author: PATRICK F. KELLY, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. George L. CARSON, Defendant.
    No. 83-10049-01.
    United States District Court, D. Kansas.
    Aug. 1, 1985.

      Benjamin L. Burgess, Acting U.S. Atty., Wichita, Kan., for plaintiff.
    Michael S. Holland, Russell, Kan., for defendant.
   MEMORANDUM AND. ORDER

PATRICK F. KELLY, District Judge.

This matter involves a motion to suppress in a case in which the defendant is charged with unlawful possession of protected migratory birds in excess of the daily bag limit, in violation of 16 U.S.C. § 703. This matter was originally before the Court on the defendant’s appeal from the Magistrate’s orders, in which the Magistrate held that the defendant waived his right to raise a motion to suppress, and found the defendant guilty. This Court found the Magistrate abused his discretion in refusing to consider the merits of the motion to suppress, found the search unlawful, granted the motion to suppress, and entered judgment of acquittal. The United States appealed this Court’s order to the Tenth Circuit Court of Appeals. The Court of Appeals reversed this Court, holding the defendant’s consent to a search following an earlier illegal search purged the second search of the taint of illegality and validated the second search for Fourth Amendment purposes. The Court of Appeals remanded to this Court for a fact finding as to the validity of the defendant’s consent. This Court heard oral argument on the consent question on July 12, 1985, and now finds there was a full and voluntary consent to the second search and reinstates the conviction of the defendant.

The facts of this case are that defendant George L. Carson, at the time of the incident, was employed as a wildlife biologist by the Kansas Fish and Game Commission. On September 17, 1982, Mr. Carson was hunting doves. Joe Branick, a Russell County Deputy Sheriff, was investigating the theft of some shotgun shells and approached Mr. Carson, who was in a wheat stubble field sitting on a five-gallon pail hunting turtle doves. Mr. Branick observed Mr. Carson shoot nine turtle doves. When Mr. Carson walked into the field, Mr. Branick searched Mr. Carson’s pail, looking for evidence of the stolen shells. Mr. Branick observed several freshly killed doves on top of a hunting vest, lifted the hunting vest, and observed six dressed doves. Mr. Branick had no cause to believe that Mr. Carson had killed more than his daily bag limit at the time Mr. Branick searched the bucket. (Docket No. 3, p. 23.) As Carson and Branick left the field, Branick observed feathers and other remains of doves clinging to weeds and on the ground in an area where Mr. Carson picked up a shotgun he had left earlier that day.

Mr. Branick left Mr. Carson and contacted Doug Sonntag, a state fish and game officer, to inquire whether Mr. Carson had exceeded his daily bag limit. Mr. Branick and Mr. Sonntag returned to the field and asked Mr. Carson if they could look inside his hunting pail. Mr. Carson consented. Mr. Sonntag removed 12 freshly killed doves from on top of the vest, lifted up the vest and removed 11 dressed doves. The Kansas regulations provide for a daily bag limit of 12 doves and a possession limit of 24: The Magistrate found that all 23 doves had been killed the same day, and found the defendant guilty of the charge.

The Tenth Circuit Court of Appeals, in reversing this Court’s suppression of the evidence, held that the defendant’s consent, if voluntary, vitiated any illegality of the first search. The Court of Appeals stated as follows:

The district court correctly held that the magistrate should have granted relief from the waiver provisions of Rule 12(f). The search by Branick when he picked up the vest to reveal the six dressed doves was in violation of the Fourth Amendment in that the dressed doves were not in plain view.

United States v. Carson, 762 F.2d 833, 835 (10th Cir.1985). The Court of Appeals then went on to discuss the effect of the defendant’s consent to the subsequent search. The Court stated as follows:

A search conducted pursuant to a voluntary consent is valid for Fourth and Fourteenth Amendment purposes.
* * * * * *
Assuming that the first search was illegal, defendant’s consent purged the second search of any taint from the first search and validated the second search for Fourth Amendment purposes.

Id. at 836, citing United States v. Fike, 449 F.2d 191, 192-93 (5th Cir.1971). The Court remanded, stating:

Because the validity of the second search involves a question of fact, the voluntary consent to the second search, the district court, on remand, may wish to remand the ease to the magistrate for determination of the facts.

Id. at 837.

I.

The Court first addresses the question of fact concerning the voluntariness of the consent to the second search. At the July 25, 1985 oral argument, counsel for both parties agreed that the trial record was sufficient for this Court to make a finding of fact as to whether Mr. Carson’s consent was voluntary.

The United States points to three places in the record in which Mr. Carson consented to the search. In Mr. Carson’s letter of September 9, 1982, to Steve Sorenson, Mr. Carson wrote, “He [Mr. Branick] then asked if they could search my truck. I said, sure!” (Govt. Tr. Ex. 11, p. 3.) At trial, Mr. Carson testified, “Well ... Mr. Branick asked if he could ... if they could look into my pickup and I said,.well certainly....” (Tr. Vol. Ill, p. 61.) Mr. Carson testified further, “... Detective Branick was ransacking my truck. He asked me to unlock my tool box, which I did gladly, while they were searching.” {Id. at 62.)

The defendant argues that the failure of the county deputy sheriff and the state game protector to inform Mr. Carson of the initial search deprived defendant of his ability to make a voluntary and intelligent consent to the search.

A search conducted pursuant to consent is an exception to the requirements of both a warrant and probable cause. Schneckloth v. Bustamante, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Valid consent must be freely and voluntarily given, and not the result of coercion or duress, express of implied. Id. Voluntariness is a question of fact to be determined from the totality of the circumstances. Id.; United States v. Shields, 573 F.2d 18 (10th Cir.1978). One factor in determining whether the individual consented is whether he knew or was advised of his right to refuse the search. Id. Nonetheless, the government is not required to advise an individual of his right to withhold consent in order to find a voluntary consent. Shields, supra. Moreover, the prosecution is not required to demonstrate as a prerequisite to establishing voluntary consent, that the individual had knowledge of or was advised of his right to refuse. Schneckloth, supra.

The law, as stated above, is that the government need not advise an individual of his constitutional right to withhold consent to search. There is no authority for the defendant’s argument that the government must disclose the facts, for example, of prior surveillance in order for a subsequent consent to be voluntary. On the facts of the case at bar, this Court rejects defendant’s assertion that the county sheriff and state game protector were required to advise Mr. Carson of the initial search in order for Mr. Carson’s consent to be knowing and voluntary.

This Court, having reviewed the transcript and record of trial proceedings before the Magistrate, and with particular reference to the testimony and evidence quoted above, finds that under the totality of the circumstances, Mr. Carson’s consent was the product of his own free will and unconstrained choice. The Court finds that Mr. Carson’s consent to the search was voluntary.

II.

The defendant additionally contends that the Tenth Circuit Court of Appeals remanded the case to this Court to make a fact finding not solely on the issue of whether the consent was voluntary, but also as to all facts surrounding the validity of the consent. The defendant argues that even if this Court finds the consent was valid, under the facts of this case the consent was not an independent act sufficient to break the causal connection between the primary illegality and the evidence found as a result of the second search. This Court agreed to consider the defendant’s argument concerning attenuation of the taint, requested the United States to submit a reply brief on the issue, and entertained oral argument on the issue.

The defendant argues that the challenged evidence was the direct result of the state’s illegal conduct because the officers requested defendant’s consent on the basis of what Branick illegally discovered in the first search, and therefore, the consent was not sufficiently independent of the illegality to break the causal connection between the illegality and the discovered evidence. The defendant argues that the challenged evidence is a direct result of the government’s exploitation of the initial illegal search, a taint the defendant’s consent cannot cure. The defendant strenuously argues that the challenged evidence was the direct result of illegal government conduct because the second search yielded the identical evidence as the earlier illegal search. Defendant argues that a consent cannot cure the illegal taint if what is ultimately discovered and offered at trial is the very same evidence discovered as a result of illegal governmental intrusion.

On the other hand, the United States argues that a consent, so long as it is voluntary, will always break the causal connection between any illegality and any evidence discovered subsequent to the consent. The United States argues that consent is an independent act of the defendant’s free will, determined by the defendant’s actions and state of mind, and is totally unrelated to any conduct — legal or illegal — of government officials. The United States totally rejects defendant’s argument that there is any distinction whether the evidence discovered pursuant to illegal conduct is the “identical evidence” as that discovered pursuant to lawful means, or whether evidence discovered pursuant to illegal conduct is “new or different evidence” as that discovered pursuant to lawful means. The United States asserts, moreover, that under the inevitable discovery doctrine, the doves discovered as a result of the initial illegal search would have inevitably been discovered as a result of defendant’s later consent.

The Court of Appeals for the Tenth Circuit, in the appeal of the ease at bar, relied on the case of United States v. Fike, 449 F.2d 191 (5th Cir.1971), in holding that defendant’s consent, if voluntary, purged the second search of any taint from the first search and validated the second search for Fourth Amendment purposes. United States v. Carson, 762 F.2d 833, 836 (10th Cir.1985).

In United States v. Fike, the police conducted two separate searches; articles discovered pursuant to the first search were not introduced at trial; evidence discovered pursuant to Fike’s consent was different than the items discovered in the first search, and evidence discovered pursuant to the second consensual search was introduced and admitted at trial. The Fifth Circuit in Fike held that although the police would not have asked Fike to consent to a search “but for” the first illegal search, evidence discovered as a result of the second consensual search was admissible because Fike’s consent purged the taint. The Fifth Circuit stated as follows:

It is possible that “but for” the first search the police would not have taken the car, would not have taken the defendant into custody, and would not have conducted the second search which yielded the challenged evidence. However, assuming, but not deciding, that the first search was illegal, we hold that the evidence gained as a result of the second search, the only evidence of which the defendant complains, was admissible. This is so because the voluntary consent of the defendant to the second search, found by the district court and affirmed by this Court, was an independent act sufficient to break the causal connection between the alleged primary illegality and the evidence found as a result of the second search and admitted at trial. The consent not only, as discussed above, served to validate the second search for Fourth Amendment purposes but also purged the second search of the “primary taint.”

Id. at 193.

Defendant Carson contends that the facts of the instant case are distinguishable from the facts of United States v. Fike and require a contrary legal result. Mr. Carson argues that in Fike an initial illegal search yielded evidence which caused the police to secure the defendant’s consent to a second search which yielded different, admissible evidence. In the case at bar, on the other hand, the initial illegal search yielded the doves in excess of the daily bag limit, this illegally discovered evidence motivated the police to secure Mr. Carson’s consent to a second search, and the second search yielded the same proceeds and the police did not “discover” anything they didn’t already know.

Mr. Carson argues that the better rule to govern his case under the facts is that presented in United States v. Melendez-Gonzalez, 727 F.2d 407 (5th Cir.1984), which the Fifth Circuit decided ten years after its decision in Fike. In Melendez-Gonzalez, border patrol agents in Texas stopped a car that was 60 miles from the United States-Mexico border with no reason to suspect that the car was carrying illegal aliens or contraband. Using a flashlight, the agents peered into a small hole in the trunk and observed a burlap-covered object. The agents asked the driver to open the trunk, but he refused. The agents used a tire tool to partially spring the lid of the trunk, and observed a large burlap sack and smelled marijuana. The agents took the driver and his passenger to the station and read them their Miranda rights. While in custody, the driver signed a consent to search form. The agents pried open the trunk and found 21 pounds of marijuana. The trial court held the initial stop and subsequent search were legal, or in the alternative, that the voluntarily signed consent form vitiated any illegality of the initial stop and search. The Fifth Circuit reversed, finding that both the stop and the search were illegal, and that the consent was too late to vitiate the illegality because the illegal stop and search had already been conducted by the time the consent form was signed. The Fifth Circuit stated as follows:

We find the district court’s conclusion with regard to consent incorrect as a matter of law. We do not dispute the fact that defendant actually signed the consent form, or even that he did so voluntarily, further, we accept the well-established rule that “a search conducted pursuant to consent is excepted from requirements of probable cause and warrant.” There is no authority, however, which justifies an earlier illegal search based upon a later consent to an additional search.
# * >J< * * *
Since for all practical purposes, the search was conducted on the highway, the consent form which defendant signed at the station simply came too late.

Id. at 413-14 (citations omitted).

Mr. Carson argues that the facts of his case are consistent with the facts of Melendez-Gonzalez in that the second search pursuant to his consent yielded the same evidence discovered by Branick in his initial illegal search, and therefore, the evidence must be suppressed.

Mr. Carson argues that further authority for his argument is the recent United States Supreme Court case of Segura v. United States, — U.S. -, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984). The Court of Appeals held that evidence discovered in plain view subsequent to an initial illegal entry must be suppressed, but evidence later discovered pursuant to a search warrant was admissible. The Supreme Court held that evidence discovered in the second search which was based upon a valid search warrant issued wholly on information known to the police before their initial illegal entry was admissible because the evidence was discovered from an independent source.

' However, the issue of the admissibility of the evidence discovered first in plain view following the initial illegal entry, and again discovered along with other evidence pursuant to the warrant, was not before the Supreme Court. Id., at-n. 4, 104 S.Ct. at 3385 n. 4, 82 L.Ed.2d at 607 n. 4. Thus, as the United States points out in its brief, although evidence discovered pursuant to illegal conduct was treated differently by the lower courts than evidence discovered pursuant to the warrant, this distinction was not a basis for the Supreme Court’s ruling. Although the practical result of the case is consistent with the defendant’s argument, it was not a legal rationale employed by the Supreme Court, and for this reason does not directly support Mr. Carson’s argument. The Segura case, nevertheless, is an example of the independent source exception to the exclusionary rule, and clearly points out the requirement that in order for some intervening act to purge the illegality, it must come from a source wholly unconnected and wholly unrelated to the initial illegal conduct.

Finally, Mr. Carson argues that even if his consent was voluntary, his consent derived from the government’s exploitation of its prior illegal activity and, under the facts of this case, his consent was not sufficiently independent of that illegality to be purged of the primary taint. Mr. Carson refers to the case of McGinnis v. United States, in which the court stated as follows:

A federal agent cannot participate in an unlawful search, and then on the basis of what he observed in the course of that search, and on that basis alone, go to the United States Commissioner and swear out a search warrant. Such a search warrant, and the evidence procured in the course of a search thereunder, would be merely the illegal product of a previous unlawful search by federal authorities ____

227 F.2d 598, 603 (1st Cir.1955). Mr. Carson further argues, relying on United States v. Caldwell, 750 F.2d 341 (5th Cir.1984), as follows:

The test for determining whether evidence is “fruit of the poisonous tree” is “whether, granting the establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”

Id. at 343, citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

On the other hand, the United States argues that in spite of any illegality of the first search, the evidence is admissible under the inevitable discovery doctrine, citing the recent United States Supreme Court case of Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). The inevitable discovery doctrine means that evidence that is the product of illegal governmental conduct is nonetheless admissible if the prosecution establishes by a preponderance of the evidence that the information or evidence ultimately or inevitably would have been discovered by lawful means. In Nix, the defendant Williams was in custody, being transported to detainment, and there was an agreement between Williams’ counsel and the police and prosecution that Williams would not be questioned in the absence of counsel. Nonetheless, when police were transporting Williams, the police initiated a casual conversation which elicited incriminating remarks from the defendant, and led the police to the body. The body was located in an area which was clearly within the area to be searched. The Court held that the evidence would have been inevitably discovered in spite of any alleged violation of the defendant’s constitutional rights, and held the evidence was properly admitted at trial.

In the case at bar, Deputy Sheriff Branick went to the area where Mr. Carson was hunting because Mr. Branick was investigating the theft of some shotgun shells. Mr. Branick observed that the shells used by Mr. Carson were not the same number shot as those reported stolen. When Mr. Carson was away from his hunting pail, Mr. Branick searched the pail. Mr. Branick discovered an unknown number of freshly killed doves and about six cleaned or dressed doves. The United States concedes that this was an illegal search. Mr. Branick observed Mr. Carson shoot nine doves. As Mr. Branick and Mr. Carson were walking out of the field, Mr. Branick observed the remains of doves in an area where Mr. Carson picked up a shotgun he had left earlier. Mr. Branick testified he did not know from how many doves the remains came. Mr. Branick was not a game warden. Mr. Branick had no idea of what the daily bag limit was. The Court must determine, based on Mr. Branick’s observation of Mr. Carson shooting nine doves and his observation of dove remains coming from an unknown number of doves, and without the benefit of Mr. Branick’s illegal search, whether Mr. Branick would have inevitably secured Mr. Carson’s consent to search his bucket. This Court finds that a deputy sheriff’s observation of an individual shooting nine doves and the remains of some unknown number of doves in weeds would not be sufficient reason for a deputy sheriff who had no knowledge of the daily bag limit to request consent to search a hunter’s pail. This Court finds that the United States has failed to prove by a preponderance of the evidence that Mr. Branick or Mr. Sonntag would have requested consent to search the hunting pail absent the illegal search, and finds that they would not have inevitably discovered the 23 doves. Thus, this Court expressly finds that the inevitable discovery doctrine does not apply to the facts of this case.

In the final analysis, this Court views the issue as whether a voluntary consent to search will always constitute a sufficient independent act to break the causal connection between illegal governmental conduct and the challenged evidence. The Tenth Circuit Court of Appeals in the instant case stated, “[D]efendant’s consent purged the second search of any taint from the first search and validated the second search for Fourth Amendment purposes.” 762 F.2d at 836, citing United States v. Fike. Nevertheless, the Fifth Circuit Court of Appeals, in a case decided 10 years after it decided Fike, held that a voluntary consent given after an illegal search did not purge the taint when the consensual search yielded the same evidence previously discovered illegally. The Fifth Circuit stated, “There is no authority, however, which justifies an earlier illegal search based upon a later consent to an additional search.” Melendez-Gonzalez, supra, at 414. This Court believes the facts of this case are governed by the Melendez-Gonzalez case. Specifically, under the facts of the case at bar, this Court finds that the challenged evidence derived directly from the first illegal search; Carson’s consent was not independent of the illegality because the officers would not have requested consent but for the first illegal search; and defendant’s consent, however voluntary, did not break the causal connection between the first illegal search and the challenged evidence discovered in the second search.

Nevertheless, this Court is hardly in a position to reverse the Tenth Circuit Court of Appeals. It is possible that when an individual’s consent to a governmental search is the product of that individual’s free will, the consent will always be an act so independent of the illegal governmental conduct that voluntary consent alone will vitiate the taint of the prior illegality. When, however, as the Court has found in this case, the government’s request for consent to search is motivated by critical information ascertained by the prior illegal conduct of the government, this Court questions how the individual’s voluntary consent alone can realign the government’s actions within the bounds of the Fourth and Fourteenth Amendments. Most importantly, the Court questions a rule of law which allows the government to make a surreptitious entry into the home of a citizen, conduct an illegal wiretap or perform any other illegal conduct invasive of a citizen’s privacy, and then, on the basis of the information gleaned from this illegal conduct, cajole the consent of the unwitting citizen, and then find that incriminating evidence discovered is admissible evidence in a criminal prosecution of that citizen. This Court believes that such law would fly directly in the face of the Fourth Amendment. Indeed, the Fourth Amendment protects private citizens against this very kind of governmental interference.

Nevertheless, this Court recognizes that an individual’s consent, when it is knowing and completely voluntary, may be in itself an independent act sufficiently removed or attenuated from the illegal conduct of the government to permit the use of the discovered evidence in a criminal trial against that individual. In spite of the severe and fundamental problems this Court has with the application of such a rule to the facts of the case at bar, this Court is not in a position to reverse the Tenth Circuit Court of Appeals and must proceed with the disposition of this case in accordance with the Circuit Court's remand.

Therefore, the only issue which is actually before this Court is the factual determination of whether Mr. Carson voluntarily consented to the search, and this Court finds that Mr. Carson gave his full and voluntary consent to the search.

IT IS THEREFORE ORDERED this 31 day of July, 1985, in accordance with the decision of the Tenth Circuit Court of Appeals, the defendant’s conviction is affirmed.


source: Caselaw Access Project

author: McMANUS, District Judge.

license: Public Domain

text:
    UNITED STATES JAYCEES, a non-profit Missouri corporation, Plaintiff, v. CEDAR RAPIDS JAYCEES, a non-profit Iowa corporation, Defendant.
    No. C 82-176.
    United States District Court, N.D. Iowa, Cedar Rapids Division.
    Aug. 1, 1985.

      Wm. Meardon, Thos. D. Hobart, Iowa City, Iowa, Carl D. Hall, Jr., Tulsa, Okl., for plaintiff.
    Thos. Pence, Carl Schuettpelz, D.J. Smith, Cedar Rapids, Iowa, for defendant.
   McMANUS, District Judge.

ORDER

This matter is before the court on cross-motions for summary judgment, filed March 14, 1985 and April 19, 1985, and plaintiff’s resisted motion for certification of question of law, filed June 7, 1985. Motion to certify question denied; summary judgment granted for defendant on plaintiff’s complaint; defendant’s counterclaims dismissed without prejudice.

Plaintiff moves to certify to the Iowa Supreme Court the question of whether the United States Jaycees (USJ) is a public accommodation under Iowa law. The motion will be denied since the Iowa Supreme Court has recently discussed when a membership organization is a public accommodation in Good v. Iowa Civil Rights Commission,, 368 N.W.2d 151 (Iowa 1985).

Both parties have moved for summary judgment on plaintiff’s action for trademark infringement.

Summary judgment should not be entered unless the record indicates that there is no “genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” FRCP 56(c). It is a procedure which advances the salutary objective of avoiding useless, expensive and time-consuming trials where there is actually no genuine, factual issue remaining to be tried. Anderson v. Viking Pump, 545 F.2d 1127, 1129 (8th Cir.1976); Lyons v. Board of Education of Charleston, 523 F.2d 340, 346, 347 (8th Cir.1975); see also Boulies v. Ricketts, 518 F.Supp. 687, 690 (D.C.Col.1981). Once a motion for summary judgment has been made and properly supported, the party opposing summary judgment may not rest upon the mere allegations or denials of his pleadings but his response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial. Burst v. Adolph Coors Co., 650 F.2d 930, 932 (8th Cir.1981); Security National Bank v. Belleville Livestock Commission Co., 619 F.2d 840, 848 (10th Cir.1980). Where the moving party establishes the absence of any genuine issue of material fact and the opposing party submits no evidence in rebuttal, summary judgment is justified. Stovall v. City of St. Louis, 614 F.2d 619, 621 (8th Cir.1980); Willmar Poultry Co. v. Morton-Norwich Products, Inc., 520 F.2d 289, 293 (8th Cir.1975).

There is no genuine issue of material fact as set forth in the court’s orders filed January 4, 1984 and March 6, 1984. In addition, the USJ passed a resolution on August 16, 1984 amending its By-laws to admit women as Individual Members in the USJ.

Pursuant to the Court of Appeals for the Eighth Circuit’s instructions, the court will consider several issues in ruling on the cross-motions for summary judgment. United States Jaycees v. Cedar Rapids Jaycees, 754 F.2d 302, 303 (8th Cir.1985).

Public Accommodation

Iowa Code section 601A.7 (1981) states: 1. It shall be an unfair or discriminatory practice for any owner, lessee, sublessee, proprietor, manager, or superintendent of any public accommodation or any agent or employee thereof:
a. To refuse or deny to any person because of ... sex ... the accommodations, advantages, facilities, services, or privileges thereof, or otherwise to discriminate against any person because of ... sex ... in the furnishing of such accommodations, advantages, facilities, services, or privileges.
Iowa Code section 601A.2(10) (1981) provides in part:
“Public accommodation” means each and every place, establishment, or facility of whatever kind, nature, or class that caters or offers services, facilities, or goods to the general public for a fee or charge, ____ Public accommodation shall not mean any bona fide private club or other place, establishment, or facility which is by its nature distinctly private, except when such distinctly private place, establishment, or facility caters or offers services, facilities, or goods to the general public for fee or charge or gratuitously, it shall be deemed a public accommodation during such period.

These sections are to be construed broadly to effectuate the purposes of the Iowa Civil Rights Act. Iowa Code § 601A.18 (1981).

USJ has seven classes of membership including Individual Members, Associate Individual Members and Local Organization Members. Prior to 1984, USJ By-law 4-2 stated:

Young men between the ages of eighteen (18) and thirty-five (35), inclusive, of Local Organization Members in good standing in this Corporation shall be considered Individual Members of this Corporation____ Such Individual Members shall be qualified by, and represented through, the Local Organization Member so long as he shall pay the dues to the Local Organization Member____

By-law 4-3 stated:

An Associate Individual Member is a business concern, association, group or individual not qualified by these By-Laws and Policy to be an Individual Member of a Local Organization Member.

Associate Individual Members can participate in various activities, programs and community projects but do not have the right to vote or hold office.

The USJ’s primary function is creating and fostering the growth of member organizations. It promotes membership recruitment within Iowa and does not limit the size of its membership. It is funded primarily through the collection of membership dues and privately sponsored programs. It collects dues from Local Organization Members, including the Cedar Rapids Jaycees (CRJ), based on the number of Individual and Individual Associate Members. USJ considers itself a leadership training organization and emphasizes the leadership development of Individual Members. It also offers personal and business development training to its. members.

Chapter 601A generally defines public accommodation as a place or facility that serves the general public. Good, 368 N.W.2d at 154. A membership organization, like USJ, is prohibited from discriminating on the basis of sex only if it offers goods and services to the general public. Id. The public can mean a group or segment of a population, while the term general public involves the whole population. Id. at 156.

The USJ provides services to the general public and therefore, is a public accommodation. Any individual, business concern, association or group is eligible for membership in the USJ as an Associate Individual Member. The Minnesota Supreme Court aptly stated: “[t]he USJ is unselective in those to whom it sells memberships; selectiveness occurs only in the privileges and benefits it accords to those holding one kind of membership rather than another.” United States Jaycees v. McClure, 305 N.W.2d 764, 771 (Minn.1981).

The USJ committed a discriminatory practice when it initiated this action and revoked the CRJ’s license to use the trademark “Jaycees” because the CRJ admitted women as Individual Members. Iowa Code § 601A.7(1) (1981).

Validity of USJ’s Revocation of CRJ’s Trademark License

The “Jaycees” trademark has become incontestable under 15 U.S.C. § 1065 and the CRJ has asserted none of the permissible defenses under 15 U.S.C. § 1115(b). However, the Lanham Act vests the court with the power to grant injunctions, "according to the principles of equity.” 15 U.S.C. § 1116. Misuse and illegal use of a trademark are grounds for denial of the limited protection that equity would otherwise afford to a trademark owner. See e.g. Phi Delta Theta Fraternity v. J.A. Buchroeder & Co., 251 F.Supp. 968, 977 (W.D.Mo.1966). A plaintiff will be disqualified from obtaining relief if it has dealt unjustly with the defendant in the very transaction upon which its cause of action is based. Shaver v. Heller & Merz Co., 108 F. 821, 834 (8th Cir.1901); see also Humble Oil & Refining Co. v. American Oil Co., 259 F.Supp. 559, 566-67 (E.D.Mo.1966).

The USJ violated Iowa law when it instituted this action and terminated the CRJ’s license to use the trademark “Jaycees” solely because the CRJ admitted women as Individual Members. Acts of invidious discrimination in the distribution of publicly available services and other advantages cause unique evils that government has a compelling interest to prevent. Roberts v. United States Jaycees, — U.S. -,-, 104 S.Ct. 3244, 3255, 82 L.Ed.2d 462, 478 (1984). When a terminated licensee shows that illegal discrimination was underlying the termination of the trademark license, it would be inequitable to grant injunctive relief.

The USJ now admits women as Individual Members and the CRJ is no longer violating the USJ By-laws. Even though the USJ revoked the CRJ’s trademark license, the CRJ continues to be a Local Organization Member of the USJ and the USJ has approved awarding its highest awards to members of the CRJ. The CRJ’s use of the mark “Jaycees” is not likely to cause public confusion since the CRJ remains a member of the USJ. The public interest in preventing trademark infringement and in preventing market confusion is outweighed in this case by the government interest in preventing invidious discrimination. Therefore, the court will grant summary judgment for defendant on plaintiff's complaint.

Jurisdiction Over Counterclaims

Defendant CRJ’s counterclaims allege claims of illegal discrimination under the public accommodation laws in Chapter 601A of the Iowa Code and Chapter 69 of the Cedar Rapids Municipal Code. Section 601 A. 16 provides that a person claiming to be aggrieved by a discriminatory practice must initially seek administrative relief by filing a timely complaint with the Iowa Civil Rights Commission. Iowa Code § 601A.16 (1981). A complainant may subsequently commence an action for relief in the district court if the complaint was timely filed and has been on file with the commission for at least 120 days and the commission has issued a release to the complainant. Iowa Code § 601A.16(1) (1981). A release shall not be issued if the Iowa Civil Rights Commission has served notice of hearing upon the respondent. Iowa Code § 601A.16(2) (1981). Defendant has not received a release to sue from the commission because the commission issued a notice of hearing. In addition, because defendant filed its complaint with the Iowa Civil Rights Commission, it is prohibited from proceeding under Chapter 69 of the Cedar Rapids Municipal Code. Iowa Code § 601A.19 (1981).

Since defendant has failed to exhaust its administrative remedies, the court lacks jurisdiction over defendant’s counterclaims. See Burlington Northern, Inc. v. Chicago and Northwestern Transportation Co., 649 F.2d 556, 558-59 (8th Cir.1981). Therefore, defendant’s counterclaims will be dismissed without prejudice. See McCarney v. Ford Motor Co., 657 F.2d 230, 234 (8th Cir.1981).

It is therefore

ORDERED

1. Motion to certify question denied.

2. Summary judgment granted for defendant on plaintiff’s complaint.

3. Defendant’s counterclaims dismissed without prejudice.


author: BEAM, District Judge.

text:
    John P. MUNNELLY, Plaintiff, v. The UNITED STATES POSTAL SERVICE, et al., Defendants.
    CV 82-0-382.
    United States District Court, D. Nebraska.
    Aug. 1, 1985.

      M.J. Bruckner, Lincoln, Neb., Richard Burton, Miami, Fla., for plaintiff.
    Lori Joan Dym, R. Andrew German, Washington, D.C., Paul Madgett, Omaha, Neb., for defendants.
   MEMORANDUM

BEAM, District Judge.

In this matter, the plaintiff, John P. Munnelly, is seeking reinstatement to his former position as Sectional Center Manager (SCM)/Postmaster of Omaha, Nebraska, and back pay. The complaint alleges that plaintiffs removal from his position as Postmaster was in violation of the Constitution and laws of the United States and was arbitrary, capricious and an abuse of discretion.

BACKGROUND

Plaintiff was appointed Postmaster at Omaha in 1963 by the President of the United States. After a subsequent reorganization of the United States Postal Service, he became SCM/Postmaster of the Omaha Post Office. On April 21, 1982, the Nebraska Accountability and Disclosure Commission (NADC) determined that probable cause existed to believe that plaintiff had violated provisions of the Nebraska Political Accountability and Disclosure Act, Neb.Rev.Stat. §§ 49-1401, et seq. (1943). On May 20, 1982, plaintiff entered a nolo contendere plea to three charges under a stipulation and agreement with the NADC. The NADC made findings of three violations and ordered plaintiff to pay $1,000.00 in civil penalties for each violation, and to make restitution to the State of Nebraska.

On July 7, 1982, Robert S. Bates, District Manager of the Mid-America District of the Postal Service, issued a “Notice of Proposed Removal.” The notice stated that the action was based on the following reasons:

On April 21,1982, the Nebraska Accountability and Disclosure Commission determined that there was probable cause to believe that while you were a member of the Omaha Public Power District (OPPD) Board of Directors, you acted in violation of two provisions of the Nebraska Political Accountability and Disclosure Act, 49-14,101(3) and (4), R.R.S., 1943, as follows:
a) You claimed reimbursement and received payment from OPPD for long-distance telephone calls to Omaha, Nebraska, from June 19 to June 24, 1981, which were not for District board business. This is in violation of 49-14,-101(3), R.R.S., 1943.
b) From September, 1979 to February 3, 1982, you used OPPD funds under your official care and control, other than in accordance with prescribed constitutional, statutory and regulatory procedures, and used such funds, in violation of 49-14,101(4), R.R.S.1943, by not accounting therefor by the end of the calendar months following the months in which you incurred travel expenses for the OPPD.
c) From March 5, 1975 to December 31, 1981, you used a telephone credit card, which was in your official care and control, issued to the OPPD by the Northwestern Bell Telephone Company other than in accordance with prescribed constitutional, statutory and regulatory procedures and used such credit card and number for personal financial gain, by charging and causing the OPPD to pay for long-distance calls which were not for OPPD business. This is in violation of 49-14,-101(4), R.R.S.1943.
On May 20, 1982, you entered a plea of no contest to all of these charges in a stipulation and agreement with the Nebraska Accountability and Disclosure Commission. The Nebraska Accountability and Disclosure Commission ordered you to pay $1,000.00 in civil penalties for each of the aforementioned violations and further ordered you to make restitution to the State of Nebraska for any monies improperly obtained.
These events have been extensively reported and described in the news media, including numerous publications in the Omaha World-Herald, and this publicity has identified you as the Postmaster of the Omaha, Nebraska Post Office.
This conduct was incompatible with your position as Sectional Center Manager and Postmaster, resulted in notoriety and adverse publicity which is prejudicial to the interest of the Postal Service, and is inconsistent with Parts 661.53 and 666.2 of the Employee and Labor Relations Manual (ELM).
The material relied on to support the reasons for this notice is attached. If you do not understand the reasons for this notice, contact J.T. Weeker, District Director, Employee & Labor Relations, Mid-America District, for further explanation.

The ELM provisions cited in the Notice of Proposed Removal provide, in pertinent part:

661.3 Standards of Conduct
Employees must avoid any action, whether or not specifically prohibited by this Code, which might result in or create the appearance of:
c. Impeding Postal Service efficiency or economy.
f. Affecting adversely the confidence of the public in the integrity of the Postal Service.
661.5 Other Prohibited Conduct
.53 Unacceptable Conduct
No employee will engage in criminal, dishonest, notoriously disgraceful or immoral conduct, or other conduct prejudicial to the Postal Service. Conviction of a violation of any criminal statute may be grounds for disciplinary action by the Postal Service, in addition to any other penalty by or pursuant to statute.
666.2 Behavior and Personal Habits
Employees are expected to conduct themselves during and outside of working hours in a manner which reflects favorably upon the Postal Service. Although it is not the policy of the Postal Service to interfere with the private lives of employees, it does require that postal personnel be honest, reliable, trustworthy, courteous and of good character and reputation.

On July 23, 1982, in a letter addressed to Thomas K. Ranft, Regional Director, Mail Processing Department, plaintiff responded to the Notice of Proposed Removal. On August 10, 1982, Ranft issued a “Letter of Decision,” which determined that plaintiff should be removed from his position effective August 13, 1982. Plaintiff appealed the decision to the Step I official, Paul N. Carlin, Regional Postmaster General, by letter dated September 21, 1982. On January 3,1983, Carlin upheld the removal. On January 17, 1983, plaintiff appealed the Step I decision by letter addressed to Postmaster General William F. Bolger, sent in care of Nancy L. George, Assistant Postmaster General, Employee Relations Department. George served as the Step II official in the appeal process and affirmed plaintiff’s removal on March 3, 1983.

DISCUSSION

This Court’s scope of review in a case such as this is narrow. As the Eighth Circuit has stated:

Judicial review of dismissal from federal employment is limited to a determination that the applicable procedures have been complied with, and that the dismissal was supported by substantial evidence and was not arbitrary and capricious.

Ross v. United States Postal Service, 664 F.2d 191, 192 (8th Cir.1981). In addition, the Court may review the administrative record for errors of law. Id. at 192.

THE CONSTITUTIONAL ISSUE

Plaintiff first contends that under Article II of the Constitution defendants are without legal authority to discharge him. Plaintiff was appointed Postmaster in 1963 by the President of the United States upon the advice and consent of the United States Senate. According to plaintiff, he can be removed only by the President or by impeachment, not by defendants. Plaintiff cites Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926), for the proposition that the President has the exclusive power of removing executive officers of the United States whom he has appointed with the advice and consent of the Senate. Plaintiff acknowledges that in the past this removal authority was delegated to the Post Office. See McTiernan v. Gronouski, 337 F.2d 31 (2d Cir.1964); Hargett v. Summerfield, 243 F.2d 29 (D.C.Cir.1957), cert. denied, 353 U.S. 970, 77 S.Ct. 1060, 1 L.Ed.2d 1137 (1957). Plaintiff argues, however, that because under the Postal Service reorganization of 1970 the Postmaster General is no longer the head of an executive department pursuant to Article II, Section 2 of the Constitution, such authority can no longer be delegated to him.

Assuming plaintiffs premise to be correct, his argument still fails because he is no longer employed pursuant to a presidential appointment. Under the Postal Reorganization Act the Postal Service is expressly granted the authority to remove employees. The Act provides:

The Postal Service shall have the right
(2) ... to suspend, demote, discharge, or take other disciplinary action against such officers and employees;
(3) to relieve officers and employees from duties because of lack of work or for other legitimate reasons.

39 U.S.C. § 1001(e)(2) and (e)(3). Plaintiff contends that this authority cannot apply to him because it was not available when he was appointed by the President. Defendants correctly point out, though, that Congress can subsequently modify the terms of a presidential appointment. See Crenshaw v. United States, 134 U.S. 99, 10 S.Ct. 431, 33 L.Ed. 825 (1890). Furthermore, the Supreme Court has held that Congress has the authority to discontinue a post office and when that occurs the Postmaster is effectively discharged, even if he was presidentially-appointed. Ware v. United States, 71 U.S. 617, 4 Wall. 617, 18 L.Ed. 389 (1867).

Congress’ reorganization of the Postal Service effectively eliminated plaintiff’s presidentially-appointed position and established a new system under which plaintiff was employed as a Postmaster. Since, under the new system, employees may be discharged, the Postal Service does have the authority to terminate plaintiff.

THE PROCEDURAL ISSUES

Plaintiff next alleges that certain procedural irregularities occurred in his discharge. The Postal Service has established removal and appeals procedures for non-bargaining unit employees such as plaintiff. They are set forth in Part 650 of the Postal Service’s Employee and Labor Relations Manual (ELM). Plaintiff contends that these procedures were violated and that his removal is, therefore, void.

The first alleged irregularity is that Paul N. Carlin, Regional Postmaster General of the Central Region, acted as the Step I appeal official after participating in a meeting at which it was decided to seek plaintiff's discharge. Accepting plaintiff’s assertion that an official involved in initiating an adverse action against an employee should not then hear an appeal of that action, it is, nonetheless, clear that there is no evidence that such a situation exists here. There was testimony that Mr. Carlin did participate in a meeting at which plaintiffs situation was discussed. But, plaintiff has adduced no evidence that any removal decision was reached or that Mr. Carlin directed any other official to instigate action for plaintiff’s removal. The evidence indicates that Robert S. Bates, the District Manager, acted alone in initiating the removal action.

Part 651.54 of the ELM provides that the decision-making official in a discharge action must be higher in authority than the proposing official. The proposing official in plaintiff’s case was Robert S. Bates, District Manager, Mid-America District. The decision-making official was Thomas K. Ranft, the Regional Director of Mail Processing in the Central Region. Plaintiff contends that Mr. Ranft was not higher in authority than Mr. Bates and that Part 651.65 of the ELM was violated.

It is true that both District Managers and Regional Directors report directly to the Regional Postmaster General. The evidence clearly establishes, however, that Mr. Ranft was higher in authority than Mr. Bates. According to Mr. Bates’ testimony, Mr. Ranft sometimes directed him in the performance of his duties while Mr. Bates never directed Mr. Ranft. A Regional Manager also participates in the merit raise review of a District Manager while the converse is never true. Furthermore, both Postmaster General Bolger and Stephen Moe, the postal official primarily responsible for drafting and administering the Part 650 procedures have indicated that in their view a Regional Director is higher in authority than a District Manager. Given this evidence, it did not violate Part 651.54 for Mr. Ranft to serve as the decision-making official and Mr. Bates as the proposing official.

Plaintiff’s final procedural argument is that it was improper for Nancy L. George, Assistant Postmaster General, Employee Relations Department, to serve as the Step II official in the appeal process because there was no written designation from the Postmaster General. Part 652.26 of the ELM provides that:

An employee or representative may appeal in writing, within 15 days after receiving the Step I decision, to the PMG or designee — with a copy to the Step I official. (Appeals are addressed to the Postmaster General, c/o the Assistant Postmaster General, Employee Relations Department, U.S. Postal Service, Washington, D.C. 20260.) Upon receipt of a copy of the appeal, the Step I official forwards the file to the APMG, Employee Relations. The case is reviewed and a written decision is usually due within 15 days of the receipt of the appeal. This decision is final.

Plaintiff argues that unless there is a written designation from the Postmaster General, he alone may render the Step II decision. Defendants contend that the 650 procedure anticipates that the APMG, Employee Relations Department, will serve as the Step II decisionmaker, and thus no written designation is required. Defendants point to three factors: (1) the procedure states that appeals are sent in care of the APMG, Employee Relations; (2) the Step I official forwards the case file to the APMG, Employee Relations; and (3) in practice, the APMG, Employee Relations, generally serves as the Step II official.

The Court is not persuaded that failure to put the designation of Ms. George in writing violates Part 652.26. The procedures do not state that the designation must be in writing and the wording of Part 652.26 puts an employee on notice that the APMG, Employee Relations, will be integrally involved in the Step II decision-making process. It would certainly be a better practice for the Postmaster General to put such designation in writing, especially if that designation is of any official other than the APMG, Employee Relations. However, plaintiff is not entitled to relief based on the nonwritten designation of Ms. George as the Step II official.

In summary, defendants followed the applicable procedures in plaintiff’s removal and appeal. Accordingly, there is no basis for plaintiff’s contention that procedural irregularities render his removal void.

THE ARBITRARY AND CAPRICIOUS ISSUE

Plaintiff’s third major challenge to his removal is based on the nature of the charges levelled against him. In cases involving a federal employee's discharge for off-duty conduct, federal courts have generally upheld the discharge only if the conduct could be shown to affect the “efficiency of the service.” See Bonet v. United States Postal Service, 661 F.2d 1071 (5th Cir.1981); Wroblaski v. Hampton, 528 F.2d 852 (7th Cir.1976); Wathen v. United States, 527 F.2d 1191, 208 Ct.Cl. 342 (1975). Plaintiff claims that his removal was arbitrary, capricious and an abuse of discretion because there is no nexus between his plea of nolo contendere to civil charges of improper off-duty conduct and the efficiency of the Postal Service.

Plaintiff contends that his removal was improper because the nolo contendere plea cannot be used as a basis for a finding of misconduct. It may, indeed, be true that a nolo contendere plea is not admissible in evidence or probative of misconduct. Plaintiffs argument falls short, however, because the Postal Service’s action against him was not based on the plea itself, but rather on the NADC’s finding of civil violations. This distinction is analogous to the admissibility under the Federal Rules of Evidence of a judgment of conviction resulting from a nolo plea, while the plea itself is of no consequence. See United States v. Williams, 642 F.2d 136 (5th Cir.1981); Fed.R.Evid. 410, 609. The Postal Service based its action not on plaintiff’s nolo contendere plea, but on the NADC findings of civil violations.

Plaintiff also alleges that there is no nexus between his conduct and the efficiency of the Postal Service. In discharge cases involving misconduct on the job, courts generally uphold the discharge without requiring any showing of a nexus between the misconduct and efficiency. Thus, in Book v. United States Postal Service, 675 F.2d 158 (8th Cir.1982), the Eighth Circuit Court of Appeals upheld the discharge of a Postmaster who misappropriated $22 worth of tools and supplies. See also Brewer v. United States Postal Service, 647 F.2d 1093, 227 Ct.Cl. 276 (1981), cert. denied, 454 U.S. 1144, 102 S.Ct. 1005, 71 L.Ed.2d 296 (1982) (postal employee discharge for falsifying another employee’s time card and removing undeliverable piece of third-class mail from the post office upheld). In cases involving off-duty conduct, however, courts inquire more closely into the nexus between the misconduct and efficiency. For example, in Young v. Hampton, 568 F.2d 1253 (7th Cir.1977), the court refused to uphold the dismissal of an employee at an army arsenal who had been convicted of possession of a controlled substance. The court ruled that there had been no evidence presented linking the employee’s possession of the controlled substance in his home with the efficiency of the service. On the other hand, in Giles v. United States, 553 F.2d 647, 213 Ct.Cl. 602 (1977), the court upheld the dismissal of an Internal Revenue Service agent who had failed to file in a timely way his income tax return for three years. The agent’s job was to find delinquent taxpayers and the court concluded that the agent’s conduct would be bad for the IRS’ morale and community respect. The court ruled that there was a sufficient nexus between the conduct and the efficiency of the service to conclude that the discharge was not arbitrary and capricious.

In the instant case, the conduct for which plaintiff was removed did not occur in his capacity as Postmaster. In addition, he was not convicted of any criminal wrongdoing. In discharge cases involving criminal convictions, courts often infer a nexus between the crime and the efficiency of the service. See, e.g., Yacovone v. Bolger, 645 F.2d 1028 (D.C.Cir.1981), cert. denied, 454 U.S. 844, 102 S.Ct. 159, 70 L.Ed.2d 130 (1981); Gueory v. Hampton, 510 F.2d 1222 (D.C.Cir.1974). For these reasons, the Court must examine whether there is a nexus between plaintiff’s conduct and the efficiency of the Postal Service sufficient to justify their dismissal of plaintiff.

The position of Postmaster is an important one. Postmasters are officials who help manage one of government’s most essential services. They are in the public eye and are in a position of trust, a fact evidenced by plaintiff’s original appointment by a President. They must set an example for the employees below them and responsibly represent the Postal Service with the public. The Postal Service has the right, indeed the responsibility, to hold Postmasters to a high standard of conduct. In considering whether plaintiff’s conduct justified his removal, the Court should take into account the visibility and authority of his position. See Brewer, 647 F.2d at 1093.

The NADC found that plaintiff had committed civil violations involving financial misconduct with public power district funds. These actions call into question plaintiffs personal integrity. The amount of money involved was relatively small. However, calculated misuse of public funds in any amount raises doubts about the fitness of a Postmaster to serve. Accordingly, the Postal Service is permitted to treat this matter more seriously than some purely private conduct.

In addition, the NADC findings attracted great attention in the press. The Postal Service was concerned with the appearance of a Postmaster having been found to have misused public funds. The Postal Service’s reputation is very important and it properly considered the adverse publicity resulting from plaintiff’s misconduct in deciding to remove him. See, e.g., Yacovone, 645 F.2d at 1028; Wathen, 527 F.2d at 1191; Norton v. Macy, 417 F.2d 1161 (D.C.Cir.1969).

It was not arbitrary, capricious or an abuse of discretion for the Postal Service to discharge plaintiff. The action may stand.

In conclusion, as plaintiff has failed to prove any irregularities in his removal, his complaint must fail. The Postal Service has the constitutional and legal authority to remove a Postmaster. The Postal Service followed all applicable procedures in removing plaintiff and its action was not arbitrary, capricious or an abuse of discretion. A separate order in conformance with this memorandum shall be entered.

ORDER

In conformance with the Memorandum entered this date,

IT IS ORDERED that plaintiff’s request for reinstatement and back pay should be and hereby is denied. Judgment should be and hereby is entered in favor of defendants and against plaintiff. Plaintiff’s complaint should be and hereby is dismissed, each party to bear his or its own costs.


author: TERRENCE WILLIAM BOYLE, District Judge.

text:
    ST. PAUL FIRE & MARINE INSURANCE COMPANY, Plaintiff, v. TRENOR CORPORATION, Central Fidelity Bank, and Seafare Corporation, Defendants.
    No. 85-19-Civ-2.
    United States District Court, E.D. North Carolina, Elizabeth City Division.
    Aug. 5, 1985.
    Joseph W. Yates, III, Barbara B. Weyher, Yates, Fleishman, McLamb & Weyher, Raleigh, N.C., for plaintiff.

      John H. Hall, Jr., Russell E. Twiford, Elizabeth City, N.C., for defendants.
   ORDER

TERRENCE WILLIAM BOYLE, District Judge.

This action comes before the court on the motions by defendants Central Fidelity Bank and Trenor Corporation to dismiss this action or to stay the proceedings until related proceedings in the Dare County Superior Court have run their courses. This case turns on the doctrine of federal judicial abstention.

On or about August 23,1984, the Seafare Restaurant burned to the ground. At the time of the fire, St. Paul Fire & Marine Insurance Company,, a hazard insurance company, insured the restaurant and its contents for $820,000 at the request of the owner Trenor Corporation. Central Fidelity Bank held a $500,000 first deed of trust on the property, but through an alleged oversight it was not named as a mortgagee beneficiary on the insurance policy. On September 7, 1984, the bank filed a civil action in the Dare County Superior Court against Trenor and St. Paul to recover the insurance proceeds under the policy. St. Paul denied liability because the bank was not a named insured nor was it in privity of contract with St. Paul. Later, St. Paul asserted the defense of arson. Trenor Corporation admitted the bank’s allegations. The Dare County Superior Court awarded the bank summary judgment against Trenor Corporation on March 18, 1985.

Seafare Corporation filed suit in the Dare County Superior Court against the bank, Trenor Corporation, St. Paul, and several individuals. The Seafare complaint contained extensive allegations of fraud.

On March 13, 1985, St. Paul filed the complaint in this case. The bank and Trenor Corporation have moved to dismiss or stay this action in deference to those actions proceeding in the Dare County Superior Court.

DISCUSSION

For purposes of this motion, the court will consider the motion to stay the proceedings as a motion to dismiss the proceedings. Whether stayed or dismissed, the plaintiff, St. Paul, would be effectively out of this court, and the issues would be resolved in the state court proceeding. See Moses H. Cone Hospital v. Mercury Construction Corporation, 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983).

Abstention from the exercise of federal jurisdiction is the exception, not the rule. “The doctrine of abstention, under which a district court may decline to exercise or postpone the exercise of its jurisdiction, is an extraordinary and narrow exception to the duty of a district court to adjudicate a controversy properly before it. Abdication of the obligation to decide cases can be justified under this doctrine only in the exceptional circumstances where the order to the parties to repair to the state court would clearly serve an important countervailing interest.” (citation omitted). “It was never a doctrine of equity that a federal court should exercise its judicial discretion to dismiss a suit merely because a state court could entertain it.” (citation omitted).

Colorado River Water Conservation District, et al. v. United States, 424 U.S. 800, 813-14, 96 S.Ct. 1236, 1244-45, 47 L.Ed.2d 483 (1976).

The Supreme Court in Colorado River, listed three categories of cases in which abstention is appropriate:

1. “In cases presenting a federal constitutional issue which might be mooted or presented in a different posture by a state court determination of pertinent state law,” 424 U.S. 814, 96 S.Ct. 1244.

2. “When a case involves difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar,” 424 U.S. 814, 96 S.Ct. 1244; and

3. Where “Federal jurisdiction has been invoked for the purpose of restraining state criminal proceedings, (citations omitted), state nuisance proceedings antecedent to a criminal prosecution, ... or collection of state taxes.” 424 U.S. 816, 96 S.Ct. 1245. The case at bar fits into none of these categories.

The court in Colorado River also indicated that abstention may be appropriate based on principles which “rest on considerations of ‘wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.’ ” 424 U.S. 817, 96 S.Ct. 1246. The court listed several factors for a district court to consider in its decision to abstain or to exercise its jurisdiction. The first is that if there is certain property over which only one court may exercise its jurisdiction and over which the state courts have already exercised that jurisdiction, the federal court should abstain. In the case at bar, there is no such property. The other factors are the inconvenience of the federal forum, the desirability of avoiding piecemeal litigation, and the order in which jurisdiction was obtained by the concurrent forums. Even so, the court warned “only the clearest of justifications will warrant dismissal.” 424 U.S. at 819, 96 S.Ct. at 1247.

In the case at bar, the federal forum, Elizabeth City, is at least as convenient to the parties and their attorneys as is the Superior Court of Dare County. The order in which the concurrent forums obtained jurisdiction weighs heavily in neither direction. The Dare County Superior Court obtained jurisdiction in the fall of 1984. This action was instituted in March, 1985. The plaintiff in this action asserts that it could not have instituted this action until its investigation revealed what it considered to be facts which would support allegations of arson. The activities in the state court cases are not so exhaustive that proceedings in this court would work a hardship on the parties. In the case before this court, there is a complaint and an answer by each of the parties, as well as a counter claim by one of the defendants. Any of the discovery developed for use in the state court action would be equally as useful here insofar as it pertains to the parties in this action. Accordingly, this court finds that the order in which the jurisdiction was obtained by the concurrent forums does not weigh decisively in favor of the state court.

The final factor is the desirability of avoiding piecemeal litigation. This factor counsels in favor of this court denying the motions to dismiss or stay. The court finds that this federal forum is well-equipped to decide the plaintiff’s claims, and after its decision, the state court' may hear the remaining allegations.

The movants have directed this court’s attention to other Supreme Court cases in support of their motion. In Brillhart v. Excess Insurance Company, 316 U.S. 491, 62 S.Ct. 1173, 86 L.Ed. 1620 (1942), the district court dismissed a declaratory judgment action because there was a proceeding in the state courts which involved identical issues and the Missouri law on that issue appeared to be unclear. The Circuit Court of Appeals held that the dismissal of the suit was an abuse of discretion and directed the district court to proceed to a determination on the merits. The Supreme Court reversed the Circuit Court’s decision and remanded to allow the district court to exercise its discretion. The North Carolina law on the issues in the case at bar is not unclear; hence Brillhart is distinguishable.

In Will v. Calvert Fire Insurance Company, 437 U.S. 655, 98 S.Ct. 2552, 57 L.Ed.2d 504 (1978), the issue was whether the Circuit Court’s mandamus to compel the district court to hear the case on the merits was premature. Five justices held that it was. In that ease there was no majority opinion and the judgment of the court does not directly relate to this case.

The most recent case from the Supreme Court dealing with the doctrine of abstention is Moses H. Cone Memorial Hospital v. Mercury Construction Corporation, 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). Jurisdiction was based on diversity of citizenship. Mercury had contracted with the hospital to make certain additions. The contract required disputes to be resolved through arbitration, but the hospital obtained an ex parte injunction from the state court forbidding Mercury to take any steps directed toward arbitration. Mercury objected to the injunction, and it was dissolved. Mercury then filed an action in the federal court seeking an order compelling arbitration. On the hospital’s motion, the district court stayed Mercury’s action pending resolution of the state court suit.

Because the two suits involved identical issues, the arbitrability of Mercury’s claims, the Supreme Court found that the district court’s stay order was appealable as a final decision and ruled that the decision to stay the federal suit out of deference to the parallel litigation of the state court was improper. The court reviewed the Colorado River factors and rejected the hospital’s argument that the Colorado River test was undermined by Will v. Calvert Fire Insurance Company. The court found no exceptional circumstances and did nothing to modify “the virtually unflagging obligation of the federal courts to exercise the jurisdiction given them.” Colorado River, 424 U.S. 800, 817, 96 S.Ct. 1236, 1246.

“[T]he decision of whether to dismiss a federal action because of parallel state court litigation does not rest on a mechanical checklist, but on a careful balancing of the important factors as they apply in a given case, with the balance heavily weighted in favor of the exercise of jurisdiction.” 460 U.S. 16, 103 S.Ct. 937. Because the movants have failed to overcome this “balance heavily weighted” against them, the motions to stay or to dismiss this action are DENIED.


author: WILLIAM C. LEE, District Judge.

text:
    James Z. YELVERTON, Jr., Petitioner, v. Betty Ann YELVERTON a/k/a Betty Ann Bates, Respondent.
    Civ. No. F 85-322.
    United States District Court, N.D. Indiana, Fort Wayne Division.
    Aug. 6, 1985.

      James Z. Yelverton, Jr., pro se.
   ORDER

WILLIAM C. LEE, District Judge.

This matter is before the court on petitioner’s motion to proceed in forma pauper-is received July 29, 1985. Petitioner wants this court to grant his motion so that he may file a diversity action against the proposed respondent for the alleged infliction of emotional distress caused by the proposed respondent’s attempts to keep the petitioner’s daughter from communicating with him. For the following reason, the motion to proceed in forma pauperis will be denied.

Petitioner is proceeding pro se. Pro se pleadings are to be liberally construed. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). The district court’s role is to ensure that the claims of pro se litigants are given “fair and meaningful consideration.” Matzker v. Herr, 748 F.2d 1142, 1146 (7th Cir.1984); Caruth v. Pinkney, 683 F.2d 1044, 1050 (7th Cir.1982). This court also recognizes that federal courts have historically exercised great tolerance to ensure that an impartial forum remains available to plaintiffs invoking the jurisdiction of the court without the guidance of trained counsel. Pro se motions and complaints such as the petitioner’s are held to less stringent pleading requirements; rigor in the examination of such motions, complaints and pleadings is inappropriate.

A district court may examine the merits of a suit on a motion to proceed in forma pauperis before the issuance of summons. Wartman v. Milwaukee County Court, 510 F.2d 130 (7th Cir.1975); Balientine v. Crawford, 563 F.Supp. 627 (N.D.Ind.1983). Construed liberally, the proposed complaint attempts to set forth a single cause of action for intentional infliction of emotional distress. The facts of the proposed complaint indicate that the petitioner and the proposed respondent were married to each other and had a daughter named Letisha in 1977 while the couple was living in Pennsylvania. At some point in January, 1978, the proposed respondent Betty Ann Yelverton apparently left the petitioner and took Letisha with her. No formal divorce or legal separation was ever filed or entered into, and the proposed respondent has successfully prevented the petitioner from communicating with his daughter since January, 1978. Petitioner therefore argues that this interference with his relationship with his daughter constitutes an intentional infliction of mental distress, and the petitioner seeks to file this diversity action seeking $50,000.00 in damages.

The court concludes that it would not have jurisdiction over this case if it were filed as a diversity action. Courts have long recognized a “domestic relations exception” to the subject matter jurisdiction of federal courts. This exception is deeply rooted and stems from the belief that domestic relations matters, being of local concern, are best left to the jurisdictional province of state courts. See, e.g., Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979); Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 50 S.Ct. 154, 74 L.Ed. 489 (1930); Barber v. Barber, 21 How. 582, 62 U.S. 582, 16 L.Ed. 226 (1858); Schleiffer v. Meyers, 644 F.2d 656, 663 (7th Cir.), cert. denied, 454 U.S. 823, 102 S.Ct. 110, 70 L.Ed.2d 96 (1981); Brown v. Brown, 541 F.Supp. 688, 693 (N.D.Ind.1982). The exception applies in diversity cases only. Flood v. Braaten, 727 F.2d 303, 307 (3d Cir.1984); Wright, Miller & Cooper, Federal Practice and Procedure § 3609 (1975). While the exception does not require that federal courts avoid all diversity cases which have intrafamily or domestic aspects, see Bennett v. Bennett, 682 F.2d 1039 (D.C.Cir.1982), a federal court may not take jurisdiction over a case if it would require it to grant a divorce, determine alimony or support obligations, or resolve parental conflicts over the custody of their children. See In re Burrus, 136 U.S. 586,10 S.Ct. 850, 34 L.Ed. 1500 (1890); Bennett, 682 F.2d at 1043; Wasserman v. Wasserman, 671 F.2d 832, 834 (4th Cir.1982); Sutter v. Pitts, 639 F.2d 842, 843 (1st Cir.1981).

The court finds that if it were to take jurisdiction of this case, it would necessarily be forced to make determinations concerning the petitioner’s and the proposed respondent’s rights concerning custody and visitation of Letisha Yelverton. As alleged in the proposed complaint, no divorce decree or separation agreement has been issued by any court of law, so that the visitation and custody rights of Letisha’s parents are currently undetermined. To determine whether or not the proposed respondent’s actions in preventing communication between the petitioner and Letisha was tortious (as alleged in the complaint), the court would necessarily have to determine those rights and whether or not the proposed respondent violated those rights. This is not a case where custody rights have been established by some state court, so that violation of the rights may in fact give rise to a cognizable claim in federal court. See Heartfield v. Heartfield, 749 F.2d 1138 (5th Cir.1985); Flood v. Braaten; Bennett. Here, there is no state custody or visitation decree at issue; no prior determination of rights has been made. Thus, any ruling on the propriety of the proposed respondent’s actions would necessarily involve this court in determining custody and visitation rights, an act which the domestic relations exception specifically prohibits this court from doing.

The fact that the petitioner has couched the complaint in terms of a tort does not alter this conclusion, because the essence of the claim is a domestic relations dispute. See Sutter v. Pitts, 639 F.2d 842, 844 (1st Cir.1981). Nor does petitioner’s proposed complaint make out a federal question under 28 U.S.C. § 1738A, sometimes known as the Parental Kidnaping Prevention Act. That section only attempts to prevent inconsistent and conflicting state court custody decrees from preventing a final determination of the rights of the parents involved. Section 1738A was designed to prevent the type of conflict present in Flood v. Braaten, 727 F.2d 303 (3d Cir.1984), where two state courts had entered custody decrees and refused to recognize each other’s judgment. A federal court in' the Flood situation can take jurisdiction of such a dispute, but because no state custody decree has been alleged here, § 1738A simply does not apply.

In short, the petitioner’s proposed complaint alleges a dispute which is distinctly a domestic relations matter, and the domestic relations exception to the subject matter jurisdiction of this court would require the dismissal of this action pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure. Thus, the proposed complaint would fail on its merits, and for this reason, the court hereby DENIES the motion to proceed in forma pauperis.


author: GERALD J. WEBER, District Judge.

text:
    Charles E. VERNAU, Sr. et al., Plaintiffs, v. PORT VUE SUPER DOLLAR MARKET, Defendant. Charles E. VERNAU, Sr., et al., Plaintiffs, v. FRANKSTOWN FOOD-A-RAMA, INC., Defendant.
    Civ. A. Nos. 84-1523, 84-1528.
    United States District Court, W.D. Pennsylvania.
    Aug. 7, 1985.
    Stephen J. Harris, Joseph A. Vater, Meyer, Unkovic & Scott, Pittsburgh, Pa., for plaintiffs.
    Timothy P. O’Reilly, Pittsburgh, Pa., for defendant.
   MEMORANDUM OPINION AND ORDER

GERALD J. WEBER, District Judge.

Consistent with our January 24, 1985 order, we are considering the motions in these cases together. In No. 84-1523, defendant seeks summary judgment on delinquent amounts of Fund contributions that have been paid since this lawsuit was filed. Defendant has attached copies of cancelled checks to his motion, and plaintiffs admit that defendant’s accounts should be credited to this extent. We therefore will enter partial summary judgment in defendant’s favor for contributions to the Fund since the filing of the complaint. We do not feel confident with the figures provided thus far, however, so we will not include any particular amount in our ruling above. This should not be interpreted as a finding that defendant is the prevailing party for purposes of awarding attorney’s fees under 29 U.S.C. § 1132(g)(1).

Plaintiffs correctly point out that disposing of the remainder of their claims must await further proof. First, we are not satisfied that we have heard the last word on the parties’ calculations of unpaid contributions. Second, the cancelled checks submitted by defendant indicate that it has not made its payments on time. Congress has been specific about court awards of interest, liquidated damages, and attorney’s fees in actions for delinquent contributions. 29 U.S.C. § 1132(g). These awards may substantially affect the ultimate amount of damages. Finally, we will not now decide whether plaintiff is entitled to liquidated damages under both ERISA and the Wage Payment and Collection Law, though we recognize that the Court of Appeals for the Third Circuit has found that ERISA does not preempt the WPCL. Carpenter’s Health and Welfare Fund v. Kenneth R. Ambrose, Inc., 727 F.2d 279, 282 n. 5 (3d Cir.l98S).

In 84-1528, defendant moved for summary judgment on all unpaid claims accruing more than three years prior to the filing of the complaint. Defendant failed to raise this statute of limitations argument in its Answer, but moved to file an Amended Answer on February 15, 1985, three weeks after filing the motion above. We granted the motion to amend unless plaintiffs would file a response and submit a brief. Plaintiffs submitted their brief on February 21, 1985, though they have filed nothing on the record.

In its motion for summary judgment, defendant relies on Byrnes v. DeBolt Transfer Inc., 741 F.2d 620 (3d Cir.1984). Defendant should more properly have relied on Teamsters Pension Trust Fund v. John Tinney Delivery Service, Inc., 732 F.2d 319 (3d Cir.1984). The Tinney case holds for the statute of limitations principle upon which defendant bases its motion. The Byrnes panel simply stated that it had been asked to overrule Tinney, and explained that it could not under the Court’s rules. 741 F.2d at 625. The Court in Tinney held that the three year statute of limitation under the Pennsylvania Wage Payment and Collection Law, 43 Pa.Stat. Ann. § 260.9a(g) (Purdon Supp.1983) applied to contributions to employee benefit trusts.

In response, plaintiffs cites Morgan v. Lehigh Valley Coal Co., 215 Pa. 443, 54 A. 663 (1906) and related cases which we find do not apply. Morgan stands for the principle that the statute of limitations is tolled when there are “mutual running accounts between the parties or between merchant and factor or servant.” Id. at 447, 54 A. 663. This exception for such commercial transactions could not be further from the statutorily controlled employment-related obligation we address here. Furthermore, Morgan applies the statute of limitations as it stood on March 27, 1713. Id.

In light of Tinney and DeBolt, defendant’s motion for partial summary judgment will be granted. We note that Judge Mencer took the same action in a similar case on May 12, 1985. See Vernau v. Billco Foods, Inc., Civil Action No. 84-1649.

      . The copies of checks attached to defendant’s motion add up to the following amounts:
      Health Fund $5,047.50
      Pension Fund $1,407.70
      Legal Fund $441.92
      In its motion, defendant recites the amounts to be credited as:
      Health $4,024.50
      Pension $1,307.70*
      Legal $342.32
      *We have subtracted $.06 from the pension figure cited in defendant’s motion, which disagrees with the face amount of the March 22, 1985 check.


text:
    Bernard SZYMCZAK, Plaintiff, v. JONES & LAUGHLIN STEEL CORPORATION, Defendant.
    Civ. A. No. 84-1058.
    United States District Court, W.D. Pennsylvania.
    Aug. 7, 1985.

      James R. Duffy, Pittsburgh, Pa., for plaintiff.
    John C. Unkovic, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., for defendant.
   OPINION

GERALD J. WEBER, District Judge.

This is an action based primarily on plaintiff’s claim of age discrimination against his former employer. The complaint contains two other counts governed by state law: one invokes the Pennsylvania Human Relations Act, and another which we construe as alleging common law fraudulent misrepresentation. Discovery has been completed and pretrial narratives have been filed. We now address defendant’s motion for summary judgment. The facts describing Mr. Szymczak’s separation from Jones & Laughlin Steel Corporation (“J & L”) are not in dispute. We must decide whether these facts support a claim of discrimination under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.

A. FACTUAL BACKGROUND

Plaintiff was employed at J & L’s Pittsburgh Works from September 1943 to October 1982. Until April of 1982 he held the position of General Sampler. This job involved collecting samples of molten steel from the company’s electric furnaces for laboratory analysis. On April 30,1982, J & L shut down its electric furnaces for an indefinite period of time, resulting in layoffs of 780 employees. This number included plaintiff and all the twenty other members of his “seniority unit.” Under the party’s collective bargaining agreement, employees who were laid off or expected to be laid off for six months would be reassigned to other areas of the plant to replace workers with less seniority. The most senior laid off employees would be reassigned first. See Defendant’s Motion for Summary Judgment, Exhibit 1, § 13L.3. and .4.

In early October 1982, J & L began reassigning workers laid off during the April shutdown. Eleven employees were called back at that time in order of seniority. The first seven went to the Rolling Mills. The next four, including plaintiff, were reassigned to the By-Products Department. In his brief, plaintiff characterized his new job as “heavy in nature”. He did not believe he could perform his duties in the By-Products Department because of a long-standing back condition which was commonly known to those acquainted with him. See Plaintiff’s Opposing Brief, Mahr Affidavit. He ultimately elected to retire on October 31,1982. He now contends that the company’s actions were taken to thin the ranks of the older workers.

B. ANALYSIS OF THE PRIMA FACIE CASE

As we described in Pierce v. New Process Company, 580 F.Supp. 1543 (W.D.Pa.1984), aff'd. 749 F.2d 27 (3d Cir.1984), the plaintiff in an age discrimination action must establish four elements to make out a prima facie case. This accomplished, he is entitled to a rebuttable presumption of discrimination. Plaintiff must show that he (1) is in the protected age group; (2) was the subject of an adverse employment action; (3) was qualified for the position in question; and (4) was treated less favorably than younger employees. In short, plaintiff must prove that age was “a determinative factor” in an adverse decision concerning his employment. Duffy v. Wheeling-Pittsburgh Steel Corp., 738 F.2d 1393, 1394 (3d Cir.1984). We find that plaintiff has not carried this burden.

After establishing that he is in the protected class, Mr. Szymczak cannot satisfy any other elements of the prima facie case. His failure to make out a claim stems principally from the twist that distinguishes this case from the typical ADEA suit. A federal age discrimination case usually involves an employee who has been demoted or has lost his job. Plaintiff here alleges that his employer discriminated against him because of the procedure it followed in providing him with a job.

Plaintiffs argument is plausible in the abstract: an older worker is given a job he cannot perform to force his exit from the company. But in being provided a job, he is one step removed from cases where the plaintiffs were demoted or lost jobs. This adds to the burden of proving not only discriminatory motive, but that the action was adverse or that the company intended to discharge him at all. As a matter of course, we find it difficult to believe that firms which discriminate on the basis of age would carry out their scheme by offering other jobs to their targets. Under these circumstances, plaintiff fails to sustain the burden of proof necessary to establish his prima facie case.

We have difficulty accepting the contention that plaintiff was the victim of an adverse employment decision. He does not propose that the April 1982 layoff was discriminatory; this action was plant-wide and touched 780 workers. He argues that his call back from layoff was adverse because defendant knew or should have known that he was physically incapable of performing the job in the By-Products Department. After complaining of his dilemma, he was forced into retirement on account of his age.

This claim lacks any support. First, plaintiff sheds no light on any discriminatory motive because he has not shown that he actually might be incapable of performing the job. He has failed to distinguish the duties of a General Sampler from those of a By-Products worker except in conclusorily referring to the former as “predominantly light work” and the latter as “heavy in nature”. See Plaintiffs Opposing Brief, Mahr Affidavit. He has failed to set forth the extent of his back injury apart from stating that he has worn a brace since 1974. He did state that he has not received treatment for his back condition since 1974 and that he has not missed any work because of it. Plaintiff’s Deposition at 43-45. But we have no idea how limiting plaintiff’s condition is, or whether a person of his abilities can or cannot perform the duties of a By-Products worker.

Second, we must consider the issue of relevance. Had evidence of plaintiff’s back condition been submitted, it might show a bias against workers with physical limitations. But it would not help prove that age was related to any of defendant’s actions.

Ultimately, plaintiff's case falls for lack of this relationship. The October 1982 call back was conducted under the procedures set forth in the collective bargaining agreement. Section 13L.4. provides:

In the event of a ... layoff of one or more employees for a period which extends for six months or more or which the parties believe will extend for such a period, an employee affected who has two or more years of plant continuous service at time of layoff shall be given the right to a job in any seniority pool in the plant if a job in that pool is held by an employee with less plant service provided he is qualified to perform the job. Such assignments to jobs shall be subject to the same rules as apply in Subsection L-3 above.

The subsection immediately preceding states:

Where practicable, ... Management will make a reasonable effort to assign, on the basis of plant continuous service, an employee laid off from his seniority unit to a pool job he prefers which is not held by an employee of that unit. However, Management shall have the right, to the extent necessary, to designate the specific job in any pool to which an employee shall be assigned (and to change such assignments) in order to provide jobs for longer-service employees who would otherwise be unable to qualify for an available job in the pool____ The local parties may by agreement determine whether there are circumstances under which an employee need not accept a pool job.

Section 13L.3. See Defendant’s Motion for Summary Judgment, Exhibit 1.

The company thus may consider an employee’s preferred position for reassignment, but is not obligated to reassign by choice. The actual call back was made in order of most seniority according to these provisions. We see no evidence of younger employees being treated more favorably or the presence of age as a factor in any of these decisions.

There is no dispute that plaintiff’s job as General Sampler was eventually filled by a younger man. See Plaintiff’s Opposing Brief, Mahr Affidavit. This occurred three months after plaintiff retired, however, when J & L decided to reopen its chemistry lab. Seventy-nine employees had been called back to the Rolling Mill and By-Products Department during this time. Any link between such a broad business decision to a scheme of discrimination — in light of J & L’s other actions regarding the layoff and call back — is too remote to be given weight.

Plaintiff contends that J & L acted arbitrarily in invoking the terms of its labor contract under which he was reassigned. He supports this only by alleging that less senior employees were assigned to jobs that he was physically able to perform. Defendant acted consistently with the specifically applicable terms of the labor agreement, however, and plaintiff has submitted no evidence about his physical limitations. Under those conditions, we would hesitate to label these acts arbitrary absent evidence that sections 13L.3. and 4. were without precedent or were intended to apply to circumstances other than those before us now.

Finally, plaintiff argues that the procedures defendant followed are simply pretext to hide discrimination. All other evidence refutes this claim. J & L applied valid labor provisions in executing the call back. It called back employees in order of seniority. There is no evidence that younger employees were treated more favorably in the call back or reassignment. Plaintiff retired and was not terminated, although he claims this was involuntary. He did not file a grievance even though his labor contract provides for special considerations of disputes concerning reassignment. Defendant may have been insensitive to his physical abilities in conducting the reassignment, but this does not forge an adequate link between the company’s action and an age bias which would entitle plaintiff to relief under the ADEA. Accordingly, we find no violation of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. which plaintiff pleaded in his complaint. We will grant defendant’s motion for summary judgment.

Plaintiff’s two remaining counts rely on state law. We need not consider them for two reasons. First, absent the ADEA claim this court has no jurisdiction over plaintiff’s action. Second, plaintiff apparently has abandoned these claims by confining his brief to the ADEA claim and stating that “preservation of the ADEA count and remedy thereunder will provide plaintiff with complete relief.” Opposing Brief at 4.

ORDER

Defendant’s motion for summary judgment is GRANTED and the case is hereby DISMISSED.

      . Mr. Szymczak has alleged that defendant’s doctor conducted a superficial medical examination in investigating his suitability for the By-Products job, not even examining his back. Assuming this is true, plaintiff does not describe how this treatment is related to his age.

      . The ADEA expressly approves the operation of bona fide seniority systems. 29 U.S.C. § 623(f)(2).

      . We believe the last sentence quoted applies particularly to this case. If physical limitations actually prevented plaintiff from performing the By-Products job, he was entitled to pursue a remedy through his union.


author: EDELSTEIN, District Judge:

text:
    John PICA, M.D., Plaintiff, v. PROFESSIONAL RISK INSURERS MANAGEMENT EXCLUSIVE, LTD., Defendant.
    No. 84 Civ. 8900 (DNE).
    United States District Court, S.D. New York.
    Aug. 7, 1985.
    Dweck and Sladkus, New York City (Michael S. Aranoff & Jack S. Dweck, New York City, of counsel), for plaintiff.
    Spitz, Spitz & Fedorchak, Poughkeepsie, N.Y., (Andrew L. Spitz, Poughkeepsie, N.Y., of counsel), for defendant.
   OPINION AND ORDER

EDELSTEIN, District Judge:

Plaintiff, John Pica, M.D. (“Pica”), seeks to recover premiums paid to defendant Professional Risk Insurers Management Exclusive, Ltd. (“PRIME”) as part of a medical malpractice insurance policy that plaintiff contends he cancelled. The resolution of this case rests on whether surrender of the policy was required to effect the cancellation. Plaintiff has moved for summary judgment. The motion is hereby denied.

FACTUAL BACKGROUND

The essential facts in this action are not in dispute. Plaintiff entered into a contract of insurance with PRIME for medical malpractice liability coverage and was issued a policy. The policy was effective for one year as of August 1, 1983. Pica forwarded to defendant a notice of cancellation of the policy dated October 5, 1983 which was received by defendant. Plaintiff does not claim to have surrendered the policy. Defendant has refused to remit any portion of the premiums already paid by plaintiff claiming that notice of cancellation is not sufficient to cancel the policy. PRIME contends that pursuant to the terras of the policy both notice of cancellation and surrender of the policy, are conditions to cancellation.

DISCUSSION

The policy in this case under the section labeled “Other Conditions” states:

This policy may be cancelled by the Named Insured by surrender thereof to the Company and by mailing to the aforementioned written notice stating when thereafter cancellation shall be effective. If cancelled by the Insured, the Company shall retain the customary short rate proportion of the premium.

The policy clearly establishes surrender of the policy and notice of cancellation as conditions to cancellation.' Such a provision is binding on the insured. Lofaro v. John Hancock Mutual Life Insurance Co., 239 A.D. 54, 57, 265 N.Y.S. 724 (4th Dep’t 1933), aff'd mem,., 272 N.Y. 627, 5 N.E.2d 365 (1934); 17 G. Couch, Cyclopedia of Insurance Law § 67:271, at 717 (1983). Pica does not claim to have surrendered the policy and has not alleged satisfaction of the conditions for cancellation.

Pica contends that surrender of a policy is not required to cancel an insurance contract. This general statement of the law can be misleading because it does not set forth any exceptions to the rule. Absent any provision in the policy conditioning cancellation on surrender, surrender of the policy is not required to cancel the contract. All that is required is notice of the cancellation. Surrender, however, is required when the policy so provides.

In Mutual Creamery Insurance Co. v. Iowa National Mutual Insurance Co., 294 F.Supp. 337, 341 (D.Minn.1969), the court did not require surrender of the policy when the policy contained the following clause:

This policy shall be cancelled at any time at the request of the insured, in which case this company shall, upon demand and surrender of this policy, refund the excess of paid premium above the customary short rates for the expired time.

It is clear that surrender was not a condition of cancellation but rather a condition to the refund of the premiums. While the defendant claimed that surrender was required, the court examined the terms of the policy and determined that it was office policy not to cancel the contract until the insurance company had possession of the policy. The terms of the contract were enforced and surrender was not required. When presented with an identical policy, the court in Commercial Standard Insurance Co. v. Farmers Alliance Mutual Insurance Co., 385 F.2d 826 (10th Cir.1967), reached the same conclusion.

A different situation was presented in Palardy v. Canadian Universal Insurance Co., 360 F.2d 1007 (2d Cir.1966). The policy contained the following provision:

This policy may be cancelled by the named insured by the surrender thereof to the company or any of its authorized agents or by mailing to the company written notice stating when thereafter the cancellation shall be effective.

360 F.2d at 1009. Thus, cancellation could be effected by either surrender or written notice.

In Lofaro v. John Hancock Mutual Life Insurance Co., 239 A.D. 54, 265 N.Y.S. 724 (4th Dep’t 1933), aff'd mem., 272 N.Y. 627, 5 N.E.2d 365 (1934), the policy provided that coverage could be discontinued “upon the request of the insured and upon presentation of the policy to the company.” 239 A.D. at 55, 265 N.Y.S. 724. The court found the cancellation must be made in accordance with the requirements imposed by the policy: both notice and surrender. Id. at 56, 265 N.Y.S. 724.

The policy in this case clearly establishes surrender as a condition to cancellation. Plaintiff has not alleged satisfaction of all of the conditions precedent to defendant’s liability, specifically surrender. The motion for summary judgment must therefore be denied.

CONCLUSION

Surrender of the policy is required to cancel the insurance contract. Plaintiff, who seeks to recover premiums paid to defendant, has failed to allege that such surrender was made. Plaintiff is not entitled to summary judgment. The motion is hereby denied.

SO ORDERED.

      . The court in Commercial Standard agreed with the interpretation of an identical policy in DeLaPerriere v. American Home Assurance Insurance Co., 106 Ga.App. 516, 127 S.E.2d 478 (1962), where the court stated that "The language of this policy does not require a surrender of the policy to effect a termination.” Id., 127 S.E.2d at 480. Thus, it is the language of the policy that may establish conditions for cancellation.

      . Plaintiff contends that the motion for summary judgment must be granted because defendant's affidavit in opposition "does not rise to the sufficiency required by Rule 56" of the Federal Rules of Civil Procedure. The affidavit of defendant’s counsel submitted in opposition to the motion is likely not to be based on personal knowledge as required by the rule; however, this is not a sufficient basis to grant the motion in this case. The rule provides that;
      When a motion for summary judgment is made and supported as provided by this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not respond, summary judgment, if appropriate, shall be entered against him.
      In light of the court's conclusion of law that surrender is a condition to cancellation of this policy, summary judgment is not “appropriate" because plaintiff has not ajleged that surrender was made. Therefore, an affidavit based on personal knowledge need not be submitted to avoid the entry of judgment.