the tongues of their panels. The Inryco and Robertson tongued design allow their panels to be mated just as the Glaros panel is mated, without the difficulty posed by the Sohns design.

The defendants’ estoppel argument regarding the fastener utilized by Glaros is equally unavailing. Glaros’ attorney did emphasize in his arguments to the patent examiner the utility of a fastener which did not bridge the “thermal gap.” However, as noted previously, any bridging of the thermal gap that results from Inryco or Robertson fasteners is insubstantial. Their fasteners are not inconsistent with the language of Claim 2 or the file history. Hence, the jury’s finding of equivalence is not precluded by that portion of the file history dealing with Glaros’ fastening means.

Assuming Claim 2 of the Glaros patent does not literally read on defendants’ panels because of the sloping tongue and groove of Inryco or the two-sided tongue of Robertson, the range of equivalents needed to encompass the sloping tongue and groove and the two-sided tongue is small. Also, assuming Claim 2 of the Glaros patent does not literally read on defendants’ panels because their fastening system connects the outer skin directly to the screw fastener, the range of equivalents needed to encompass the direct connection is also small. Application of the doctrine of equivalents into either small area violates neither the prior art nor the doctrine of prosecution history estoppel. The defendants’ panels are not based on the prior art, obvious modifications thereof or subject matter surrendered during prosecution of the Glaros application. There was no surrender of territory which would prevent application of the doctrine of equivalents to the defendants’ panels. Arguments and amendments made during prosecution of the Glaros patent application, with respect to the Sohns Patent No. 3,397,496, would preclude a range of equivalents to an extent which would recapture the surrendered territory of the dove-tailed joint construction. However, such a range of equivalents is not involved. The range of equivalents sought is small and certainly does not seek to recapture the dove-tailed joint construction. Hence, the jury’s finding of equivalence is not barred by any file wrapper estoppel.

III. ROBERTSON’S WILLFULNESS

The jury’s finding in response to Interrogatory No. 9 that the infringement of Robertson in this case was willful is supported by the credible evidence. The evidence of copying and infringement was clear and convincing. Robertson’s denial was not convincing.

The credibility of defendants’ technical expert was repeatedly impeached with inconsistent statements in prior sworn testimony and with inconsistent testimony while testifying at trial. Nor does the prosecution history justify a competing manufacturer’s belief that a slight change in the slope of the surfaces of the tongue and groove or a removal of a third side of the tongue or the connection of the outer skin to the screw fastener would allow the manufacturer to escape liability while at the same time permit the manufacturer’s taking the full equivalent of the invention.

IV. MOTIONS FOR JUDGMENT NOTWITHSTANDING VERDICT OR FOR A NEW TRIAL

Based on the foregoing discussion of the evidence the defendants’ motion for judgment notwithstanding the verdict must be denied. There is substantial credible evidence to support the jury’s findings.

Both parties also ask for a new trial based on alleged errors in evidentiary rulings. The various arguments are without merit. Inryco’s argument that it was prejudiced by the joint trial of Glaros’ claims against itself and Robertson is equally meritless. The jury was repeatedly instructed to assess each defendant independently. See, e.g., Instruction 4, (“Each [defendant] is entitled to a fair consideration of its own defense and should not be prejudiced by the fact, if it should become a fact, that you find against the other”); Instruction 27 (“You should consider separately [for the purpose of determining infringement] the panels of Robertson and Inryco”). Further, each interrogatory inquired separately into the activities of Inryco and Robertson. The jury’s responses to Interrogatory No. 9 indicate that it did not tar both defendants with a single broad brush, but instead was able to weigh each defendant’s case separately. Thus, the alternative motion for a new trial must also be denied.

V. CONCLUSIONS

The Court therefore finds and concludes as follows:

1. Plaintiff has established by a clear preponderance of the evidence that Claim 2 of the patent is valid. Defendants have failed to meet their burden of showing by clear and convincing evidence that the Glaros invention, as defined by Claim 2, was obvious, or that Claim 2 is vague, indefinite or otherwise invalid. Claim 2 is not invalid because it was obvious.

2. Plaintiff has established by a clear preponderance of the evidence that defendant Robertson and defendant Inryco have each literally infringed Claim 2 of the Glaros patent.

3. Alternatively, plaintiff has established by a clear preponderance of the evidence that both the Robertson panel Formawall 1000 and the Inryco panel infringe Glaros’ Claim 2 under the doctrine of equivalents.

4. The defendants have failed to establish file wrapper estoppel or prosecution history estoppel with respect to Claim 2 of the Glaros patent as applied to their respective panels.

5. The plaintiff has established by a preponderance of the evidence that Robertson willfully infringed Claim 2 of the Glaros patent.

6. Defendants’ motions for judgment notwithstanding the verdict or for a new trial must be denied.

7. This is an appropriate case for the exercise of this Court’s equity jurisdiction under 35 U.S.C. § 282 for injunctive relief.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED as follows:

1. The motions for judgment notwithstanding the verdict or in the alternative for a new trial are denied.

2. Judgment is hereby entered in favor of plaintiff and against the defendant H.H. Robertson on the plaintiff’s claim that Robertson has infringed Claim 2 of U.S. Letters Patent No. 3,535,844.

3. Judgment is hereby entered in favor of plaintiff and against the defendant Inryco, Inc. on the plaintiff’s claim that Inryco has infringed Claim 2 of U.S. Letters Patent No. 3,535,844.

4. The defendants, their agents, employees and representatives are permanently enjoined from further infringement upon Glaros Claim 2.

5. All questions of damages, including costs and attorneys’ fees, are reserved until the accounting, pursuant to 35 U.S.C. §§ 284 and 285.

6. The parties are ordered to complete damage discovery within 60 days of the date of this order.

7. The case is set for a report on status on July 16, 1985 at 9:15 a.m.

APPENDIX A

      . Inryco and Robertson attach unwarranted importance to the fact that their screw breaks the thermal barrier formed by the offset in construing the requirements of Claim 2. In a panel twenty to thirty feet in length, any break in the thermal barrier occasioned by the two or three screws would be insignificant.

      . The Glaros Claim 2 is not indefinite simply because it may include a process limitation which defines the structure of the tongue and groove in terms of the result of a bending of the material of the skins in directions parallel and transverse to the outer surface of the panel forming members. The wrapper and file history of the Glaros patent define the tongue as being adapted to fit within the groove. The tongue and a groove structure permit edgewise mating and not the mating structure of a dovetail tongue and groove in which the parts cannot mate edge-wise but must be slid endwise along one another in order to be fitted together.
      In addition, the term "end edges” is recited in the patent specification and is shown, for example, in the original patent drawings Fig. 32. The meaning of the term "end edges” is clear and neither party's experts disagreed as to its meaning. Claim 2 is not vague and indefinite within the meaning of 35 U.S.C. § 112.


source: Caselaw Access Project

author: HAROLD H. GREENE, District Judge.

license: Public Domain

text:
    NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE, et al., Plaintiffs, v. Edwin MEESE, III, Defendant.
    Civ. A. No. 85-1406.
    United States District Court, District of Columbia.
    July 2, 1985.

      Grover G. Hankins, General Counsel, Audrey B. Little, Asst. General Counsel, N.A. A.C.P., Brooklyn, N.Y., Alfred W. Blumrosen, Newark, N.J., and Jesse James, Jr., Baccus, James & Padgett, Washington, D.C., for plaintiffs.
    Brook Hedge, Judith F. Ledbetter and Richard Greenberg, Civil Div., U.S. Dept. of Justice, Washington, D.C., for defendant.
   MEMORANDUM

HAROLD H. GREENE, District Judge.

In this action, the National Association for the Advancement of Colored People (NAACP) and nine individuals seek an order (1) enjoining the Attorney General and his subordinates from reopening, causing to be reopened, or consenting to the reopening of any decree in an action brought by the government under Title VII of the Civil Rights Act of 1964, as amended, on the basis that such decree contains goals, timetables, numerical remedies, or other relief for persons not proven to be “actual victims” of discrimination, and (2) requiring the Attorney General (a) to report to plaintiffs and to this Court if any other party seeks to modify or reopen such decree, (b) to advise the court in which a motion to reopen or modify is made of the pendency of this action, and (c) to provide plaintiffs with a list of all such cases and copies of all correspondence relating to such possible modification of such decrees. Additionally, plaintiffs seek to have this Court declare that goals, timetables, or numerical remedies entered by a court after a finding of discrimination or by consent of the parties do not violate Title VII, the Constitution, or any law of the United States. Plaintiffs have requested a preliminary and permanent injunction; the defendant has moved to dismiss; and the Court has received briefs and heard oral argument.

On the merits, this action involves a dispute between the parties on the validity of employment goals and timetables for minorities and women in the wake of the Supreme Court’s decision in Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 104 S.Ct. 2576, 81 L.Ed.2d 483 (1984). The Department of Justice has apparently given the Stotts decision a far different and broader interpretation than have plaintiffs and several courts of appeals. However, notwithstanding plaintiffs’ request, this Court cannot validly consider the meaning of Stotts in this lawsuit since, whatever may be the proper interpretation of that decision, plaintiffs’ action is faced at the very outset with insurmountable procedural barriers.

Although the parties have briefed and argued a great many issues, two fundamental principles of law so clearly stand as obstacles to the grant of relief by the Court that none of the other issues is open for consideration. Plaintiffs’ action must fail (1) under the principle of the separation of powers, and (2) because this Court lacks authority to interfere with or to seek to guide litigation in other district courts throughout the United States.

I

What plaintiffs are asking this Court in essence to do is to direct the formulation and presentation by the Department of Justice of its legal position in a number of lawsuits, whether now pending in federal courts or to be filed in such courts in the future. However, it is settled by law that Article II of the Constitution reserves to the President and, by implication, to his principal legal adviser, the Attorney General, the authority to prosecute actions on behalf of the United States and otherwise to present the views of the United States in the courts. The principle that prosecutorial discretion lies within the exclusive province of the Executive Branch has been expounded in such decisions as United States v. Mendoza, 464 U.S. 154, 104 S.Ct. 568, 573, 78 L.Ed.2d 379 (1984), where the Court noted that

while the Executive Branch must of course defer to the Judicial Branch for final resolution of questions of constitutional law, the former nevertheless controls the progress of government litigation through the federal courts

and Buckley v. Valeo, 424 U.S. 1, 138, 96 S.Ct. 612, 691, 46 L.Ed.2d 659 (1976), where it said that

it is to the President, and not to Congress, that the Constitution entrusts the responsibility to “take Care that the Laws be faithfully executed.” Art. II, § 3.

That principle, to be sure, is not absolute: it is subject to exceptions where the Congress has explicitly, and for special, valid reasons, vested portions of the Executive’s prosecutorial discretion in individuals ultimately responsible to the judicial branch. But no court has ever held, or even intimated, that the courts may superintend the exercise of the prosecutorial power of the Attorney General absent a direct and unambiguous congressional mandate. There is no such mandate here.

A.

Plaintiffs rely for support of their position in this regard on the Administrative Procedure Act, 5 U.S.C. § 553, and on Executive Order No. 12067, 43 Fed.Reg. 28967 (1978).

The APA provides that review may be had in the courts for “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. The complaint in this case fails with respect to both parts of that standard.

First. “Final agency action” is characterized by the imposition of an obligation, the denial of a right, or the fixing of a legal relationship. Department of Justice v. Federal Labor Relations Authority, 727 F.2d 481, 493 (5th Cir.1984); see also New York Stock Exchange v. Bloom, 562 F.2d 736, 741-42 (D.C.Cir.1973). The Supreme Court has squarely held that the initiation of enforcement proceedings is not subject to APA review inasmuch as the filing of a complaint is no more than a threshold determination that further inquiry is warranted and has no legal force except to the extent of requiring a response. Federal Trade Commission v. Standard Oil of California, 449 U.S. 232, 241-42, 101 S.Ct. 488, 493-94, 66 L.Ed.2d 416 (1980). So here. If the Attorney General decides to file, has filed, or files in the future motions to reopen or modify decrees in various courts, those acts alone cannot and will not deny rights or create legal obligations or relationships. Only the courts to which the Attorney General’s motions are addressed have the power to take any of these steps, and it is these courts, not the Attorney General, which take final action.

Second. Plaintiffs likewise cannot satisfy the second prong of the APA requirement, for almost by definition they have an adequate remedy in a court, that is, the remedy of opposing the Attorney General’s motions in the court in which he files his papers. Not only would the filing of such an opposition there be a judicial remedy obviating the need for resort to the APA in this District, but it is a far more appropriate, far more logical remedy than a lawsuit here seeking injunctive relief. See Part II, infra.

B.

Plaintiffs fare no better under Executive Order 12067. That order, issued in 1978, grants to the EEOC a “leadership” and “coordination” role with respect to equal employment discrimination prohibited by Title VII. See section 1-2 of the Executive Order, reprinted at 42 U.S.C.A. § 2000e at 25 (1981). There is nothing whatever in these rather vague terms—or indeed in the history of the order—that would suggest that it requires the Department of Justice to conform the exercise of its statutory responsibilities to the policies adopted by the EEOC.

Almost since the inception of the Republic, the Attorney General has had the responsibility for litigation in the courts in the name of the United States, subject, of course, to the direction of the President. The Attorney General’s power is now codified in several explicit sections of the United States Code, 28 U.S.C. §§ 516, 517, and 519. See also, Heckler v. Chaney, supra. If the President had intended by his Executive Order to have the EEOC dictate to the Attorney General with respect to individual prosecutions or to prosecution policy generally, that intention would have been expressed in far more mandatory, far less ambiguous language. In fact, the last subsection of the Executive Order conveys a far different intent: it specifically provides that “[njothing in this order shall limit the Attorney General's role as the legal adviser to the Executive Branch.” Section 1-502.

In short, the constitutional principle of the separation of powers stands as an obstacle to the relief requested by plaintiffs.

II

As noted, the complaint requests the issuance of an order which would, inter alia, preclude the Attorney General from filing motions for modification in lawsuits pending in other courts and prohibit him from consenting to any such modification. Any such order would, of course, directly affect the course of the litigation in these courts, and it would, indeed, interfere directly with their jurisdiction over the lawsuits.

The pernicious effect of such interference can be demonstrated by a few simple examples. Suppose there were circumstances in a case pending in a particular court which called for a genuine, good faith request for a modification. Is one of the parties to the lawsuit, i.e., the Department of Justice, to be precluded by another court, sitting in Washington, D.C., from presenting the new factual or legal situation to the tribunal having jurisdiction over the action? Even more, suppose another party to the lawsuit in the court having jurisdiction of the substantive controversy requests a reopening or modification of the decree. Should the Department of Justice be compelled to advise the court that it is unable to respond to the request because of an order issued by this Court? These questions illustrate the breadth of the relief requested by plaintiffs and its contravention of principles of comity.

It must also be remembered that circumstances may and usually do vary substantially from city to city and from case to case. Yet plaintiffs are requesting this Court to prohibit any acquiescence by the Department of Justice in the reopening or modification of decrees although this Court does not and cannot know what is contained in any particular decree, what factual record underlies either the decree or the request for modification, what parties are involved in the lawsuit other than the United States, and what compliance there has been with the provisions of a particular decree. It is obvious that, if only from a practical point of view, decisions concerning reopening and modification, whether requested by the Department of Justice or by any other party, can be made only by the court that has jurisdiction over the substantive controversy.

The law takes full account of these practicalities. As the Court of Appeals for the Fifth Circuit said in Mann Manufacturing, Inc. v. Hortex, Inc., 439 F.2d 403, 407-08 (5th Cir.1971), quoting in part from Lapin v. Shulton, 333 F.2d 169, 172 (9th Cir. 1964):

It is well settled that the issuing court has continuing power to supervise and modify its injunctions ... When a court is confronted with an action that would involve it in a serious interference with or usurpation of this continuing power, “considerations of comity and orderly administration of justice demand that the nonrendering court should decline jurisdiction ... and remand the parties for their relief to the rendering court, so long as it is apparent that a remedy is available there.”

This Court is not prepared to hold that the federal courts in the 50-odd jurisdictions contacted by the Department of Justice will not provide an adequate remedy to those who wish to resist improper or legally unsound Department of Justice motions for reopening or modification of a Title VII decree.

Thus, the principle of comity between courts supplies an additional reason for the abstention of this Court from entering the orders requested by plaintiffs.

III

One of the basic principles, one of the glories, of the American system of justice is that the courthouse door is open to everyone—the humblest citizen, the indigent, the convicted felon, the illegal alien. To close that door to the Attorney General by prohibiting him from filing in any federal court of the land pleadings expressive of the position of the Executive Branch with respect to Title VII lawsuits in which that Branch has a legal interest would be an extraordinary step indeed.

Not only is there no precedent in any of the decided cases for such an invasion by a district court into the Executive’s prosecutorial discretion—or for the resulting interference with the authority of other federal courts to deal with litigation pending before them as they see fit—but basic jurisprudential principles affirmatively prohibit such an action. It may well be that plaintiffs are correct in their interpretation of Stotts, but the Supreme Court’s opinion in that case is sufficiently Delphic that a contrary construction cannot with certainty be ruled out.

Relief from the Justice Department’s interpretation of the law, and in particular of the Stotts decision, must in the first instance be sought from the courts in which the Department seeks to modify its traditional stance, and in the final analysis either from the Supreme Court (through an explication or modification of the Stotts ruling) or from the Congress. This District Court is not the appropriate forum for a nation-wide determination of the meaning of Stotts by way of an injunction against the Attorney General. The government’s motion to dismiss will be granted.

      . 42 U.S.C. § 2000e et seq.

      . The complaint also requests costs and attorneys’ fees.

      . At least three U.S. Courts of Appeals that have had occasion to consider the issue since Stotts was handed down have construed .that decision more narrowly than has the Justice Department. See, e.g., Turner v. Orr, 759 F.2d 817 (11th Cir.1985); EEOC v. Local 638, 753 F.2d 1172 (2d Cir.1985); Vanguards v. City of Cleveland, 753 F.2d 479 (6th Cir.1985).

      . Thus, plaintiffs discuss the Revenue Sharing Act, the due process and equal protection clauses of the Fifth Amendment, and the First Amendment. Defendant asserts, inter alia, that plaintiffs lack standing and that there is no justiciable controversy.

      . The Department of Justice has taken the position that consent decrees in fifty-one cases are contrary to Stotts. The affected jurisdictions are Alexandria, Louisiana (police and fire); Arkansas State Police; Baltimore County, Maryland; Boston, Massachusetts (water and sewer); Boston Fire Department; Buffalo, New York, Fire Department; Buffalo Police Department; Chicago Fire Department; Chicago Police Department; Cincinnati, Ohio, Police Department; Cobb County, Georgia, Public Schools; Euclid, Ohio, Board of Education; Farmington, New Mexico; Florida Highway Patrol; Ft. Lauder-dale, Florida (police and fire); Garfield Heights, Ohio, School District; Indianapolis, Indiana (police and fire); Jackson, Mississippi; Kansas City, Kansas, Board of Public Utilities; Laurel, Mississippi, Fire Department; Los Angeles Fire Department; Los Angeles Police Department; Maryland State Police; Maryland Transportation Authority; Memphis, Tennessee; Miami, Florida; Milwaukee County, Wisconsin, Sheriff; Milwaukee Fire Department; Milwaukee Police Department; Nashville-Davidson, Tennessee (police and fire); New Jersey Fire Department (12 cities); New Jersey State Police; New York State Police; Norfolk, Virginia (police and fire); North Carolina Highway Patrol; Ohio State Highway Patrol; Omaha, Nebraska, Police Department; Onondaga County, New York, Sheriff; Philadelphia Police Department; Pinellas County, Florida; Pompano Beach, Florida; San Diego, California; San Diego County, California; San Francisco Police Department; Schiller Park, Illinois, Police Department; St. Louis, Missouri, Fire Department; Statesville, North Carolina (police and fire); Syracuse, New York (police and fire); Waukesha County, Wisconsin, Sheriff; Wichita Falls, Texas, Police Department; Woburn, Massachusetts, School Committee.

      . See, e.g., E. Corwin, The Constitution and What It Means Today 145 (1973); Ex parte Siebold, 100 U.S. (10 Otto) 371, 397-98, 25 L.Ed. 717 (1879); Hearings on Special Prosecutor before the Senate Committee on the Judiciary, 93rd Cong., 1st Sess (1973).

        . It is even more obvious that the mere adoption by the Attorney General of the disputed Stotts interpretation, without more, cannot have these significant legal effects. Thus, the sending of letters urging affected municipalities to seek to modify consent decrees cannot directly affect minorities’ legal rights, since the governing bodies of these municipalities remain free to oppose the Justice Department’s approach—as many of them apparently have done (see "Justice Department Stance on Hiring Goals Resisted,” The Washington Post, at A-2 (May 26, 1985)).

      . These plaintiffs, or others similarly situated, should normally be able to present their evidence and their arguments before those tribunals prior to the time that judicial action is taken. Plaintiffs claim that, in at least one instance, where the parties to the decree were the United States Department of Justice and the governing body of the particular locality, individual blacks were not permitted to participate in the modification procedure because they were not parties to the original decree. It would seem to this Court that in such circumstances it would be highly desirable to allow those whom the original decree was intended to protect (even if they were not formally parties thereto), to intervene when the United States or the particular municipality jointly seek a significant modification of the decree. But that, of course, is a matter for decision by the court before which the substantive lawsuit is pending.

      . Review under the APA is also unavailable because the Attorney General’s decision to seek a modification of one or more consent decrees is “committed to agency discretion by law." 5 U.S.C. § 701(a)(2). 42 U.S.C. §§ 2000e-5(f) and 2000e-6 grant to the Attorney General broad discretion with respect to the enforcement of actions under Title VII. Cf. Heckler v. Chaney, — U.S. —, 105 S.Ct. 1649, 1656-58, 84 L.Ed.2d 714 (1985). Furthermore, notice and comment are not required for interpretive rules or general statements of policy without substantive impact. See Cabais v. Egger, 690 F.2d 234 (D.C.Cir.1982).

      . The EEOC has issued guidelines which approve of goals and timetables benefitting persons who are not proven victims of discrimination.' 29 C.F.R. § 1608.4(b), (c). The EEOC also has the authority to grant immunity to employers who follow the interpretations and opinions of the Commission. See also, Albemarle Paper Co. v. Moody, 422 U.S. 405, 423 n. 17, 95 S.Ct. 2362, 2374 n. 17, 45 L.Ed.2d 280 (1975).

      . When it comes to such matters as possible conflicts of interest or political or other corruption within the White House, the Attorney General is insulated even from that limited amount of direction.

      . Plaintiffs seek to make a distinction between individual prosecutions (which they concede to be within the sole control of Department of Justice officials) and prosecution policy (which they contend is controlled by the Executive Order and the APA). However, such a distinction cannot validly be drawn. Is the policy of a particular U.S. Attorney to concentrate the resources of his Office on bank robbery cases rather than white collar crimes, or on heroin distribution rather than marijuana possession, a "policy” which requires notice and comment in accordance with the APA? Is a policy to concentrate on race discrimination complaints in employment by large corporations rather than on sexual harassment claims emanating from small establishments a “policy” that requires clearance from the EEOC? Should the U.S. Attorney for this District have proceeded pursuant to the APA before he decided to adopt a “policy” not to prosecute those demonstrating in front of the Embassy of South Africa? To pose the questions is to demonstrate the artificiality of the distinctions plaintiffs are attempting to draw.

      . Just last week, in a somewhat similar context, the Court of Appeals for this Circuit held in Falkowski v. EEOC, 764 F.2d 907 (1985), that
      The EEOC can recommend to the Department of Justice (DOJ) that one of its employees be represented by the government in a lawsuit involving the employee. The Department of Justice then makes the final decision as to whether or not to provide representation.
      At 909.

      . Under Rule 60(b) of the Federal Rules of Civil Procedure, a decree may be modified on account of changed circumstances. See System Federation No. 91 v. Wright, 364 U.S. 642, 647, 81 S.Ct. 368, 371, 5 L.Ed.2d 349 (1961).

      . See also, Thaggard v. City of Jackson, 687 F.2d 66 (5th Cir.1982); Black & White School Children v. School District of Poutise, 464 F.2d 1030 (6th Cir.1972); and see Adams v. Bell, 711 F.2d 161 (D.C.Cir.1983) (en banc) (a federal court sitting in the District of Columbia may not disregard a judgment of another federal district court and it may not require the issuance of an order that would be either ineffectual or would prejudice the rights of other, indispensable parties not before the court).

      . See supra note 5.

      . There are also no grounds for granting those portions of the prayer for relief that seek an order requiring the Attorney General to keep other federal courts apprised of the progress of this litigation and to keep plaintiffs and this Court informed as to the status of litigation in the affected jurisdictions. The Court’s conclusion that this suit must be dismissed obviously moots the requests that other courts be notified that this litigation is pending or that this Court be notified of litigation in the other cases. As for the other informational relief sought, the plaintiffs have a list of all of the potentially affected jurisdictions (Plaintiffs’ Exhibit F), and there is no legal basis for ordering the Attorney General to take special steps to keep plaintiffs informed concerning the details of litigations to which they are not parties.

      . That principle of access to the courts of course consists not merely of the right to file a complaint but it includes the right to file other papers, including motions apprising the court of possible changes in the facts, the law, or the position of the litigant.

      . As indicated above, the issue is not whether the Attorney General's policy on goals, timetables, and the like is right or wrong. That is a decision for the particular court in which a motion expressive of that policy is filed. Obviously, the expressions of the Attorney General’s position in these fora would have no more weight than the position argued by any other litigant; their weight would be that of their intrinsic persuasiveness (or lack thereof), not the weight of the Office.

      . See note 3, supra.

      . The Court notes that the Supreme Court has recently granted certiorari in a case that may shed additional light on the meaning of the Stotts decision. Wygant v. Jackson, 746 F.2d 1152 (6th Cir.1984), cert. granted, — U.S. —, 105 S.Ct. 2015, 85 L.Ed.2d 298 (1985).


author: DITTER, District Judge.

text:
    Ronnie BRADLEY v. The UNITED STATES of America.
    Civ. A. No. 85-0034.
    United States District Court, E.D. Pennsylvania.
    July 10, 1985.
    Edward L. McCandless, Jr., Philadelphia, Pa., for plaintiff.

      Serena H. Dobson, Asst. U.S. Atty., Edward S.G. Dennis, Jr., U.S. Atty., Philadelphia, Pa., for defendant.
   MEMORANDUM AND ORDER

DITTER, District Judge.

In this action plaintiff alleges negligent and/or tortious conduct on the part of United States’ employees. The facts, viewed in the light most favorable to plaintiff, are as follows. Alarmed by the sale of illegal drugs in the Coatesville Veterans Administration Hospital, James L.G. Parsons, II, director of the hospital, and Peter J. Mango, chief of the hospital’s police force, decided to conduct an undercover investigation. Curtis Kimmel, a V.A. police officer, was assigned to the undercover investigation and John Cantrell, a hospital clothing clerk, was utilized as an informant. As is the ease with some informants, Cantrell’s reputation was not as a vestal virgin it being alleged that he was known to be both mentally deficient and a drug user.

Shortly after commencement of Cantrell’s undercover activities, and based upon information supplied by Cantrell, Officer Kimmel caused a criminal complaint to be filed against plaintiff. This complaint charged plaintiff with “possession, possession with intent to deliver and delivery of a controlled substance, to wit: marijuana.” Because of weaknesses in the government’s evidence, this criminal action was nolle prossed by the Chester County District Attorney’s Office. However, the allegation that plaintiff was a drug dealer did result in plaintiff’s dismissal from employment at the V.A. hospital.

Based on the foregoing, plaintiff caused a Bivens type action to be filed against Curtis Kimmel, John Cantrell, and James Parsons. Approximately two weeks prior to the scheduled trial date for'the Bivens action, plaintiff filed this complaint asserting, a cause of action directly against the United States pursuant to the Federal Tort Claims Act (“FTCA”). 28 U.S.C. § 1346(b). Presently before me is the government’s motion to. dismiss the FTCA action. In this motion, the government asserts the conduct complained of is within the “discretionary function” exception to the waiver of sovereign immunity contained in the FTCA. For the reasons that follow, the government’s motion will be granted.

The “discretionary function” exception to the Federal Tort Claims Act, 28 U.S.C. § 2680(a), has resulted in much litigation with judicial precedent difficult to harmonize. See Bernitsky v. United States, 620 F.2d 948, 951 (3d Cir.1980). On the one hand, eases recognize that statutes waiving a sovereign’s immunity from suit “are to be strictly construed in favor of the sovereign” McMahon v. United States, 342 U.S. 25, 27, 72 S.Ct. 17, 19, 96 L.Ed. 26 (1951). On the other hand, blind application of the “discretionary function” language would completely abrogate the waiver of immunity contained in 28 U.S.C. § 1346(b) because virtually all governmental actions require some decision making and, therefore, the exercise of some discretion. See Smith v. United States, 375 F.2d 243, 246 (5th Cir.), cert. denied, 389 U.S. 841, 88 S.Ct. 76, 19 L.Ed.2d 106 (1967) (“If the Tort Claims Act is to have the corpuscular vitality to cover anything more than automobile accidents in which government officials are driving, the federal courts must reject an absolutist interpretation____”). See also Downs v. United States, 522 F.2d 990, 995 (6th Cir. 1875), Liuzzo v. United States, 508 F.Supp. 923, 931 (E.D.Mich.1981). This conflict, together with Supreme Court decisions Chief Justice Burger has characterized as “not followpng] a straight line,” United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), — U.S. —, 104 S.Ct. 2755, 2764, 81 L.Ed.2d 660 (1984), has resulted in judicial precedent that does not “comprise a particularly coherent body of case law.” Blessing v. United States, 447 F.Supp. 1160, 1172-73 (E.D.Pa.1978) (comparing various cases).

One of the earliest, and easily the most famous case on the subject is Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). In Dalehite the Supreme Court characterized discretionary functions as those functions in which there was “room for policy judgment and decision.” Id. at 36, 73 S.Ct. 968. Continuing, the Court found the challenged conduct could not “subject the Government to liability [because] the decisions ... were all responsibly made at a planning rather than operational level.” Id. at 42, 73 S.Ct. 971.

From this Supreme Court language was born what is termed the planning level/operational level test for use in determining the contours of the discretionary function exception. See Lindgren v. United States, 665 F.2d 978, 980 (9th Cir.1982); Bryson v. United States, 463 F.Supp. 908, 911 (E.D. Pa.1978). Under this test all decisions concerning the “feasibility or practicability of governmental programs” or “considerations of public policy, calling for a balance of such factors as cost of Government programs against the potential benefit” were held to be “planning level” decisions and protected by the discretionary function exception. See Griffin v. United States, 500 F.2d 1059, 1064 (3d Cir.1974). Conversely, decisions which merely addressed how best to implement planning level decisions were defined as “operational decisions” not sheltered by the discretionary function exception.

From the beginning the planning level/operational level test proved troublesome. As stated by Judge Becker, in one of the most comprehensive opinions on the subject, the “planning/operational distinction, instructive as it may be on a theoretical level, can become exceedingly problematic when applied to concrete facts.” Blessing v. United States, 447 F.Supp. 1160, 1173 (E.D.Pa.1978). Nonetheless, and apparently because this test does provide for many cases an accurate and easily applied standard, use of this test can still be found in reported decisions. See Payne v. United States, 730 F.2d 1434 (11th Cir. 1984); Grunnet v. United States, 730 F.2d 573 (9th Cir.1984); Jablonski v. United States, 712 F.2d 391 (9th Cir.1983); Morris v. United States, 585 F.Supp. 1543 (D.Mo. 1984). Its continued use, however, is of questionable propriety in that the most recent Supreme Court pronouncement on the discretionary function exception fails to even mention the test. See Varig Airlines, — U.S. —, 104 S.Ct. 2755, 81 L.Ed.2d 660. Similarly, recent Third Circuit decisions on the discretionary function exception have not utilized the planning/operational distinction. See General Public Utilities Corp. v. United States, 745 F.2d 239 (3d Cir.1984).

In place of the planning/operational distinction, the Supreme Court in Varig Airlines, and the Third Circuit in its recent decisions utilize the reasoning employed by the Sixth Circuit in Downs v. United States, 522 F.2d 990 (6th Cir.1975). In Downs, the plaintiffs alleged FBI agents were negligent in the handling of an airplane hijack incident. As a result of this negligence, the hijackers murdered plaintiffs’ decedents. After reviewing the relevant case law and legislative history, the Sixth Circuit rejected the planning level-operational level test. In so doing the Downs court noted that the basis undergirding the test, “the status of the official making a judgment,” was “not a sufficient test for determining whether a government employee’s actions are within the exception.” Downs, 522 F.2d at 997. Rather, “the basic question concerning the exception is whether the judgments of a Government employee are of ‘the nature and quality’ which Congress intended to put beyond judicial review. Id. (quoting Smith v. United States, 875 F.2d 243, 246 (5th Cir.), cert. denied, 389 U.S. 841, 88 S.Ct. 76, 19 L.Ed.2d 106 (1967).

In this case, plaintiff has challenged four areas of conduct. First, he alleges government employees were negligent in using Cantrell as an informant because of his questionable mental capacity and moral character. Secondly, plaintiff alleges negligence in the supervision of Cantrell. More specifically, plaintiff alleges Curtis Kimmel failed to follow accepted procedures for the use of undercover drug informants. Third, plaintiff alleges Officer Kimmel acted in bad faith in causing criminal charges to be filed. And finally, plaintiff alleges his arrest, coupled with Kimmel’s bad faith in bringing criminal charges, constitutes the tort of false arrest. Reduced to their core, plaintiff’s allegations challenge the methods used by federal employees in investigating criminal offenses and their reliance on these procedures in causing criminal charges to be filed.

The decision to prosecute a given individual is the quintessential example of discretionary conduct. See Accardi v. United States, 435 F.2d 1239 (3d Cir.1970); United States v. Arnold, 403 F.Supp. 172 (E.D.Pa. 1975). That prosecutors possess wide latitude in this regard has never been questioned and the reasons supportive of its existence have often been used to analyze the availability of the discretionary function exception in similar FTC A situations. See Bernitsky v. United States, 620 F.2d 948 (3d Cir.1980); Blessing v. United States, 447 F.Supp. 1160 (E.D.Pa.1978) (Becker, J.) Furthermore, the protection afforded prosecutorial decisions extends even to prosecutors at the lowest level. See United States v. Panza, 381 F.Supp. 1133 (W.D.Pa.1974).

With these principles in hand, the United States Court of Appeals for the District of Columbia, when presented with a similar factual scenerio, found a plaintiff’s action barred by the discretionary function exception. Gray v. Bell, 712 F.2d 490 (D.C.Cir. 1983). In so holding the Gray court expanded the discretionary function umbrella over not only the decision to prosecute but also over decisions concerning how best to investigate alleged criminal activities. It reasoned that “each allegation of improper investigatory conduct is inextricably tied to the decision to prosecute” and to separate the allegations would be to “elevate the form of Gray’s complaint over its essence.” Id. at 516.

I fully agree with Gray to the extent it holds separating allegations of improper investigatory techniques from the decision to prosecute would be an exercise in semantic obfuscation. Deciding how to investigate, who to investigate, and how to present evidence to the proper authorities are classic examples of immunized prosecutorial conduct. See Imbler v. Pachtman, 424 U.S. 409, 431, 96 S.Ct. 984, 995, 47 L.Ed.2d 128 (1976). See also United States v. Faneca, 332 F.2d 872, 875 (5th Cir.1964), cert. denied, 380 U.S. 971, 85 S.Ct. 1327, 14 L.Ed.2d 268 (1965) (“It is clear that the United States has a duty to maintain law and order and to enforce the commands of its courts; just how best to fulfill this duty is wholly within the discretion of its officers.”) (emphasis in original). Furthermore, such conduct is exclusively within the province of the executive branch making it exactly the type of conduct the discretionary function exception was intended to protect from judicial branch interference. See Gray v. Bell, 712 F.2d 490 (D.C.Cir.1983).

Plaintiff’s allegations that Officer Kimmel failed to disclose to the prosecuting authorities the weaknesses in his evidence and that Kimmel initiated criminal proceedings only to “save face” does not require a different result. Complaint ¶ 19. Despite plaintiff’s allegations of intentional conduct, his response to defendant’s summary judgment motion contains no supporting evidence. At best, the record shows that government employees may have been negligent in their decision as to what evidence should have been presented. Accordingly,' this case is easily distinguishable from cases where a government agent intentionally gave false evidence in order to prosecute an individual, see Heywood v. United States, 585 F.Supp. 590 (D.Mass.1984), because in those cases the key factor is that the government agent simply possessed no discretion to act as he did. See id. See also Bergmann v. United States, 689 F.2d 789, 792 (8th Cir.1982) (“discretionary function exception inapplicable to allegations that government employees ignored or failed to comply with regulations or policies designed to guide their actions”); Staton v. United States, 685 F.2d 117 (4th Cir.1982) (Park ranger’s shooting of hunting dog not discretionary function despite federal regulation providing for such activity because ranger’s supervisors had eliminated ranger’s discretion to shoot by issuing directive that all wild dogs should be captured, not killed.) In the absence of false testimony, it is clear that federal officials have broad discretion in deciding what evidence should be presented to prosecuting authorities.

In reaching the foregoing conclusion I am fully mindful of the standards guiding the grant of summary judgment. See Continental Insurance Co. v. Bodie, 682 F.2d 436, 438-39 (3d Cir.1982). However, I am also mindful that when a summary judgment motion is filed, the opposing party may not rely on unsupported allegations. As stated in the oft cited case of Whitaker v. Coleman, 115 F.2d 305, 306 (5th Cir. 1940) “its purpose is not to cut litigants off from their right of trial by jury if they really have evidence which they will offer at trial, it is to carefully test this out, in advance of trial by inquiring and determining whether such evidence exists.”

In this case the only evidence adduced by plaintiff suggests a negligent investigation and a decision to prosecute which in itself may have been negligent because of the tenuousness of the evidence. While in the typical case it could be argued that this factual evidence is enough to get to the jury, such evidence is insufficient in matters like that presented sub judice. Otherwise, federal law enforcement personnel would be continually placed between the scylla of acting too quickly thereby evidencing maliciousness and the charybdis of acting too slowly thereby negligently permitting dangerous elements to roam loose in the population. See, e.g., Bergmann v. United States, 689 F.2d 789 (8th Cir.1982) (wrongful death action alleging government was negligent in the selection of an individual for participation in Federal Witness Security Program where, while participating in the program, he murdered plaintiff’s husband); Payton v. United States, 679 F.2d 475 (5th Cir.1982) (action by murder victim’s family for negligent release of a “known homicidal psychotic” who after release murdered plaintiffs’ decedent). Furthermore, as stated in Smith v. United States, 375 F.2d 243, 247 (5th Cir.1967), “if the government could be held liable for prosecuting or failing to prosecute such a case its choices in this area could quite conceivably be affected by such a suit. Thus, a policy decision of the federal government might be influenced by a plaintiff with no governmental responsibility.”

In essence, to accept plaintiff’s theory of negligent prosecution would be to allow a plaintiff to bypass the well established rule that prosecutorial decisions are protected merely by alleging he was arrested, had the charges dismissed, the arresting officer did A, B, and C when with the benefit of hindsight it would have been better for him to do X, Y, and Z, had the officer done X, Y, and Z plaintiff would not have been arrested, and therefore, malice existed on the part of the officer. Such a theory is entirely too foreign to the well-established principle that prosecutorial decisions are protected even if those decisions evidence an abuse of discretion. See Estate of Callas v. United States, 682 F.2d 613 (7th Cir.1982). Furthermore, as stated in Lambertson v. United States, 528 F.2d 441 (2d Cir.), cert. denied, 426 U.S. 921, 96 S.Ct. 2627, 49 L.Ed.2d 374 (1976), "a court must look, not to the theory upon which the plaintiff elects to proceed, but rather to the substance of the claim which he asserts.” Id. at 443 (citing United States v. Faneca, 332 F.2d 872 (5th Cir.1964), cert. denied, 380 U.S. 971, 85 S.Ct. 1327, 14 L.Ed.2d 268 (1965); Klein v. United States, 268 F.2d 63 (2d Cir.1959); Coffey v. United States, 387 F.Supp. 539 (D.Conn.1975)). In so doing courts must always protect against “judicially admitting] at the back door that which has been legislatively turned away at the front door.” Laird v. Nelms, 406 U.S. 797, 802, 92 S.Ct. 1899, 1902, 32 L.Ed.2d 499 (1972).

Finally, I recognize that other courts would not necessarily agree with my analysis. For instance, in Wright v. United States, 719 F.2d 1032 (9th Cir.1983), the plaintiff had been indicted for failing to file tax returns and the filing of false tax returns. After the government dismissed the indictment and abandoned its prosecution of Wright, he filed a FTC A action alleging the indictments amounted to malicious prosecution. The Ninth Circuit after noting that “the decision whether or not to prosecute a given individual is a discretionary function” noted that implementation of the decision to prosecute “including the nature of his [the I.R.S. Agent’s] testimony before the grand jury, is not immune as a discretionary function.” Id. at 1035.

Wright and Gray, represent the polar extremes, and I concur in the reasoning and the result reached in Gray. Furthermore, my analysis of other cases leads me to believe the majority of courts would also follow Gray. For example, in Caban v. United States, 671 F.2d 1230 (2d Cir.1982), the Second Circuit concluded an immigration officer’s negligent decision to detain an individual was not protected as a discretionary function. In so deciding, the Second Circuit stated the decision was not discretionary because determining whether someone is an American citizen and thus entitled to enter the United States is an “objectively verifiable fact.” Id. at 1233. Significantly the Caban court then noted that “compared to the decision of the INS agents here, the decision of a narcotics agent as to whether there is probable cause to search, seize, or arrest raises many more competing considerations.” Id. at 1235. Similarly, in Pooler v. United States, 609 F.Supp. 198 (E.D.Pa.1985), an action based on the same undercover investigation plaintiff challenged in this case, Chief Judge Luongo reached the same result I do here.

For all of the above reasons, I find plaintiff's complaint must be dismissed.

      . As an initial matter plaintiff has argued that because he has alleged malicious prosecution and false arrest on the part of an "investigative officer,” section 2680(h) applies to the exclusion of the discretionary function exception of section 2680(a). However, for the reasons expressed by the United States Court of Appeals for the District of Columbia, I refuse to adopt such a construction of the statute. See Gray v. Bell, 712 F.2d 490, 507-08 (D.C.Cir.1983). See also, Caban v. United States, 671 F.2d 1230, 1234 (2d Cir. 1982) ("We do not think, however, that either section should be read to eviscerate the other.”).

      . Even prior to Varig Airlines, the Third Circuit characterized the planning level-operational level distinction as an ineffective "semantic attempt to decide in which category [a] case falls.” Bernitsky v. United States, 620 F.2d 948, 951 (3d Cir.1980). However, if there did exist a question as to the appropriateness of the test in the Third Circuit, it has now been definitively laid to rest by Varig Airlines and General Public Utilities. See Johnston v. United States, 597 F.Supp. 374, 434 (D.Kan.1984). (“The Supreme Court rejected the planning level/operational level line of cases adopted by various courts”); Rulli v. United States, 581 F.Supp. 1502, (W.D. Pa.1984) (quoting Griffin v. United States, 500 F.2d 1059, 1064 (3d Cir.1974) (“In the Third Circuit the ‘litmus test’ is not merely whether judgment was exercised but also whether the nature of the judgment called for policy considerations”).

      . The issue of negligence, however, "is not relevant to the discretionary function inquiry” because if discretionary even negligent conduct is protected. General Public Utilities Corp. v. United States, 745 F.2d 239, 243 (3d Cir. 1984).

      . Both of these actions were found barred by the discretionary function exception.


author: McRAE, Chief Judge.

text:
    CAREFREE VACATIONS, INC., Plaintiff, v. Barbara BRUNNER, Defendant.
    No. 85-2372-MB.
    United States District Court, W.D. Tennessee, W.D.
    July 15, 1985.
    Judgment Granting Permanent Injunction July 19, 1985.

      Sam L. Crain, Burch, Porter & Johnson, Memphis, Tenn., Herbert A. Rosenthal, Hausman & Rosenthal, Washington, D.C., for plaintiff.
    Carlton Barnes, Memphis, Tenn., Dale A. Cooter, Washington, D.C., for defendant.
   ORDER ON MOTION TO DISMISS AND MOTION FOR SUMMARY JUDGMENT

McRAE, Chief Judge.

This case involves a dispute over the interpretation of the terms of an “Aircraft Lease-Purchase Agreement” (“the agreement”) and in particular, those terms pertaining to the exercise by the plaintiff, Carefree Vacations, Inc. (“Carefree”), of an option to purchase from the defendant, Barbara Brunner, the aircraft which was the subject of the agreement. Defendant purchased the aircraft from plaintiff on January 15, 1985. In the contract, defendant agreed to give plaintiff sixty (60) days to purchase the plane back from defendant. The last day of the sixty-day period ended on a Saturday, and plaintiff did not tender payment until the following Monday. Defendant now contends the payment was untimely and plaintiff no longer has an option to purchase.

Presently before the Court are defendant’s motion to dismiss and plaintiff’s motion for partial summary judgment. Both parties have responded to the respective motions, and oral arguments have been heard.

MOTION TO DISMISS

Defendant Brunner moves to dismiss the instant action under Rule 12(b)(3) of the Federal Rules of Civil Procedure for improper venue. The motion is based on paragraph twenty of the agreement which provides:

This agreement shall be interpreted in accordance with and performance shall be governed by the laws of the State of Texas. Jurisdiction and venue in the event of a lawsuit shall be in MeLennam County, Texas.

Thus, the question presented is whether this contractual venue provision should be enforced by this Court.

Courts are split on whether the enforceability of forum selection clauses in diversity cases is a matter that federal law governs or whether application of state substantive law is appropriate. Compare Taylor v. Titan Midwest Const. Corp., 474 F.Supp. 145, 147 (N.D.Tex.1979) and St. Paul Fire & Marine Insurance Co. v. Travelers Indemnity Co., 401 F.Supp. 927, 929 (D.Mass.1975) (both looked to federal law) with Leasewell Ltd. v. Jake Shelton Ford, Inc., 423 F.Supp. 1011, 1015 (S.D.W.Va. 1976) (held that state law must govern the propriety of enforcing such clauses).

The Court, however, need not reach this issue here, for as defendant correctly asserts, Tennessee state substantive law that arguably would apply herein is in substantial conformity with the federal approach to forum selection clauses. The law of Tennessee as well as federal decisional law acknowledges that forum selection clauses are prima facie valid and should be enforced unless the party resisting application of the clause can clearly show that enforcement would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching. M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972); In Flight Devices v. Van Dusen Air, Inc., 466 F.2d 220, 234 n. 4 (6th Cir.1972); Dyersburg Mach. Works v. Rentenbach Eng. Co., 650 S.W.2d 378 (Tenn.1983). See also Central Contracting Co. v. Maryland Casualty Co., 367 F.2d 341 (3rd Cir.1966).

Thus, the burden of proof is upon the resisting party (plaintiff herein) to demonstrate that the forum selection clause does not pass the two-prong test outlined above. The Court notes that if plaintiff makes a strong showing with regard to either (or both) of the standards, the forum clause should not be enforced.

Plaintiff first contends that the clause is invalid because the contract was presented to plaintiff in an atmosphere of exigency and plaintiff had no opportunity to negotiate changes. In support thereof plaintiff contends Carefree Vacations was in serious financial straits and its only option was to sign the contract or loose its plane to an earlier secured lender. While the allegations advanced by plaintiff indicate that plaintiff was experiencing emergency conditions, they plainly fail to reach the level of a claim or defense of undue influence or overreaching. The Court finds that plaintiff has submitted no evidence to support a finding that the contract sued upon is other than one which was fairly negotiated at arm’s length and in a businesslike fashion between the parties and voluntarily entered into by plaintiff in the hope of reaping an economic benefit. The Court therefore concludes that the forum selection agreement cannot be avoided by plaintiff under the first claim of “invalidity.”

Turning to the “second prong” of the test, plaintiff contends that the forum selection clause is unreasonable. Courts have narrowly construed what is unreasonable or unfair, holding that “an agreement is unreasonable only where its enforcement would under all circumstances existing at the time of litigation seriously impair plaintiff’s ability to pursue his cause of action. In Flight Devices, supra. Factors considered by courts in examination of the reasonableness of contractual venue provisions include:

(1) which state law governs the contract;
(2) the residence of the parties and witnesses;
(3) place of execution and/or performance of the contract;
(4) public policy;
(5) availability of remedies in the selected forum; and
(6) inconvenience or injustice.

Taylor, 474 F.Supp. at 149; Furbee v. Vantage Press, Inc., 464 F.2d 835 (D.C.Cir. 1972); Gaskin v. Stumm Handel Gmbh, 390 F.Supp. 361 (S.D.N.Y.1975).

Upon consideration of the record and the arguments propounded herein, the Court does not find that Texas has a reasonable relationship to this transaction. Neither of the parties live or do business in Texas. The contract was executed in Illinois and Tennessee (plaintiff signed in Illinois; defendant signed in Tennessee). Plaintiff contends that only one witness will be from Texas (Larry Walston). Defendant asserts that most, if not all, of the probable witnesses live in Texas. However, defendant does not identify the witnesses with particularity or assert to what matters these purported witnesses are expected to testify. Defendant also points to the fact that payments were wired to Texas. However, this Court does not find that the fact that payments were wired through Texas enroute to Illinois gives Texas the requisite relationship. In light of the lack of contact Texas had with the instant transaction, plaintiff rightly fears the possibility of being deprived of its day in Court.

Accordingly, defendant’s motion to dismiss for improper venue is hereby denied.

MOTION FOR PARTIAL SUMMARY JUDGMENT

Also before the Court is plaintiff’s motion for partial summary judgment. This motion is grounded upon plaintiff’s contention that because the final option exercise date of the agreement fell on a Saturday, plaintiff had until the following Monday to exercise the option to purchase. In support thereof, plaintiff avers that under Tennessee, Texas, and Illinois law, when an option to exercise payment falls on Saturday, Sunday, or a holiday, performance is delayed until the next business day.

In her response, defendant contests plaintiff’s averment and submits instead that none of the three states, Texas, Tennessee, or Illinois, would apply plaintiff’s theory in the instant matter because the statutes relied upon are applicable to times to act pursuant to other statutes and not option contracts.

The first question presented under plaintiff’s motion for partial summary judgment is whether the choice-of-law provision—“this agreement shall be interpreted in accordance with and performance shall be governed by the laws of the State of Texas”—in paragraph twenty (20) is enforceable. It is uncontroverted that the transaction in this case is multi-state. The negotiations and performance of the contract, including the contract dispute giving rise to the instant lawsuit did not occur in any one state. In a multi-state transaction, the contracting parties’ choice-of-law provision is valid absent contravention of public policy of the forum state or a showing that the selected forum does not bear a reasonable relationship to the transaction. Woods-Tucker Leasing Corporation of Georgia v. Hutcheson-Ingram Development Company, 642 F.2d 744, 749-53 (5th Cir.1981). Plaintiff pointed to the Uniform Commercial Code of Texas, Tennessee and Illinois to substantiate that the choice-of-law forum must have a substantial relationship to the transaction in order for the provisions to be enforceable. All three states’ Uniform Commercial Code provide:

Except as provided hereafter in this section when a transaction bears a reasonable relation to this state and also to another state or nation, the parties may agree that the law either of this state or of such other state or nation shall govern their rights and duties. Failing such agreement, this title applies to transactions bearing an appropriate relation to this state, (emphasis added)

Vernon’s Texas Codes Annotated, Business and Commerce, Volume 1, §§ 1.102 and 1.105; Tennessee Code Annotated § 47-1-105; Illinois Ann.Stat., Ch. 26, §§ 1-102 and 1-105. Thus, even application of any of the three states’ UCC would have prescribed the same “substantial relation” test.

Upon review of the testimony, the record, and consideration of the oral arguments, the Court finds that the matter at bar bears no “substantial relation” to Texas. The contract was executed in Tennessee and Illinois. The bill of sale transferring the aircraft to defendant Brunner was signed in Illinois. The payments by Carefree actually came to rest in defendant’s bank in Granite City, Illinois. The aircraft was based in Chicago, Illinois. The parties to the contract were residents of Illinois for plaintiff and Tennessee for defendant. Neither party maintained a place of business in the other party’s state, and neither maintains a place of business in Texas. The record reflects that Texas is defendant’s brother’s place of residence and business. Defendant, however, steadfastly maintains that her brother, Mr. Walston, was not her agent in the transaction. Further, in the memorandum in support of her motion to dismiss, defendant’s only reference to her brother was that he delivered the contract to plaintiff. Given defendant’s denial of her brother’s involvement, any nexus with Texas, is extremely remote and insubstantial.

Accordingly, the Court finds the choice-of-law provision unenforceable. Inasmuch as this is an action based on diversity of citizenship, the Court is bound by the conflict of law rules of the forum in which it sits. Boatland, Inc. v. Brunswick Corp., 558 F.2d 818, 821 (6th Cir.1977). Here the forum state is Tennessee, and clearly the conflict of laws of Tennessee applies.

In determining contractual rights and obligations, Tennessee adheres to the principle that the substantive rights of the parties to a contract are to be governed by the law which the parties intended. In the absence of a manifestation of contrary intention, the parties are presumed to have contracted pursuant to the laws of the state in which the contract was entered into. Boatland, Inc. v. Brunswick Corp., 558 F.2d 818 (6th Cir.1977) citing Deaton v. Vise, 186 Tenn. 364, 210 S.W.2d 665 (1948). Since the choice-of-law provision which arguably expressed the parties’ intent was found inapplicable, the Court must look to the place of making. As stated earlier, the contract was executed in Tennessee (place defendant signed) and Illinois (place plaintiff signed). Inasmuch as Tennessee and Illinois law are in substantial conformity on how to compute the final exercise date of an obligation when that date ends on a Saturday, this Court need not engage in a balancing of contacts to determine which law applies.

Tenn. Code Ann. § 1-3-102 provides in pertinent part:

... the time within which any act provided by law is to be done, shall be computed by excluding the first day and including the last, unless the last day is a Saturday, a Sunday, or a legal holiday, and then it shall be excluded.

Defendant Brunner contends that this statute is not applicable because a statutory construction provision does not apply to private contracts. The Court disagrees. Tennessee has expressly held that Tenn. Code Ann. § 1-3-102 is applicable to private contracts. Dobson & Johnson, Inc. v. Waldron, 47 Tenn.App. 121, 336 S.W.2d 313, 318 (1960) citing Allen v. Effler, 144 Tenn. 685, 695, 235 S.W. 67, 70 (1921). Further, defendant’s reliance on Adams v. Swift, 500 S.W.2d 437, 441 (Tenn.Ct.App. 1973) and Jones v. Horner, 260 S.W.2d 198, 199 (Tenn.Ct.App.1953) is misplaced inasmuch as the courts therein found plaintiffs did not comply with the option agreement because of the manner in which they extended acceptance (sent notice of intent to purchase instead of tendering payment), not because extending a Saturday due date to Monday pursuant to the statutory construction provision was inapplicable to private contracts. Accordingly, this Court finds plaintiff’s exercise of the option to purchase was timely.

The record reflects that Illinois has a statutory provision which excludes Saturdays, Sundays, and holidays in computing the last day of a period (Ill.Stat.Ann. Ch. 1 § 1012). While Illinois case law has not expressly held that the provision is applicable to private contracts, it lends a strong inference that the provision is applicable thereto. See Nabor v. Occidental Life Ins. Co. of Calif., 78 Ill.App.3d 288, 33 Ill.Dec. 543, 546, 396 N.E.2d 1267, 1270 (1979) (the court held that parties could stipulate otherwise but noted that the rule set forth in the Illinois statutes was the general rule as to the computation of time).

Finally, defendant alternatively submits that partial summary judgment is inappropriate because even if the applicable statutory construction and common law extended the due date until Monday, she did not in fact receive the payment in Illinois until that Wednesday, two days later than the Monday due date. This argument is merit-less. Plaintiff submitted affidavits from the Federal Reserve Bank (bank used to make the wire transfers) substantiating that the two lease payments were timely and that the option payment was made on March 18, 1985, which was timely pursuant to the law of Tennessee. The telex that was submitted as an affidavit contained the dollar amount, the name of the receiving bank and the name of defendant Brunner as recipient. Clearly this affidavit supports plaintiff’s assertion that since plaintiff had wired the previous lease payments to defendant by way of Texas, plaintiff similarly was to wire the option payment via Texas. Additionally, defendant conceded in her affidavit that she knew the money was being wired by way of Texas. It follows that where, as here, defendant has submitted nothing other than her personal self-serving affidavit to substantiate that the payments were to be paid directly to her Tennessee or Illinois bank account and the contract is silent as to the exact manner payment is to be tendered, defendant will not be heard to argue untimeliness when the money was in fact received in Texas on the due date and not in Illinois. The fact that the previous payments had been tendered to Texas and defendant had offered no objection clearly establishes that payment through Texas was the parties’ course of dealing.

In light of the foregoing, plaintiff’s motion for partial summary judgment is granted.

This constitutes the Court’s written ruling which was given orally at the end of the hearing on July 5, 1985. Counsel for the plaintiff was instructed to prepare a judgment based upon the Court’s ruling.

JUDGMENT GRANTING PERMANENT INJUNCTION

On July 5, 1985, this Court heard plaintiff’s motion for summary judgment. The Court also heard and denied defendant’s motion to dismiss on the basis of the forum selection clause. The Court declined to honor such provision on the basis that Texas has insufficient relationship to this transaction to warrant enforcement of the clause. For the reasons set forth in the Court’s order entered this date, the Court grants plaintiff’s motion for partial summary judgment and enters judgment for the plaintiff subject to the following terms and conditions.

1. In accordance with the provisions of the preliminary injunction entered in this case entered May 7, 1985, plaintiff shall tender to the defendant the sum of $290,-000; upon said tender, the defendant shall execute and deliver a bill of sale and whatever other documents are necessary to effect the transfer of a Boeing 707-331B, N-8733, Serial No. 20062, without encumbrance or liens or clouds on title from the defendant to Carefree Vacations, Inc. Defendant shall further execute whatever documents which may be subsequently needed by plaintiff to cure any defects in title to said aircraft. The $290,000 shall be paid within thirty days of July 5, 1985.

2. Plaintiff shall make the lease payment due July 8, 1985, pursuant to this Court’s preliminary injunction entered May 7, 1985. Plaintiff shall, at the time it tenders the $290,000 to defendant, pay defendant, on a pro rata basis, rent on the aircraft at the rate of $25,000 per month from July 6, 1985.

3. The parties may submit motions requesting the Court to reconsider and readjust certain matters in the order entered May 7, 1985, granting a preliminary injunction on which the Court reserved the right to reconsider after a decision on the merits. These matters include interest owed by Barbara Brunner to Carefree Vacations (Para. 12) and whether plaintiff is entitled to recover any portion of the $25,000 per month rental payments made to defendant (Para. 4).

4. Upon plaintiff’s tendering the $290,-000 to defendant, the lease of the aircraft between plaintiff and defendant as created by this Court’s order entered May 7, 1985, shall terminate.