author: SANDERS, District Judge.

text:
    PUMPKIN AIR, INC., et al., Plaintiffs, v. The CITY OF ADDISON, et al., Defendants.
    Civ. A. Nos. 3-82-1051-H, 3-82-1135-H and 3-82-1860-H.
    United States District Court, N.D. Texas, Dallas Division.
    Jan. 28, 1985.

      David R. McAtee, Timothy R. McCormick, Thompson & Knight, Dallas, Tex., William H. White, Susman Godfrey & McGowan, Houston, Tex., William W. Wilson, Witts & Wilson, G.H. Kelsoe, Jr., Kelsoe & Kelsoe, Dallas, Tex., for plaintiffs.
    Dudley Chambers, Jackson Walker Win-stead Cantwell-& Miller, Robert L. McCallum, James E. Coleman, Jr., Elizabeth Zervopoulos, Carrington Coleman Sloman & Blumenthal, Dallas, Tex., for defendants.
   MEMORANDUM OPINION AND ORDER

SANDERS, District Judge.

This case is before the Court on Defendant Addison Airport of Texas, Inc., et al.’s Motion for Summary Judgment, filed October 29, 1984; Defendant City of Addison’s Motion for Summary Judgment, filed November 5, 1984; Plaintiff Pumpkin Air’s Opposition and Motion to Strike, filed December 21, 1984; Plaintiff Friendly Aviation’s Contest to Motion, filed December 21, 1984; Class Plaintiff’s Response, filed December 31, 1984; Addison Airport’s Reply, filed January 14, 1985; and Addison Airport’s Response to Motion to Strike, filed January 14, 1985.

Factual Background

These actions arise out of the acquisition of Addison Airport by the City of Addison, and the subsequent arrangements between Defendants City, Addison Airport of Texas, Inc. (hereinafter “AATI”), Henry Stuart and Robert Gore in managing and operating the airport. Specifically, Plaintiffs complain of conspiratorial anticompetitive conduct aimed at excluding other entities from selling fuel and leasing space at the airport. Causes of action are premised upon federal antitrust laws, the Federal Aviation Act of 1958, and the Civil Rights Act of 1871, 42 U.S.C. § 1983, and various pendent state law claims.

State Action Immunity

Defendants contend that any anti-competitive actions allegedly engaged in are shielded from liability by the concept of state action immunity, articulated in Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943). The Parker court, weighing the factors of federalism and state sovereignty, concluded that Congress could not have intended by the passage of the Sherman Act to restrain a state from activities directed by its legislature. Id. at 350, 63 S.Ct. at 313. If Plaintiffs were challenging anticompetitive restraints imposed by the state itself, the inquiry in this case need go no further.

Building on Parker, the Supreme Court subsequently held that local governments are exempt from antitrust laws only when they act “pursuant to state policy to displace competition with regulation or monopoly public service”. City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 413, 98 S.Ct. 1123, 1137, 55 L.Ed.2d 364 (1978). An adequate state mandate for anticompetitive activities of cities exists when it is found from the authority given a governmental entity to operate in a particular area, that the legislature contemplated the kind of action complained of. Id. at 415, 98 S.Ct. at 1138. The anticompetitive action must constitute municipal action in furtherance or implementation of clearly articulated and affirmatively expressed state policy, Community Communication Co. v. City of Boulder, 455 U.S. 40, 102 S.Ct. 835, 841, 70 L.Ed.2d 810 (1982), to replace competition with regulation. Hoover v. Ronwin, — U.S. -, 104 S.Ct. 1989, 1995, 80 L.Ed.2d 590 (1984). In addition, it is also relevant to assess the degree to which the state supervises its representative in implementing the challenged policy. Hoover, 104 S.Ct. at 1995; California Retail Liquor Dealers Assoc. v. Midcal Aluminum, Inc., 445 U.S. 97, 105, 100 S.Ct. 937, 943, 63 L.Ed.2d 233 (1980); United States v. Southern Motor Carriers Rate Conference, 702 F.2d 532, 538 (5th Cir.1983) (en banc).

Despite its name, the state action immunity can be available under certain circumstances to private persons. Defendants AATI, Stuart and Gore apparently seek to avail themselves of this shelter. In Southern Motor Carriers, the Fifth Circuit collectively fanned smoldering embers and revived the threshold requirement that a private party demonstrate that its allegedly anticompetitive actions must be “compelled by direction of the State acting as a sovereign”. 702 F.2d at 536. Although language to this effect appeared in earlier opinions, the Hoover court, over a vigorous three-Justice dissent, did not enumerate the requirement of compulsion, referring only to activities carried out pursuant to state authorization. It can likely be concluded that Hoover pried loose the straining fingers of the Fifth Circuit on the compulsion requirement. See State of North Carolina ex rel. Edmisten v. P.I.A. Asheville, 740 F.2d 274, 277 (4th Cir.1984). (After Hoover, it is now “clear” that “a private party has the right [to Parker immunity] even when the state does not compel, but only ‘authorizes’ or ‘approves’ the activity”.)

Clearly Articulated State Policy

Defendants argue that the Texas Municipal Airports Act, Tex.Rev.Civ.Stat. Ann. art. 46d-1 et seq. (Vernon 1969) contains the clear articulation and affirmative expression of state policy to displace competition. The relevant portions of the statute are:

Every municipality is authorized ... to plan, establish, develop, construct, enlarge, improve, maintain, equip, operate, regulate, protect and police airports ... including ... the purchase and sale of supplies, goods and commodities as an incident to the operation of its airport properties. (§ 46d-2(a)).
(a) Under Municipal Operation. In operating an airport or air navigation facility owned, leased or controlled by a municipality, such municipality may, except as may be limited by terms and conditions of any grant, loan, or agreement pursuant to Section 12 of this Act, enter into contracts, leases and other arrangements for a term not exceeding forty (40) years with any persons:
(1) granting the privilege of using or improving such airport or air navigation facility or any portion or facility thereof, or space therein for commercial purposes;
(2) conferring the privilege of supplying goods, commodities, things, services or facilities at such airport or air navigation facility; or
(3) making available services to be furnished by the municipality or its agents at such airport or air navigation facility.
In each case, the municipality may establish the terms and conditions and fix the charges, rentals or fees for the privileges for services, which shall be reasonable and uniform for the same class of privilege or service and shall be established with due regard to the property and improvements used in the expenses of operation to the municipality. (§ 46d-4(a)).
$ sf: sk sk $ sk
(b) Under Other Operation____ [A] municipality may by contract, lease or other arrangement ... grant to any qualified person ... the privilege of operating as agent of the municipality or otherwise, any airport owned or controlled by the municipality. (§ 46d-4(b)).
sk ¡k *k sk sk sk
No ordinance, resolution, rule, regulation, or order adopted by a municipality pursuant to this act shall be inconsistent with, or contrary to, any act of the Congress of the United States or laws of this state, or to any regulations promulgated or standards established pursuant thereto. (§ 46d-7).

In Woolen v. Surtran Taxicabs, Inc., 461 F.Supp. 1025 (N.D.Tex.1978), Judge Higginbotham examined the application of a state action immunity claim based upon the Municipal Airport Act. The court concluded, after examination of the then-existing Supreme Court precedent that the Act did not represent a state policy “to displace competition with regulation or monopoly service”:

The conclusion is all but inescapable that the Texas Legislature did not contemplate the implementation of anti-competitive activities by municipalities in their operation of airports. While it is conceivable that this latter provision [46d-7] was not intended to encompass the antitrust laws, its plain meaning cannot be ignored.

461 F.Supp. at 1031.

The fact that Woolen involved an exclusive taxicab franchise at the airport, as opposed to services more directly related to aviation, is of no consequence, given Woolen’s reliance on a strict issue of statutory construction and legislative intent. Similarly, despite Defendants’ unelaborated argument that “the conclusions of Woolen may not be correct in light of recent authority”, Reply at 5, subsequent Supreme Court authority at a minimum has confirmed the necessity for the analysis conducted by Judge Higginbotham and may possibly impose additional requirements of compulsion and/or active supervision. There is no suggestion in the record that Defendants could satisfy either of these heightened thresholds.

Defendants rely heavily on Pueblo Aircraft Service, Inc. v. City of Pueblo, 679 F.2d 805 (10th Cir.1982), cert. denied, 459 U.S. 1126, 103 S.Ct. 762, 74 L.Ed.2d 977 (1983). In Pueblo, the Tenth Circuit found the Colorado Public Airport Authority law to be “clear, plain and unambiguous” in providing a basis for state action immunity. Although the Colorado provisions are similar in their authorizations to the Texas Act, the former does not appear to contain a section comparable to § 46d-7, subordinating the law’s provisions to the mandates of federal law.

Accordingly, the Court is of the opinion that Defendants do not meet the requirements for Parker state action immunity.

Noerr-Pennington

The private Defendants argue that any allegedly anticompetitive arrangements existing at Addison Airport have arisen as a result of bona fide attempts to obtain or influence legislative, executive and administrative actions. As such, they argue, the resulting arrangements are immune from antitrust liability. Eastern Railroad Presidents Conference v. Noerr-Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961).

The Court must concede that it encounters some difficulty because there is no recitation of the facts upon which the application of this doctrine depends. As an initial matter, it should be noted that this doctrine arises out of the First Amendment prohibition against laws abridging the right to petition the Government for a redress of grievances. Thus, broadly stated, the Noerr-Pennington immunity applies only to fend off antitrust liability for the act of petitioning for an anticompetitive governmental action, or banding together with competitors for such purpose. See generally Feminist Women’s Health Center v. Mohammad, 586 F.2d 530, 542 (5th Cir.1978), cert. denied, 444 U.S. 924, 100 S.Ct. 262, 62 L.Ed.2d 180 (1979). The doctrine most certainly does not insulate every arrangement, contractual or otherwise, reached between private parties and a government entity. It is unclear which allegations of the complaints Defendants suggest are appropriate for application of Noerr-Pennington.

The well-known counterpart to this doctrine is the “sham” exception. See California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972). The resulting, and obvious, principle is that if the petitioning activity is a mere sham, disguising an abuse of governmental processes, then it is inappropriate to afford the perpetrators immunity from the resulting antitrust violations. Similarly, if public officials are participants in a conspiracy, the deference to the First Amendment is unwarranted and there is no exception to antitrust liability. Affiliated Capital Corp. v. City of Houston, 735 F.2d 1555, 1566 (5th Cir.1984), reh. denied en banc, 741 F.2d 766 (5th Cir.1984). There are material issues of fact regarding a potential conspiracy among named Defendants and non-parties in this case. Summary judgment is inappropriate. Rule 56, Fed.R.Civ.P.

Per Se or Rule of Reason

Defendants argue that the protested conduct is legal per se under the antitrust laws, citing several cases validating exclusive distributorships and related arrangements. An exclusive grant of authority to be the sole fixed base operator at an airport is not necessarily illegal under the antitrust laws. E.W. Wiggins Airways, Inc. v. Massachusetts Port Authority, 362 F.2d 52 (1st Cir.1966), cert. denied, 385 U.S. 947, 87 S.Ct. 320, 17 L.Ed.2d 226 (1966).

Plaintiffs’ various responses do not rebut this contention. Plaintiff Friendly Aviation does not address this issue. Plaintiff Pumpkin Air argues curiously that the legality of Defendants’ conduct is a question of fact, and that the conduct is illegal under law other than the antitrust laws, though not independently supportive of a cause of action. Pumpkin Air further argues cryptically that Defendant’s battalion of Supreme Court cases do not apply to summary judgment proceedings. The Court is frankly baffled by this particular distinction. The Class Plaintiffs likewise cite no authority contesting the validity of Defendants’ statements of antitrust laws, posing only the query “what game is being played here?”

Perhaps part of Plaintiffs’ confusion is justifiable. Defendants do not set forth the facts on which their claim of per se legality is based. Thus, assuming arguendo that a game is being played here, the players are not aware whether they are all playing the same one. The Court does not know precisely what conduct or arrangement it is being asked to approve as automatically legal.

The Operating Agreement between the City and AATI does not purport to grant an exclusive right to do anything in particular. See Plaintiffs’ Exhibit 12, Operating Agreement § 7(d)(ii) (“It is specifically understood and agreed that nothing herein contained should be construed as granting or authorizing the granting of an exclusive right within the meaning of Section 308(a) of the Federal Aviation Act. 49 U.S.C. § 1349(a)).

The Court is also puzzled by Defendants’ reliance on the theory that the City granted an exclusive privilege to AATI to conduct its various affairs at the airport. The depositions and affidavits before the Court reflect that Defendants AATI and Stuart did not consider themselves to be the holders of monopoly licenses, but rather devised a system of “fuel flowage fees” and similar strictures to restrict entry of competitors. See Pumpkin Air’s Exhibit 55. This was not part of the initial arrangement reached with the City, see Seeley Dep. I 74-77; Webster Dep. 29. Similarly, the denial of access to space by potential lessees was not the result of an exclusive grant by the City, but rather of unilateral actions by AATI and Stuart. See Pumpkin Air’s Ex. 46, 47, 48; Stuart Dep. 227-231.

Assuming for a moment that the unilateral grant of a monopoly by the City would be permissible under the antitrust laws, but see 49 U.S.C. § 1349(a), it does not follow that an identical resultant market structure is acceptable if arrived at through nefarious unilateral means by a competitor.

Accordingly, the state of the factual presentation before the Court bars summary judgment on this point at this time.

Private Cause of Action under 49 U.S.C. § 1349(a)

Defendants have moved for summary judgment on Plaintiffs’ claims alleged under 49 U.S.C. § 1349(a), which currently reads, in relevant part:

There shall be no exclusive right for the use of any landing area or air navigation facility upon which federal funds have been expended. For purposes of the preceding sentence, the providing of services at an airport by a single fixed-based operator should not be construed as an exclusive right if it would be unreasonably costly, burdensome, or impractical for more than one fixed-based operator to provide such services, and if allowing more than one fixed-based operator to provide such services would require the reduction of space leased pursuant to an existing agreement between such single fixed-based operator and such airport.

The second quoted sentence was added by amendment by Public Law 97-248, effective September 3, 1982.

Plaintiffs cite two cases to support the implication of a private cause of action. In Continental Bus System, Inc. v. City of Dallas, 386 F.Supp. 359, 363-64 (N.D.Tex.1974), Judge Porter of this Court examined the provision and found that it was not directed to address the situation at issue in that case. He did not reach the question of whether, given applicability of the statute, a private party has a remedy under it.

In Niswonger v. American Aviation, Inc., 411 F.Supp. 769 (E.D.Tenn.1975), aff'd, 529 F.2d 526 (6th Cir.1976), the court granted a declaratory judgment that a clause of a lease between a fixed-base operator and an airport was violative of § 1349(a). This case antedated the Supreme Court’s statement of the relevant analysis to determine the existence of an implied right of action in Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087, 45 L.Ed.2d 26 (1975). Moreover, only equitable relief was sought and granted, as opposed to the damage remedy sought here. See Pumpkin Air’s Amended Complaint, Count IV; Trice Complaint, ¶ 38. Such a remedy is contemplated by the Declaratory Judgment Act, 28 U.S.C. § 2201, cited in the court’s opinion. 411 F.Supp. at 770.

The only opinion addressing the Cort factors’ application to § 1349(a) is Hill Aircraft and Leasing Corp. v. Fulton County, 561 F.Supp. 667, 673 (N.D.Ga.1982), affirmed, 729 F.2d 1467 (11th Cir.1984). The Court considered Niswonger and concluded that no private cause of action exists for violation of § 1349. Accord Guthrie v. Genesee County, 494 F.Supp. 950 (W.D.N.Y.1980). The Court finds this reasoning to be correct.

Accordingly, Defendants’ Motions for Summary Judgment are granted as to claims for damages arising under § 1349.

Claims Under Section 1983

Defendants also move for summary judgment on Plaintiff Pumpkin Air’s claims under § 1983. Defendants correctly note that a corporate plaintiff cannot maintain an action for deprivation of Fourteenth Amendment “privileges and immunities”. Hague v. Committee for Industrial Organization, 307 U.S. 496, 514, 59 S.Ct. 954, 963, 83 L.Ed. 1423 (1939). Defendants further argue that the § 1983 claim is too conclusory to support recovery.

Plaintiffs respond that their claim is one based on due process and equal protection, violated by the promulgation of discriminatory leasing practices, restrictive safety standards designed to limit competition, and the promulgation and development of restrictive and excessive fuel flow-age fees.

Viewed by the standards applicable to a motion to dismiss, the Court is of the opinion that under no set of facts can Plaintiff prevail under the due process clause. The law does not recognize a right under the due process clause to be free from “anti-competitive injury”. Hill Aircraft, supra.

With respect to the equal protection issue, the Court can conceive of facts under which such a claim could prevail, but cautions Plaintiff that it will have to satisfy the grueling “rational relationship” test to sustain a classification unrelated to fundamental rights or suspect classes. See Hill Aircraft, 561 F.Supp. 679 n. 10.

Accordingly, the Court is of the opinion that Defendants’ Motions for Summary Judgment are GRANTED IN PART and DENIED IN PART, and Plaintiffs’ claims under 49 U.S.C. § 1349(a) and under the due process clause of the Fourteenth Amendment should be, and hereby are, DISMISSED.

SO ORDERED.

      . The Supreme Court granted certiorari on Southern Motor Carriers, - U.S. -, 104 S.Ct. 3508, 82 L.Ed.2d 818 (1984) and a related case to examine the status of compulsion and state supervision requirement for Parker immunity. Argument was heard on November 26, 1984. See 53 U.S.L.W. 3411.

      . The Federal Aviation Administration and the City of Addison executed grant agreements to fund and develop Addison Airport. Exhibit A, Defendants' Response to Motion to Strike. One of the express terms of the grant is that the City and its agents are required to manage the airport as a non-exclusive, non-discriminatory and uniform basis pursuant to 49 U.S.C. § 1349(a).

      . At least it was not addressed in the opinion. Colo.Rev.Stat. § 41-4-105 contains a functionally analogous provision, but it refers only to the federal Constitution, and not federal laws.

      . To the extent that the petitioning activities are identified as certain actions by Defendant Stuart regarding amendment of the Addison fire code, there is apparently undisputed evidence that Stuart made factually incorrect representations. King Deposition at 86-91. Misrepresentations do not qualify for Noerr-Pennington protection. Woods Exploration and Producing Company v. Aluminum Company of America, 438 F.2d 1286 (5th Cir.1971), cert. denied, 404 U.S. 1047, 92 S.Ct. 701, 30 L.Ed.2d 736 (1972).

      . Such an arrangement may indeed violate the Texas Municipal Airport Act and the FAA Grant Agreements.

      . This portion of the motion might be more accurately characterized as a motion to dismiss.

      . This argument is again more appropriately the subject of a motion to dismiss or, perhaps, for a more definite statement. Defendants have not presented any facts or evidence to justify a summary judgment on this point.

      . The Court notes that Defendant City has recently moved to dismiss Plaintiffs’ claims for monetary damages pursuant to the Local Government Antitrust Act of 1984. A separate ruling will be forthcoming on this issue after all responses are before the Court.


source: Caselaw Access Project

author: MOTLEY, Chief Judge.

license: Public Domain

text:
    RECUMAR INC., as agents for La Libertad, Cia. General De Seguros S.A., Seguros, La Commercial, S.A., Wearever De Mexico, S.A., Popular Y Provenir Compania De Seguros, Importaciones, Representaciones, I.O., Isaac Sheinberg K., Plaintiffs, v. KLM ROYAL DUTCH AIRLINES, Koninklijke Luchtvaart Maatschappij, Defendants.
    No. 83 Civ. 8710.
    United States District Court, S.D. New York.
    Jan. 29, 1985.

      Harold M. Kingsley, New York City, for plaintiffs.
    Condon & Forsyth by Stephen J. Fearon, New York City, for defendants.
   OPINION

MOTLEY, Chief Judge.

This is an action to recover money damages in the amount of $11,553.98 for the alleged loss of three consignments of goods shipped by defendant. Defendant KLM Royal Dutch Airlines (hereinafter “KLM”) has moved for summary judgment to dismiss two of the three claims brought by plaintiffs on the ground that the court is without subject matter jurisdiction over these claims under the Warsaw Convention. KLM also seeks dismissal of all three claims on the grounds of forum non conveniens. For the reasons stated below, defendant’s motion for summary judgment is granted in part.

FACTS

Plaintiffs, Recumar Inc., et al. (hereinafter “RECUMAR”), the foreign owners or authorized representative of the foreign owners or underwriters of the cargo allegedly shipped and lost by defendant, bring this action to recover money damages in the amount of $11,553.98. Plaintiffs’ claims arise from the alleged loss of three separate consignments of goods shipped on KLM between different countries at different times.

Consignment “A” was shipped pursuant to a KLM air waybill (# 074-4001-2442) issued in Zurich, Switzerland, which provided for transportation with Zurich, the place of origin and Mexico City, Mexico, the destination. Consignment “B” was shipped pursuant to a KLM air waybill (# 074-8645-0136) issued in Bombay, India, which provided for transportation with Bombay the place of origin and Mexico City, the destination. Consignment “C” was shipped pursuant to a KLM air way bill (#074-8715-2063) issued in Curacao, Netherlands, which provided for transportation with the place of origin listed as Curacao and Lima, Peru, the destination.

Defendant KLM, a corporation organized and existing under the laws of The Netherlands with its corporate headquarters and principal place of business in Amstelveen, The Netherlands, brings this motion for summary judgment to dismiss this action on the grounds of lack of subject matter jurisdiction with respect to Consignments “A” and “B”, and forum non conveniens with respect to all three of RECUMAR’s claims. RECUMAR asserts as the basis for New York being the proper forum that New York is the only place in which both RECUMAR and KLM have offices and conduct business.

DISCUSSION

A. Subject Matter Jurisdiction

KLM contends that RECUMAR’s claims concerning Consignments “A” and “B” are governed exclusively by provisions of a treaty of the United States commonly known as the Warsaw Convention. The United States has been a party to the Warsaw Convention since October 29, 1934. 49 Stat. 3000 (1984). The Warsaw Convention, as a treaty of the United States, is the supreme law of the land. U.S. Const. Art. VI; Smith v. Canadian Pacific Airways, Ltd., 452 F.2d 798, 801 (2d Cir.1971).

The Warsaw Convention applies “to all international transportation of persons, baggage or goods performed by aircraft for hire.” 49 Stat. 3014. Article 1(2) defines “international transportation” as:

any transportation in which, according to the contract made by the parties, the place of departure and the place of destination, whether or not there be a break in the transportation or a transshipment, are situated either within the territories of two High Contracting Parties, or within the territory of a single High Contracting Party, if there is an agreed stopping place within a territory subject to the sovereignty, suzerainty, mandate or authority of another power, even though that power is not a party to the convention.

49 Stat. 3014.

The relevant contract of transportation and reference to the provisions of the Warsaw Convention determine the applicability of the Convention. Therefore, where the air waybill provides for transportation by air between certain designated terminals, the provisions of the Warsaw Convention apply to the transportation and determine the rights of the parties. Benjamins v. British European Airways, 572 F.2d 913, 914 (2d Cir.1978), cert. denied, 439 U.S. 1114, 99 S.Ct. 1016, 59 L.Ed.2d 72 (1979).

With respect to Consignment “A”, since Switzerland, the place of origin, is an original signatory to the Warsaw Convention, and Mexico, the country of destination, ratified the Convention on February 14, 1933, it is clear that “the place of departure and the place of destination ... are situated ... within the territory of two High Contracting Parties.” Article 1(2), Warsaw Convention, 49 Stat. 3014. Thus, Consignment “A” falls squarely within the definition of “international transportation.”

With respect to Consignment “B”, since the transportation orginated in India, which ratified the Convention on January 29, 1970, and was destined for Mexico, it is clear that “the place of departure and the place of designation ... are situated ... within the territory of two High Contracting Parties”, as in the case of Consignment “A”. Article 1(2), Warsaw Convention, 49 Stat. 3014. Again, the transportation falls squarely within the definition of “international transportation.”

With respect to Consignment “C”, the Warsaw Convention is not applicable since its transportation did not take place between the territory of “two High Contracting Parties.” Peru, the place of destination for the transportation, has neither signed nor ratified the Convention.

The exclusivity of the Warsaw Convention to any claim for damages arising out of “international transportation” is established in Article 24 of the Convention. Article 24 provides:

(1) In the cases covered by articles 18 and 19 in any action for damages, however founded, can only be brought subject to the conditions and limits set out in this convention.

49 Stat. 3020.

Article 28(1) describes the options available to a plaintiff in a Warsaw Convention case in determining the forum in which an action may be brought. The plaintiff has available four specified forums:

(a) the domicile of the carrier;
(b) the carrier’s principal place of business;
(c) the carrier’s place of business through which the contract has been made; or
(d) the place of destination.

49 Stat. 3020.

The Second Circuit has held that the courts of the United States lack subject matter jurisdiction over an action for damages governed by the Warsaw Convention where none of the places specified in Article 28(1) of the Convention is in the United States. Canadian Pacific Airways, Ltd., 452 F.2d at 801; Gayda v. LOT Polish Airlines, 702 F.2d 424, 426 (2d Cir.1983). Since Canadian Pacific Airways it has been recognized that where Article 28 of the Convention applies dismissal of the complaint for lack of treaty jurisdiction is mandated where none of the four forums enumerated in Article 28 is in the United States. Gayda, 702 F.2d at 425.

In the instant action it is clear that none of the places specified in Article 28 is in the United States. KLM is incorporated under the laws of The Netherlands. Therefore KLM’s domicile with respect to Article 28 is that country. See Canadian Pacific Airways, Ltd., 452 F.2d at 802.

With respect to Article 28, a corporation may have only one principal place of business. Id. KLM’s corporate and operational headquarters are located in The Netherlands. Thus, The Netherlands is also KLM’s principal place of business.

The contracts of carriage for Consignments “A” and “B” are air waybills. The place where the air waybill was issued generally is regarded as the carrier’s place of business through which the contract was made. Id., at 803. Since the air waybill for Consignment “A” was issued in Switzerland and the air waybill for Consignment “B” was issued in India, Switzerland and India are the respective places of business through which the contracts were made.

With respect to Article 28, the place of destination is the ultimate destination of the transportation stated on the air waybill. Id. at 802. Consignments “A” and “B” both specified Mexico as the ultimate place of destination in their respective air waybills. Thus, the place of destination for both transportations was Mexico.

Subject matter jurisdiction over Consignments “A” and “B” is precluded by the Warsaw Convention. The Warsaw Convention, however, does not apply to Consignment “C” since its transportation did not take place between two “High Contracting Parties.”

B. Forum Non Conveniens

The decision whether to dismiss an action on the ground of forum non conveniens is committed to the sound discretion of the district court. Piper Aircraft Company v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 266, 70 L.Ed.2d 419, (1981). In exercising that discretion, the court is to weigh certain enumerated factors involving both the private interest of the litigants and the public interest. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947) and Piper Aircraft Corp. v. Reyno, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419. In Gulf Oil Co., the Supreme Court articulated the private and public interest that a court must weigh in deciding whether a plaintiff’s choice of forum should be rejected on grounds of forum non conveniens. The applicable factors pertaining to the private interest of the litigants include the relative ease of access to sources of proof; the availability of compulsory process for attendance of unwilling, and the cost of obtaining willing witnesses; questions as to the enforceability of a judgment if one is obtained; and all other practical problems that make trial of the case easy, expeditious, and inexpensive. Gulf Oil, 330 U.S. at 508-09, 67 S.Ct. at 843. The public interest concerns include: the administrative problems effected by court congestion, the local interest in the litigation, the avoidance of unnecessary problems in conflicts of law and the application of foreign law. Id. at 509, 67 S.Ct. at 843. In addition, a court must evaluate the enforceability of a judgment rendered by it, “weigh relative advantages and obstacles to fair trial,” and determine whether the plaintiff has instituted suit in a particular forum with the intent to vex or harass the defendant. Id. at 508, 67 S.Ct. at 843.

The plaintiff’s choice of forum should only be disturbed where the balance is strongly in favor of the defendant. Gulf Oil, 330 U.S. at 508, 67 S.Ct. at 843. The relevant inquiry is whether it would be so much easier and fairer to try the case in an alternative forum than in New York that the balance strongly favors dismissal. Manu International, S.A. v. Avon Products, Inc., 641 F.2d 62, 65 (2 Cir.1981).

Plaintiffs RECUMAR correctly argue that defendant KLM must show that there is an adequate alternative forum which possesses jurisdiction over the entire action and the defendant before the action may be dismissed on forum non conveniens grounds. It is well-established that the defendant has the burden of proof on this issue and such a showing is a prerequisite to a forum non conveniens inquiry. Schertenleib v. Traum, 589 F.2d 1156, 1159-60 (2d Cir.1978); Gibbons v. Udaras na Gaeltachta, 549 F.Supp. 1094, 1120 (S.D.N.Y.1982).

Upon a showing that an adequate alternative forum exists a forum non conveniens dismissal is theoretically possible. Such a dismissal, however, is only appropriate if the court determines that a balancing of the private and public interest factors clearly point towards a trial in that alternative forum. Gibbons v. Udaras, 549 F.Supp. at 1120; See Piper Aircraft Co. v. Reyno, 102 S.Ct. at 265.

The Second Circuit, in Overseas Programming Companies, Ltd. v. Cinematographische Commerz-Anstalt, 684 F.2d 232 (2d Cir.1982), stated that the court must designate the more convenient forum to which the parties should be relegated. It is not enough for the court to merely consider the drawbacks of one forum; rather the court must weigh the relative convenience of the chosen forum against that of the alternative forum. Thus, the final balancing involves weighing the relative advantages of each forum. Id. at 235.

KLM has failed to satisfy its burden in showing that there is an adequate alternative forum. It merely summarily suggests the Netherlands, the Netherland Antilles, or Peru as alternative forums without any specificity as to the convenience of the forums. Accordingly, it is impossible for this court to weigh the relative advantages of the various forums and to designate a more convenient forum. Defendant’s motion to dismiss on the ground of forum non conveniens must be denied.

CONCLUSION

Subject matter jurisdiction over Consignments “A” and “B” is precluded by the Warsaw Convention. Defendant’s motion for summary judgment to dismiss on the ground of lack of subject matter jurisdiction is granted with respect to plaintiff’s first two claims. With respect to Consignment “C”, defendant’s motion for summary judgment to dismiss on the ground of forum non conveniens is denied.

SO ORDERED.

      . Official title: Convention for the Unification of Certain Rules Relating to International Transportation by Air, October 12, 1929; 49 Stat. 3000 (1934), T.J. No. 876, 137 L.N.T.J. 22, reprinted in 49 U.S.C. 1502 note (1976).

      . Shawcross & Beaumont, Air Law, App. A at 20 (4th ed. 1983).

      . Id., at 19.

      . See footnote 2, supra, at 18.


author: MAZZONE, District Judge.

text:
    PLANNED PARENTHOOD LEAGUE OF MASSACHUSETTS, Crittenton Hastings House & Clinic, Phillip G. Stubblefield, M.D., Jane Doe, and all others similarly situated, Plaintiffs, v. Francis X. BELLOTTI, Attorney General of the Commonwealth of Massachusetts; Alfred L. Frechette, M.D., Commissioner of Public Health of the Commonwealth of Massachusetts; Newman Flanagan, District Attorney of the County of Suffolk, in that capacity and as a representative of a class of the District Attorneys of all other Counties; Arthur Mason, Administrative Chief Justice of the Trial Court of Massachusetts; Thomas R. Morse, Chief Justice of the Superior Court Department; and Michael J. Donovan, Clerk of Suffolk Superior Court, their agents, successors, those acting in concert with them, and all others similarly situated, Defendants.
    No. Civ. A. 80-1166-MA.
    United States District Court, D. Massachusetts.
    Feb. 11, 1985.

      John H. Henn, Sandra L. Lynch, Foley, Hoag & Eliot, Boston, Mass., for plaintiffs.
    Stephen S. Ostrach, Asst. Atty. Gen., Government Bureau, Boston, Mass., for defendants.
   MEMORANDUM AND ORDER

MAZZONE, District Judge.

This is a class action for declaratory and injunctive relief in which the plaintiffs allege that Section 12S of the Massachusetts abortion statute, Mass.Gen.Laws ch. 112 § 12S, is unconstitutional as administered and as applied. Section 12S governs inter alia, judicial authorization for minors’ abortions.

The class plaintiffs are Planned Parenthood League of Massachusetts, Crittenton Hastings House and Clinic, Phillip G. Stubblefield, M.D. and Jane Doe, an unmarried pregnant woman under the age of 18 (hereinafter referred to collectively as Planned Parenthood or plaintiffs). The class defendants are comprised of two groups. One group of defendants was named when this action was first brought in federal court in 1980. These “original defendants” are Francis X. Bellotti, the Attorney General of Massachusetts; Alfred L. Frechette, M.D., former Massachusetts Commissioner of Public Health; and Newman Flanagan, District Attorney of Suffolk County.

The second group of class defendants, the “judicial defendants,” were named in 1984 through Planned Parenthood’s motion to amend the complaint. The judicial defendants are Arthur Mason, Administrative Chief Justice of the Trial Court of Massachusetts and Thomas R. Morse, Chief Justice of the Superior Court Department. These individuals are representative of all judges authorized to hear minors’ abortions petitions under Section 12S. In addition, the judicial defendants include Michael J. Donovan, Clerk of Suffolk Superior Court. Mr. Donovan is named as a representative of all clerks authorized to process minors’ abortion petitions under Section 12S. Relief is authorized by 42 U.S.C. § 1983 and 28 U.S.C. § 2201. Jurisdiction is proper under 28 U.S.C. §§ 1343(a)(3) and 1331.

I. Background

Section 12S sets forth the process through which minor women obtain consent before securing an abortion. Under the statute, women below age 18 who seek an abortion in Massachusetts must obtain parental consent. If a minor woman does not obtain parental consent, however, Section 12S establishes a procedure through which the minor may petition a judge of the Superior Court Department for judicial consent. After a prompt hearing, the statute provides that a judge may authorize a physician to perform an abortion on the minor. Judicial authorization is sufficient if the minor’s parents have refused to consent to the abortion, or if the parents are unaware of the minor’s desire to obtain an abortion.

This federal court challenge to the constitutionality of Section 12S was first launched in 1980. At that time, the plaintiffs named only the original defendants in their complaint. In 1980, the plaintiffs argued that Section 12S was unconstitutional on its face under both United States and Massachusetts constitutions. The plaintiffs requested a preliminary injunction from this Court to prevent the statute from becoming effective. After a three day hearing in August, 1980, this Court refused to grant a preliminary injunction and issued a Memorandum of Decision. Planned Parenthood League of Massachusetts v. Bellotti, 499 F.Supp. 215 (D.Mass.1980). On appeal, the First Circuit affirmed in part and also refused to issue an injunction blocking the implementation of the Section 12S consent scheme. 641 F.2d 1006 (1st Cir.1981).

On April 16, 1981, after the First Circuit’s decision, Planned Parenthood filed an action in the Massachusetts state court which challenged the facial constitutionality of Section 12S under the Massachusetts constitution. Planned Parenthood League of Massachusetts v. Flanagan, (formerly S.J.C. No. 81-124; transferred and presently Suffolk Superior No. 48796) (hereinafter Flanagan). Through their state court action the plaintiffs sought an injunction from the Supreme Judicial Court of Massachusetts to prevent Section 12S from becoming effective. After a hearing before the full bench of the Supreme Judicial Court on April 22, 1981, the plaintiffs’ request for injunctive relief was denied. As a result, Section 12S went into effect on April 23, 1981.

Subsequently, in May, 1981, Planned Parenthood amended its Flanagan complaint to raise as applied challenges to the administration of Section 12S by the Superior Courts. On June 16, 1981, in response to a request from Planned Parenthood, Supreme Judicial Court Associate Justice Paul Liacos issued a “Memorandum Under the General Superintendency Power Concerning the Implementation of St.1980, Chapter 240, Inserting G.L. Chapter 112, Section 12S.” The Liacos memorandum articulated several suggested guidelines for the processing and determination of minors’ abortion petitions in the Massachusetts superior courts.

After the Liacos memorandum was issued, the Flanagan case was transferred to Suffolk Superior Court. In that forum, the parties agreed to an order issued by Judge Morse which requires clerks of the various superior courts in Massachusetts to maintain statistical records on the operation of Section 12S. These records reflect the number of minors’ abortion petitions processed, the length of time involved, the number of trips a minor must make to a court house, and other facts pertinent to the administration of the judicial consent procedure established in Section 12S. Judge Morse’s order also requires that the statistical information be made available to Planned Parenthood’s counsel.

According to Planned Parenthood, since the day Section 12S went into effect, they have monitored the statute’s operation closely. Using the information obtained under Judge Morse’s order in the Flanagan case, and through their own inquiries, the plaintiffs have gradually assembled the facts which they feel are sufficient to challenge the constitutionality of Section 12S as implemented. For example, they allegedly have discovered instances of undue delay, and, in their opinion, harassment and judicial misconduct in the processing of minors’ abortion petitions under Section 12S.

The instant federal court action against the judicial defendants represents the culmination of the plaintiffs’ fact-finding and data collection regarding the operation of the Section 12S judicial consent process. For example, Planned Parenthood has filed an affidavit with this Court which describes how at least one Superior Court judge engaged in lengthy questioning of a minor which may have reflected the judge’s own moral or religious beliefs. Planned Parenthood now claims that the judicial consent scheme is unconstitutional as applied or implemented by the judicial defendants. Through the instant federal action, Planned Parenthood seeks a declaration and order from this Court that such judges are “de facto unavailable” for Section 12S proceedings. Affidavit of John H. Henn in Opposition to Judicial Defendants’ Motion to Dismiss at 9. In short, Planned Parenthood’s counsel has informed this Court that the plaintiffs “seek findings as to the facts regarding delay and burden and then seek declaratory relief against those responsible for implementing the system and injunctive relief against those responsible for enforcing § 12S.” Id. at 10.

This action is presently before this Court on the judicial defendants motion to dismiss. They oppose Planned Parenthood’s complaint seeking declaratory and injunctive relief on numerous grounds. The judicial defendants have advanced arguments based on such diverse theories as judicial immunity, failure to state a valid cause of action, absence of a constitutionally mandated case or controversy, failure to satisfy the requirements for equitable relief, abstention and dismissal under Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). Despite the variety of their theories, the judicial defendants have articulated a theme which they maintain is the foundation upon which all of their legal arguments are constructed. Namely, they asked this Court to consider whether a federal court may “sit as a superjudge over an entire state judicial system?” Defendants’ Memorandum in Support of Motion to Dismiss at 6. Planned Parenthood has opposed the judicial defendants’ motion to dismiss through a memorandum and the affidavit of Planned Parenthood’s counsel, John Henn.

With this recitation of the background of this action in mind, I turn to a discussion of judicial defendants’ motion to dismiss.

II. Discussion

A. Federal-State Relations

1. The Relevance of Federalism

The judicial defendants have characterized Planned Parenthood’s action against them as one which endangers the delicate relationship between our National Government and the several states. The balance of power that exists between our sovereign states and the federal government forms the unique basis for our system of government under the United States Constitution. In this case, the judicial defendants claim that Planned Parenthood is disrupting this balance by asking this Federal Court to supervise the operation of the state courts through its equitable power. For this reason, the judicial defendants have petitioned this Court to employ principles of federalism and comity as it considers the propriety of Planned Parenthood’s action against them, and concomitantly, the viability of the judicial defendants’ motion to dismiss.

Planned Parenthood on the other hand, has characterized the judicial defendants’ federalism argument as a “red herring.” Plaintiffs’ Memorandum, supra, at 1. They reject the idea that through this action, they will impair federal-state relations or seek to have this Court supervise a branch of the state judiciary. According to the plaintiffs, no federalism problem is presented because, after prevailing on the merits of this “as implemented” attack on the constitutionality of Section 12S, they do not envision specific injunctive relief against members of the Massachusetts judiciary. See Henn Affidavit, supra, at 8. Rather, they seek a declaration that the judicial consent system established by the statute is unconstitutional as applied by the defendants. In the wake of such declaration, however, Planned Parenthood does envision injunctive relief against class defendants responsible for enforcing Section 12S. Id. at 10. Thus, Planned Parenthood argues with some finesse that in the absence of a request for specific injunctive relief against the judicial defendants, this Court should not concern itself with issues of federalism.

Contrary to Planned Parenthood’s view, however, this Court’s decision to explore the federalism issues posed by this action is not determined by whether or not injuncfive relief will issue against a state judge. Even if the plaintiffs’ argument that no specific injunctive relief will be sought against the judicial defendants is accepted, the maintenance of appropriate federal-state relations is still an issue before this Court. Indeed, the Supreme Court stated in a recent case involving a federal action against a member of Virginia’s judiciary that principles of federalism and comity should be considered by a federal court regardless of whether the target of any injunctive relief is a state judicial officer.

In Pulliam v. Allen, — U.S. -, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984), the Supreme Court ruled that federal courts had the power to issue injunctions against state judicial officers under 42 U.S.C. § 1983. In deciding that case, the Court was asked to consider the impact its ruling might have on “the proper functioning of federal state relations.” Id. 104 S.Ct. at 1979. Specifically, the magistrate enjoined in Pulliam argued that the independence of the state judiciary would be in peril if a federal court, through its injunctive power, “could sit in constant supervision of the actions of state judicial officers.” Id. Accordingly, the magistrate petitioned the court to consider the danger such equitable supervision would pose to traditional notions of federal-state relations under the doctrine of judicial immunity. Id.

The Supreme Court, however, refused to view the federalism problem raised by federal court injunctions against state judicial officers as a concern rooted solely in traditional principles of judicial independence or the doctrine of judicial immunity. Rather, in the court’s view, “intrusion into the state process would result whether the action enjoined were that of a state judge or of another state official.” According to the Court, federal court intervention should be “addressed as a matter of comity and federalism independent of principles of judicial immunity.” Id. Next, citing O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974), Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972) and Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the court stated “[w]e reaffirm those principles and the need for restraint by federal courts called on to enjoin the actions of state judicial officers.” Id. 104 S.Ct. at 1979-1980.

In the instant case, therefore, regardless of the dispute between Planned Parenthood and the judicial defendants over how far and to whom the requested injunctive relief may reach, Pulliam teaches that this Court is obligated to consider principles of federalism and comity. Federalism considerations are triggered not by the target of Planned Parenthood’s requested relief, but by the nature of Planned Parenthood’s action. Having failed in their attempt to strike down Section 12S on its face, Planned Parenthood now attacks the process through which this state statute is administered and implemented. The defendants in this action are state law enforcement officials, a state administrator and most recently state judicial officers. What Planned Parenthood seeks, therefore, is what the Pulliam Court termed a federal “intrusion into the state process.” Pulliam v. Allen, supra, at 1979. Accordingly, as a federal court, this Court must consider principles of federalism and comity before acting. More precisely, it must be determined in the case at bar whether the intrusion into the state judicial process sought by Planned Parenthood must necessarily come from a federal court. Or, whether it is more appropriate to exercise the “restraint” recommended by the Supreme Court in Pulliam.

2. Federalism, Comity and the Judicial Defendants

Presently, in deciding this motion to dismiss, this Court must employ principles of federalism and comity as it considers the viability of Planned Parenthood’s federal action against the judicial defendants. An examination of this action reveals federalism and comity concerns at two levels. First, the subject matter of the suit is the state’s superior courts’ method of processing minors’ petitions for judicially sanctioned abortions under Section 12S. Traditionally, the operation of a state’s judiciary has been an area of substantial state interest. Second, Planned Parenthood has brought a parallel action in the state court challenging the application of the Section 12S judicial consent scheme in the superior courts. Flanagan, supra. Under principles of federalism and comity therefore, given the existence of an ongoing parallel state proceeding, this Court must determine whether Planned Parenthood’s action against the judicial defendants would be more appropriately adjudicated in the state system.

Perhaps the best articulation of the principles of federalism and comity that this Court must employ is found in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). In that landmark case, the Supreme Court offered a definition of what it subsequently termed a “vital consideration.” Huffman v. Pursue Ltd., 420 U.S. 592, 601, 95 S.Ct. 1200, 1206, 43 L.Ed.2d 482 (1975). In Younger, the court explained:

The notion of “comity,” that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of state governments, and a continuance of the belief that the National Government will fair best if the States and their institutions are left free to perform their separate functions in their separate ways.

Younger v. Harris, supra, 401 U.S. at 44, 91 S.Ct. at 750. According to the Court, this fundamental concept “for lack of a better and clearer way to describe it is referred to by many as ‘Our Federalism’____” Id. In the Supreme Court’s view, the practical application of “Our Federalism” meant that “the National Government, anxious though it might be to vindicate and protect federal rights and federal interests always endeavors to do so in ways that will not interfere with the legitimate activities of the states.” Id. These pronouncements in Younger have subsequently formed the core of the Supreme Court’s federalism analysis when federal intrusion into the operation of state institutions has been challenged. See, e.g., Middlesex County Ethics Comm’n v. Garden State Bar Ass’n, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982); Moore v. Sims, 442 U.S. 415, 423, 99 S.Ct. 2371, 2377, 60 L.Ed.2d 994 (1979); Judice v. Vail, 430 U.S. 327, 335, 97 S.Ct. 1211, 1217, 51 L.Ed.2d 376 (1977); Trainor v. Hernandez, 431 U.S. 434, 444, 97 S.Ct. 1911, 1918, 52 L.Ed.2d 486 (1977); Huffman v. Pursue Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975).

The state institution which is the subject of the instant matter is the Massachusetts judiciary. Planned Parenthood contests the actions of superior court judges and superior court clerks and their implementation of the Section 12S judicial consent scheme. Planned Parenthood grounds its complaint on instances of alleged harassment and obtrusion by judges authorized to hear minors’ petitions under Section 12S. In addition, according to the plaintiffs, the clerks are responsible for undue delay in the processing of Section 12S petitions.

Under established principles of federalism and comity, the federal system has recognized that states have a particularly significant interest in controlling the operation and integrity of their judicial systems. Middlesex County Ethics Comm’n, supra, 457 U.S. at 432, 102 S.Ct. at 2521; Judice, supra, 430 U.S. at 335, 97 S.Ct. at 1217; Dostert v. Neely, 498 F.Supp. 1144, 1153 (S.D.W.V.1980). Indeed, a state’s ability to maintain the integrity of its own judicial system has been deemed to be “of paramount importance to the state.” Gordon v. Crouchley, 554 F.Supp. 796, 799 (D.R.I. 1982). Therefore, employing notions of federalism, given the important state interest involved, federal courts have referred challenges to the functioning of a state judicial system to state courts. Middlesex County Ethics Comm’n, supra, 457 U.S. at 432, 102 S.Ct. at 2521; Judice, supra, at 335 (principles of federalism and comity annunciated in Younger and Huffman apply to an action under 42 U.S.C. § 1983 against state judges).

The preference for state court disposition of matters concerning the operation of a state judiciary is even more compelling when a parallel action involving the same issues is pending in the state system. Gordon v. Crouchley, supra, at 799 citing Lake Carriers’ Ass’n v. McMullan, 406 U.S. 498, 509-11, 92 S.Ct. 1749, 1756-57, 32 L.Ed.2d 257 (1972). Federalism and comity require that federal courts recognize a state judiciary’s ability to decide identical issues in an ongoing case in the state system. See generally Judice, supra, 430 U.S. at 335, 97 S.Ct. at 1217 (“A State’s interest in the contempt process through which it vindicates the regular operation of its judicial system, so long as that system itself affords the opportunity to pursue federal claims within it is surely an important state interest.”) and Huffman, supra, 420 U.S. at 604, 95 S.Ct. at 1208 (“relevant considerations of federalism ... counsel more heavily toward federal restraint since interference with a state judicial proceeding prevents the state not only from effectuating its substantive policies, but also from continuing to perform the separate function of providing a forum competent to vindicate any constitutional objections interposed against those policies.”); see also Trainor v. Hernandez, supra, 431 U.S. at 440, 444-46, 97 S.Ct. at 1916, 1918-19 and Younger v. Harris, supra, 401 U.S. at 43-47, 91 S.Ct. at 750-752. Respect for the state judicial process not only eliminates needless conflict between the federal and state systems, it also “precludes any presumption that state courts will not safeguard federal constitutional rights.” Middlesex County Ethics Comm’n, supra 457 U.S. at 431, 102 S.Ct. at 2521 (emphasis in original).

In the instant case, therefore, the general principles of federalism and comity gleaned from cases involving federal court challenges to the operation of a state’s judicial system counsel federal restraint for two reasons. First, the subject matter of Planned Parenthood’s action against the judicial defendants is the manner in which superior court judges and clerks process minors’ abortion petitions under Section 12S. Because the action focuses on alleged unconstitutional practices within the state judiciary, federal case law suggests that the subject of Planned Parenthood’s action is an area of intense state interest. This state interest is also evidenced by Mass. Gen.Laws ch. 211 § 3. Through this statute, the Massachusetts Legislature authorized the Massachusetts Supreme Judicial Court to superintend the operation of the state court system and correct all abuses.

Second, federal court restraint under principles of federalism and comity is implicated because Planned Parenthood filed a parallel action which is currently pending in state court. The Flanagan case is an “as applied” challenge to the administration of the Section 12S consent scheme by the superior courts. In that state case, Judge Morse has already begun to address the operation of Section 12S in the superior courts by issuing his order requiring the compilation of statistics regarding the judicial consent procedure. Moreover, the state court must be viewed as a competent forum in which to adjudicate federal constitutional claims. Thus, there is no question that Planned Parenthood may raise arguments under the federal constitution as well as the Massachusetts constitution in the Flanagan case. See Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984).

In sum, therefore, given the subject of the instant action and the existence of a pending parallel state action, serious federalism issues are presented. Accordingly, this Court must exhibit the “restraint” recommended by the Supreme Court in Pulliam v. Allen before reaching the merits of the complaint. See Pulliam, supra, 104 S.Ct. at 1980. This same restraint was prescribed for these circumstances by Justice Cardozo over 50 years ago. In Hawks v. Hammill, 288 U.S. 52, 53 S.Ct. 240, 77 L.Ed. 610 (1933), Cardozo stated:

Caution and reluctance there must be in any case where there is the threat of opposition, in respect of local controversies, between state and federal courts. Caution and reluctance there must be in special measure where relief, if granted, is an interference by the process of injunction with the activities of state officers discharging in good faith their supposed official duties____ Reluctance there has been to use the process of federal courts in restraint of state officials, though the rights asserted by the complainants are strictly federal in origin.

Id. at 60-61, 53 S.Ct. at 243.

The judicial defendants have supplied this Court with several theories upon which to ground its restraint. The theory which is specifically tailored to effectuate judicial restraint based on the federalism and comity issues presented in this case, however, is the doctrine of abstention.

B. Abstention

The abstention doctrine allows a federal court to refrain from exercising its jurisdiction over certain disputes. Because a federal court, ordinarily, has a duty to decide cases properly before it, a decision to abstain is “the exception not the rule.” Colorado River Water Conservation District v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976). “Abdication of the obligation to decide cases can be justified under this doctrine only in the exceptional circumstance where the order to the parties to repair to State court would clearly serve an important countervailing interest.” Id. quoting County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-89, 79 S.Ct. 1060, 1063, 3 L.Ed.2d 1163 (1959).

The “important countervailing interest” which lies at the heart of the abstention doctrine applied in the federal courts is federalism. In a landmark abstention decision, Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), the Supreme Court explained how a proper regard for federal-state relations must trigger a federal court’s equitable discretion to abstain:

New public interests have a higher claim upon the federal chancellor than the avoidance of needless friction with state policies, ... These cases reflect a doctrine of abstention appropriate to our federal system whereby the federal courts exercising a wise discretion, restrain their authority because of a scrupulous regard for the rightful independence of the state governments and for the smooth working of the federal judiciary____ This use of equitable powers is a contribution of the courts in furthering the harmonious relations between the state and federal authority without the need of rigorous congressional restriction of those powers.

Id. at 500, 501, 61 S.Ct. at 645.

The abstention doctrine has been applied in several contexts. For example, federal courts abstain when the constitutionality of a state law is challenged in a federal court before a state’s highest court has an opportunity to review the particular statute. See, e.g., Railroad Commission of Texas v. Pullman Co., supra. In addition, a federal court may abstain when it is faced with a matter involving an area of substantial state interest where federal intervention, should it occur, would result in a disruption of a state’s ability to administer its own affairs. See, e.g., Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). Abstention is also appropriate when a federal court is asked to enjoin an ongoing state judicial proceeding in the absence of certain extraordinary circumstances. See, e.g., Middlesex County Ethics Comm’n, supra, and Younger v. Harris, supra. Finally, abstention may be proper “due to the presence of a concurrent state proceeding for reasons of wise judicial administration....” See, e.g., Colorado River Water Conservation District v. United States, supra 424 U.S. at 818, 96 S.Ct. at 1246.

In the instant case, the judicial defendants have supported their motion to dismiss with abstention arguments based on Younger, Burford, and Colorado River. Planned Parenthood has argued that none of these abstention theories are applicable to this action. Contrary to Planned Parenthood’s view, however, the federalism and comity concerns discussed above render the abstention doctrine applicable to their action against the judicial defendants.

In Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943) the Supreme Court relied on principles of federalism and comity to articulate a distinct abstention theory. Burford abstention is particularly fitting for this case. This abstention theory addresses the federalism concerns raised by Planned Parenthood’s action against the state judicial defendants. Specifically, it enables this Federal Court to defer to Massachusetts’ important state interest in controlling the operation of its superior court system. Furthermore, Bur-ford-type abstention also recognizes the disruption that would occur if this Court employed its equitable power to intervene in the internal workings of the Massachusetts Superior Courts and thus vitiate the Supreme Judicial Court’s superintendency power under Mass.Gen.Laws ch. 211 § 3.

Near the outset of its opinion in Burford, the Supreme Court framed the theory behind Burford abstention:

Although a federal equity court does have jurisdiction of a particular proceeding; it may, in its sound discretion, whether its jurisdiction is invoked on the ground of diversity of citizenship or otherwise, “refuse to enforce or protect legal rights, the exercise of which may be prejudicial to the public interest; ” for it “is in the public interest that federal courts of equity should exercise their discretionary power with proper regard for the rightful independence of state government in carrying out their domestic state policy.”

Burford, supra, at 317-18, 63 S.Ct. at 1099 quoting United States v. Dern, 289 U.S. 352, 360, 53 S.Ct. 614, 617, 77 L.Ed. 1250 (1933) and Pennsylvania v. Williams, 294 U.S. 176, 185, 55 S.Ct. 380, 385, 79 L.Ed. 841 (1935). Applying this theory to the facts of Burford, the Supreme Court ruled that a federal court should have dismissed a request for injunctive relief against the enforcement of an order from the Texas Railroad Commission. Under Texas law, before a permit to drill for oil was granted, the Commission weighed the applicant’s interest against the state’s interest limiting the number of wells drilled in East Texas in order to conserve oil resources. The Commission’s decisions were subject to judicial review in the state courts including the Texas Supreme Court. In light of this “unified method for the formation of policy and determination of cases,” and given the danger federal court intervention posed to the success of state policies, the Supreme Court concluded that a “sound respect for the independence of state action” required a federal equity court “to stay its hand.” Id. 316 U.S. at 333-34, 63 S.Ct. at 1107.

The abstention doctrine announced in Burford has developed considerably since 1943. Generally, Burford abstention has been employed to avoid unnecessary federal court interference in state areas when competent judicial review is available in state courts. See Alabama Public Service Comm’n v. Southern R.R. Co., 341 U.S. 341, 349-50, 71 S.Ct. 762, 768, 95 L.Ed. 1002 (1951) (“The usual rule of comity must govern the exercise of equitable jurisdiction by the district court in this case.”). The doctrine has been invoked to defer to a state’s “overriding interest” in such areas as the regulation of natural resources, eminent domain and education. BT Investment Managers, Inc. v. Lewis, 559 F.2d 950, 955 (5th Cir.1977). As a result, Bur-ford abstention has come to be described as a doctrine requiring a federal court to abstain “in order to avoid needless conflicts with the administration by a state of its own affairs----” C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure, § 4244 (1978). See also Field, Abstention in Constitutional Cases: The Scope of the Pullman Abstention Doctrine, 122 U.Pa.L.Rev. 1071, 1159 (1974). The First Circuit has recognized the Bur-ford abstention doctrine’s applicability in certain cases “primarily because of the nature of the state regulatory interest in a particular subject matter and the potential for disruption engendered by federal intervention.” Construction Aggregates Corp. v. Rivera de Vicenty, 573 F.2d 86, 90 (1st Cir.1978).

In the instant case, the subject matter of Planned Parenthood’s action against the judicial defendants is the processing and determination of minors’ abortion petitions in the superior courts. Planned Parenthood has based its case on instances of harassment and delay by superior court judges and clerks who implement the Section 12S consent scheme. Thus, in effect, Planned Parenthood’s instant action is directed toward the maladministration of the Section 12S judicial consent process in the Superior Courts.

Clearly, Massachusetts has a significant interest in the integrity of its superior court system. See discussion supra p. 806 citing Middlesex County Ethics Comm’n, supra, 457 U.S. at 432, 102 S.Ct. at 2521; Judice, supra 430 U.S. at 335, 97 S.Ct. at 1217; Gordon v. Crouchley, supra, at 799; and Dostert v. Neely, supra, at 1153. However, the determination of issues in a federal court such as which superior court judges are “de facto unavailable” to hear minors’ abortion petitions, and how long a clerk should take to process a Section 12S petition would constitute an intrusion into the inner workings of the Massachusetts superior courts. Accordingly, under Burford, this Court may abstain from deciding such issues because they are matters involving the “internal operations” of a state court and are within the state’s power to regulate. Dawley v. City of Norfolk, 260 F.2d 647, 647 (4th Cir.1958), cert. denied, 359 U.S. 935, 79 S.Ct. 650, 3 L.Ed.2d 635 (1959).

Furthermore, were this Court to become involved through its equitable power with the administration of the Massachusetts superior courts, it would certainly be disruptive of the state’s policy of managing its own judiciary. The Massachusetts Legislature has established the Supreme Judicial Court as the superintendent of “all courts of inferior jurisdiction____” Mass. Gen.Laws ch. 211 § 3. Under this statutory mandate, the Supreme Judicial Court has the power to remedy errors and abuses in the superior courts. This supervisory power includes the ability to assure the “prompt hearing and disposition of matters pending” in the superior courts, as well as “the improvement of the administration of such courts, and the securing of their proper and efficient administration.” Id.

The presence of a “supervisory court” specifically authorized under state law to address the type of grievances which form the basis of Planned Parenthood’s federal action against the judicial defendants militates in favor of Burford abstention. See Allstate Insurance Co. v. Sabbagh, 603 F.2d 228, 233 (1st Cir.1979); Construction Aggregates v. Rivera de Vicenty, supra, at 92. See also Alabama Public Service Comm’n, supra, 341 U.S. at 349-49, 71 S.Ct. at 768 and Burford, supra, 319 U.S. at 333-34, 63 S.Ct. at 1107. The deficiencies which Planned Parenthood maintains are present in the processing of minors’ abortion petitions in the superior courts are a proper subject for the Supreme Judicial Courts and its expertise under the “superintendency” power. In fact, Justice Liacos has already acted pursuant to this power in 1981 when he issued voluntary guidelines for the disposition of Section 12S petitions in the Superior Courts. The Supreme Judicial Court, therefore, should have the opportunity to hear the evidence which Planned Parenthood has assembled on the Superior Court’s performance since 1981 when the voluntary guidelines were issued. After hearing Planned Parenthood’s argument, the Supreme Judicial Court may decide to take further action — possibly direct remedial measures against the judicial defendants — as the designated supervisory court under Mass.Gen.Laws ch. 211 § 3.

The opportunity for Planned Parenthood to present its arguments to the Supreme Judicial Court regarding the handling of minors’ abortion petitions in the superior courts exists through the Flanagan case now pending in Suffolk Superior Court. Accordingly, this Court should stay its hand and allow the Supreme Judicial Court to function in its supervisory capacity pursuant to the Legislature’s express policy. Cf. Hearn v. Hudson, 549 F.Supp. 949, 957-58 (W.D.Va.1982) (federal court’s refusal to enter an equitable order of ex-pungement is justified under Burford where the state has a statutory expungement procedure available to accomplish the same end).

In sum, therefore, this Court should exercise its equitable discretion and abstain from hearing Planned Parenthood’s action against the judicial defendants. This action fits squarely within the branch of the abstention doctrine which has developed under Burford v. Sun Oil Co. The subject matter of Planned Parenthood’s action — the operation of the Massachusetts superior courts — is an area of intense state interest. Massachusetts has designated its Supreme Judicial Court as a supervisory court capable of correcting errors and abuses of process in the lower courts. Federal court interference with the Commonwealth’s administration and supervision of its own superior courts would be unnecessarily disruptive. Moreover, Planned Parenthood is not harmed by this Court’s decision to abstain under Burford and thus dismiss this matter. They are currently involved in the Flanagan case a parallel action in the state court system. Planned Parenthood may raise all its federal claims in Flanagan and bring their challenge to the operation of the superior courts to the attention of the Supreme Judicial Court. In that forum, under Massachusetts law, remedial action may be taken against the judicial defendants.

III. Conclusion

In summary, Planned Parenthood has brought the judicial defendants, judges and clerks of the Massachusetts Superior Courts, before this Federal Court to dispute the manner in which these judicial officers administer Section 12S. Planned Parenthood asks this Court to examine the administration of the Section 12S consent scheme in the superior Court and issue declaratory and injunctive relief. By asking a federal court to intervene in the operation of a state institution, however, Planned Parenthood forces this Court to consider the impact such intervention might have on the proper maintenance of federal-state relations. Applying relevant principles of federalism and comity to this action against members of the state judiciary, it is apparent that federal intrusion into the operation and administration of the Massachusetts Superior Courts is inappropriate. Massachusetts has a significant interest in the management of its courts and the Supreme Judicial Court has the expertise, as well as the legislative mandate to oversee the Superior Courts and take necessary remedial action. Accordingly, given the nature of this action against the judicial defendants, principles of federalism and comity dictate that this Court should abstain and allow the Massachusetts Supreme Judicial Court the opportunity to address Planned Parenthood’s concerns through the Flanagan case now pending in the state court.

This is not to say that I am unmindful of the sincere and painstaking efforts by the plaintiffs to correct or improve what it perceives to be an unconstitutional application of the statute. The submissions of counsel, including the affidavit and transcript show all too clearly the potential for individual and subjective intrusions into the administration of this most controversial subject. No one can be unaware of the emotion generated by this issue. Viewed in this light, the plaintiffs’ approach is too facile and would, in my judgment, create an uncompromising tension between these judicial systems.

If this Court did not abstain, the alternative would be a dangerous encroachment upon the delicate relationship between our federal and state systems. Federalism demands that this Court not become involved with the operation of the state’s superior courts. It is not this Court’s proper role to supervise, or to be cast “in the role of receiver for a state judicial branch.” Ad Hoc Committee on Judicial Administration v. Commonwealth of Massachusetts, 488 F.2d 1241, 1246 (1st Cir.1973) citing Younger v. Harris, 401 U.S. 37, 44-45, 91 S.Ct. 746, 750-751, 27 L.Ed.2d 669 (1971). Planned Parenthood’s action against the judicial defendants, however, would steer this Court perilously close to “a form of monitoring of the operation of state court functions that is antipathetic to established principles of comity.” O’Shea v. Littleton, 414 U.S. 488, 501, 94 S.Ct. 669, 679, 38 L.Ed.2d 674 (1974). Accordingly, the judicial defendants' motion to dismiss is granted.

SO ORDERED.

      . The First Circuit affirmed this Court’s decision to uphold the parental and judicial consent provisions in Section 12S. However, the appeals court did invalidate parts of Section 12S in 1981. Those provisions were a 24 hour waiting period and a requirement that a consent form include a description of the fetus’ development. Circuit Judge Campbell authored a dissenting opinion on the court's decision to strike down the fetal description requirement. 641 F.2d 1006, 1028 (Campbell, J. dissenting in part).

      . In August, 1980, the Administrative Justice of the Superior Court Department of the Massachusetts Trial Court had also issued guidelines for the implementation of the Section 12S judicial consent scheme in the superior courts. Standing Order 12-80 (effective September 3, 1980) established uniform procedures for the processing of minors’ abortion petitions. The Standing Order was reprinted in its entirety in the First Circuit’s opinion, 641 F.2d at 1025-26.

      . At the outset, it must be emphasized that the motion to dismiss before this Court pertains to the judicial defendants only. Therefore, while the amended complaint names both the original defendants and the judicial defendants, this discussion is confined to Planned Parenthood’s action against the judicial defendants. See Judicial Defendant’s Memorandum in Support of Motion to Dismiss at 4, n. 5.

      . The precise form of relief sought by Planned Parenthood is by no means clear. Although Planned Parenthood argues for purposes of this motion to dismiss that they will not seek injunctive relief against the judicial defendants, this position is difficult to reconcile with the "Plaintiffs’ Motion to Amend Complaint.” In that document, Planned Parenthood stated, "Plaintiffs’ claims of unconstitutionality rely in part on the actions of those judges and clerks, the relief accorded herein may include specific relief against judges as a class and clerks as a class.” Plaintiffs’ Motion to Amend Complaint at 3.

      . The judicial defendants have offered several alternative arguments: failure to state a valid cause of action; absence of a constitutionally mandated case or controversy; failure to state a claim upon which relief may be granted; and several types of abstention. Because abstention will lead to dismissal of this case, it is not necessary to pass on the validity of those other alternative arguments.

      . As recently as January 18, 1985, Planned Parenthood filed a supplementary submission concerning the applicability of the Colorado River doctrine to this case.

      . Field summarizes several views of Burford abstention in her work:
      Professor Wright recognizes “Burford-type abstention” as a separate category of abstention but never states precisely what will invoke it, noting only that its purpose is "to avoid interference with state activities.” Similarly, the American Law Institute describes the Burford doctrine as a doctrine that the federal court should relinquish jurisdiction where necessary to avoid needless conflict with the administration by a state of its own affairs.” Likewise Mr. Libenthal seems to adopt an "all the circumstances” approach. He suggests that Burford and Alabama PSC "are merely examples of the traditional equity cases concerned primarily with the propriety of equitable relief in a given situation in which the Court places greater emphasis on the factor of federal-state harmony” — that the doctrine of those cases “is no more than the doctrine which the Court has used before: No equity court will unnecessarily give extraordinary equitable relief, even though that court has jurisdiction to do so.”
      Field, Abstention in Constitutional Cases: The Scope of the Pullman Abstention Doctrine, 122 U.Pa.L.Rev. 1071, 1159 (1974) (citations omitted).

      . The pendency of the Flanagan case in state court eliminates the possibility that Planned Parenthood will be barred from raising their arguments after this action against the judicial defendants is dismissed from federal court under Burford. Thus, the difficult situation which faced the First Circuit in Allstate Insurance Co. v. Sabbagh, 603 F.2d 228 (1st Cir.1979), is avoided. In Allstate, the First Circuit admitted its “concern" that Burford dismissal might "defeat substantive rights” because a state statutory deadline in that case might have affected the plaintiffs ability to bring the matter in state court. Id. at 234. Nevertheless, the appeals court stated, “[t]he harsh result this opinion may produce is a by product of the theoretical basis for Burford abstention — abstention is proper because it would be improper for the federal court to become involved in the problem. ‘[T]his type of abstention calls for the surrender of federal jurisdiction not its mere postponement.’ ” Id. quoting Construction Aggregates Corp. v. Rivera de Vicenty, 553 F.2d at 89. See also Gordon v. Crouchley, 554 F.Supp. at 799-800.

      . In Planned Parenthood’s argument against the use of Burford abstention in this case, they maintain that the doctrine "has never been invoked in any case remotely like this one.” Plaintiffs' Memorandum in Opposition to Motion to Dismiss at 16. However, one need only look within this Circuit to see that Burford abstention has been applied in cases brought under 42 U.S.C. § 1983 involving constitutional issues. See e.g. Gordon v. Crouchley, 554 F.Supp. 796 (D.R.I.1982) (Section 1983 action against a Rhode Island Family Court judge dismissed under Burford).
      In Stoute v. Berman, 555 F.Supp. 507 (D.Mass. 1982), a prisoner’s rights case brought under 42 U.S.C. § 1983, the District Court abstained from reaching the plaintiffs constitutional arguments concerning the conditions in the Massachusetts Correction Department’s protective custody units. Id. at 511. Citing Burford, the District Court noted that the conditions in those units were the subject of ongoing litigation and a consent decree in the state system. Id. citing Blaney v. Commissioner of Corrections, (Supreme Judicial Court for Suffolk County) No. J-74-88.

      . Jn Paragraph 11 of his affidavit submitted in opposition to the judicial defendants’ motion to dismiss, John Henn, Planned Parenthood’s colunsel, articulated a reason why Planned Parenthood chooses to challenge the administration of Section 12S by the Massachusetts superior courts in this Federal Court:
      11. Not only do plaintiffs choose to try in this Court the facts underlying both their federal constitution and Massachusetts constitution challenges, but plaintiffs believe that it might well be inappropriate to try such facts in a state court. Part of plaintiffs’ evidence, as discussed below, will address the "de facto ” unavailability of certain Superior Court judges for § 12S proceedings due to the way those judges have conducted proceedings in the past. It would be better not to be forced to present such evidence concerning certain judges to fellow judges of the same court.
      Henn affidavit, supra, at 4.
      This argument must be rejected as a justification for keeping Planned Parenthood’s action against the judicial defendants in federal court. Such reasoning overlooks the Supreme Court’s admonition that a proper regard for the capability of state judicial systems “precludes any presumption that state courts will not safeguard federal constitutional rights.” Middlesex County Ethics Comm’n v. Garden State Bar Ass’n, 457 U.S. 423, 431, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1983) (emphasis in original).


author: ROBERT D. POTTER, Chief Judge.

text:
    TRYCO TRUCKING COMPANY, INC. and Ralph O. Soots, Plaintiffs, v. BELK STORE SERVICES, INC., Charlotte Freight Association, Inc., CFA Transportation, Inc., Tempus Trucking Company, Robert D. Hoagland and Charles R. Young, Defendants.
    No. C-C-84-531-P.
    United States District Court, W.D. North Carolina.
    Feb. 11, 1985.

      Eric Meierhoefer, Washington, D.C., Harold Bender, Charlotte, N.C., for plaintiffs.
    Donald Carroll, Helms, Mulliss & Johnston, Charlotte, N.C., for Belk Store Services.
    Philip D. Lambeth, Harkey, Coira, Fletcher & Lambeth, Charlotte, N.C., for Charlotte Freight Assoc., Inc., CFA Transp.
    Robert D. Hoagland by E. Fitzgerald Parnell, III, Weinstein, Sturges, Odom, Groves, Bigger, Jonas & Campbell, Charles R. Young, Parker, Poe, Thompson, Bernstein, Gage & Preston by William P. Farthing, Jr. and H. Parks Helms, Lane and Helms, Charlotte, N.C., for defendant.
   ROBERT D. POTTER, Chief Judge.

THIS MATTER was heard before the undersigned on January 7, 1985. The Plaintiff was represented by Eric Meierhoefer and Harold Bender. Belk Stores Services, Inc. (“Belk”) was represented by Donald Carroll. Charlotte Freight Association, Inc. (“CFA”) and CFA Transportation, Inc. (“CFA Transport”) were represented by Philip D. Lambeth. Charles R. Young (“Young”) was represented by William P. Farthing, Jr. Robert D. Hoagland (“Hoagland”) was represented by E. Fitzgerald Parnell, III. Tempus Trucking Company did not appear. The hearing was held on joint motion of CFA and CFA Transport to dismiss or alternatively for abstention, on Belk’s motion to dismiss, on Young’s motion to dismiss and on Hoagland’s motion to dismiss.

I. PROCEDURAL POSTURE

This litigation is based upon the alleged intentional violation of laws governing unfair and deceptive trade practices in North Carolina and violation of 18 U.S.C. § 1961 et seq., the Racketeer Influenced and Corrupt Organizations Act (“RICO”). Five of the six Defendants have filed motions to dismiss for failure to state a claim upon which relief can be granted. Although there are four separate motions to dismiss before the Court there are several common theories asserted in each motion.

The Defendants contend that in order to state a valid cause of action under RICO there must be an alleged nexus between “organized crime” and the Defendant, there must be a conviction, as opposed to the commission, of one of the predicate acts, or the allegations concerning the predicate offenses must be stated with sufficient particularity to establish probable cause to believe the Defendants committed the predicate acts. If the Defendants’ theories are legally sound then the Complaint should be dismissed because the Complaint does not allege, and the Plaintiff does not contend they could allege, an organized crime nexus or a conviction. The Defendants, in addition, contend the underlying predicate acts of fraud and extortion are insufficiently pled. The remaining objection to the RICO count relates to the insufficiency of the Complaint to establish the enterprise and the individual Defendants’ participation in the enterprise. The Court will discuss each contention seriatim.

II. DISPOSITION OF THE COMMON CONTENTIONS

A. Requisite Nexus Between “Organized Crime” and the Defendants

Relying on various district court opinions, the Defendants argue that a litigant is able to state a claim under RICO only if it is alleged that there is a link between the defendant and organized crime. See, e.g., Mon-Shore Management, Inc. v. Family Media, Inc., 584 F.Supp. 186 (S.D.N.Y.1984); Divco Const. & Realty Corp., Inc. v. Merrill Lynch Pierce Fenner & Smith, Inc., 575 F.Supp. 712 (S.D.Fla.1983); Hokama v. E.F. Hutton and Company, Inc., 566 F.Supp. 636 (C.D.Cal.1983). The Second, Seventh, Eighth, and to a certain extent, the Fourth Circuit Court of Appeals, however, have repudiated the notion that there exists an organized crime barrier in RICO. Haroco, Inc. v. American National Bank & Trust Co., 747 F.2d 384, 391 (7th Cir.1984) (“[T]he courts have thoroughly repudiated the contention that the civil provisions of RICO apply only to organized crime”); United States v. Grande, 620 F.2d 1026, 1030 (4th Cir.) cert. denied, 449 U.S. 830, 101 S.Ct. 98, 66 L.Ed.2d 35 (1980). (“A premise of the argument appears to be the rejected notion that (RICO) ... applies only to organized crime in the classic 'mobster' sense”); Ben nett v. Berg, 685 F.2d 1053, 1063 (8th Cir.1982), cert. denied, Prudential Insurance Company v. Bennett, — U.S. -, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983); Schacht v. Brown, 711 F.2d 1343, 1355 (7th Cir.) cert. denied, Arthur Andersen & Co. v. Schacht, — U.S. -, 104 S.Ct. 508, 78 L.Ed.2d 698 (1983); Moss v. Morgan Stanley, Inc., 719 F.2d 5, 21 (2d Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 1280, 79 L.Ed.2d 684 (1984). This Court, in addition, agrees, that as the language of the statute does not limit its application to organized crime and as Congress “rejected any attempt to employ the concept of ‘organized crime’ in any colloquial sense in the language of RICO” it would constitute impermissible judicial legislation to impose an organized crime nexus in RICO. Haroco, supra, at 391. Accordingly, the Court is not persuaded by the Defendants’ argument that the absence of a link to organized crime requires dismissal.

B. Conviction of Criminal Activity for the Underlying Predicate Acts

The Second Circuit Court of Appeals in Sedima v. IMREX Co., Inc., 741 F.2d 482 (2d Cir.1984) held that in RICO there must be a criminal conviction on the underlying predicate offenses. The Defendants urge the Court to follow Sedima and require the conviction, as opposed to the commission, of the predicate acts. The Court is not so persuaded.

The unique conviction theory established in Sedima appears to have been rejected by all other circuits considering the matter. United States v. Cappetto, 502 F.2d 1351 (7th Cir.1974), cert. denied, 420 U.S. 925, 95 S.Ct. 1121, 43 L.Ed.2d 395 (1975); USA-CO Coal Co. v. Carbomin Energy, Inc., 698 F.2d 94, 95 n. 1 (6th Cir.1982); Bunker Ramo Corp. v. United Business Forms, Inc., 713 F.2d 1272, 1287 (7th Cir.1983); Moss v. Morgan Stanley, Inc., 719 F.2d 5, 19 n. 15 (2d Cir.1983) (dicta), cert. denied sub com. Moss v. Newman, — U.S. -, 104 S.Ct. 1280, 79 L.Ed.2d 684 (1984). Further, although the Fourth Circuit Court of Appeals has not directly considered the issue, it did reinstate a civil RICO claim with no prior conviction after the district court dismissed the action for failure to state a claim upon which relief can be granted. See, Battlefield Builders, Inc. v. Swango, 743 F.2d 1060 (4th Cir.1984). After carefully considering the matter the Court is more inclined to agree with the dissent in Sedima:

[ljooking at the reasoning that creates a ‘prior predicate act criminal conviction’ requirement one is struck that it — in Alice’s words — gets ‘curiouser and curiouser’. No support for this proposition is found in the statute or its legislative history.

741 F.2d at 504. Therefore, in light of the actual language in the statute, the well-reasoned rejection of the conviction theory by the other circuits considering the issue and the reinstatement of the civil RICO claim in Battlefield, the Court disagrees with the Defendants’ suggestion that we should follow Sedima and implant a conviction requirement in RICO.

C. Pleading Predicate Offense With Sufficient Particularity to Establish Probable Cause

In Bache Halsey Stuart & Shields, Inc. v. Tracy Collins Bank & Trust Co., 558 F.Supp. 1042 (D.Utah 1983) the Court held the predicate offenses must be alleged either as prior criminal convictions or with sufficient particularity to establish that there is probable cause to believe the defendant committed the crimes. See also, Taylor v. Bear Stearns & Co., 572 F.Supp. 667 (N.D.Ga.1983). Although this issue has not been addressed in this circuit it has been seriously criticized by other courts considering the problem. The probable cause requirement was explicitly rejected in Haroco, supra, the Court discerning a significant difference between the necessary proof at the trial and the requisite specificity at the pleading stage. This Court agrees with the rational in Haroco :

To establish its case at trial, a civil plaintiff must surely prove the acts of racketeering, but the district courts in Bache Halsey and Taylor appear to have moved that requirement up to the pleading stage. For several reasons, we do not agree that such specificity is required at the pleadings stage.
First, a determination of probable cause in the criminal context ordinarily involves some evaluation of the reliability of specific evidence. Even the most specific allegations do not establish probable cause unless they are reliable. We are, to say the least, perplexed as to how a court might undertake such evaluations of reliability in deciding a motion to dismiss under Rule 12____
With respect to Bache Halsey’s discussion of grand juries, it should be recalled that a grand jury has significant investigative powers and resources, including a broad subpoena power. Before it decides whether to indict a person, it has extensive opportunities, to discover and evaluate relevant facts. It should be obvious that a civil plaintiff has no similar discovery rights until it files its complaint. Yet, the approach of the district court in Bache Halsey appears to require a plaintiff to establish a case before any discovery is permitted. The Bache Halsey court argued that such specificity was needed in order to evaluate the merits of a claim and to distinguish between well-founded and frivolous claims. While the court’s motives are admirable, its approach seems to us to be impractical. We see no grounds for demanding that a civil RICO plaintiff essentially plead evidence and prove the case in the complaint, (citations omitted).

Haroco, supra, at 404-405. In light of the above this Court is of the opinion that, contrary to the Defendants’ assertion, the Complaint need not satisfy a probable cause specificity standard.

D. Failure to Allege the Fraudulent Acts With the Particularity Required by Rule 9(b) of the Federal Rules of Civil Procedure

The requirement in Fed.R.Civ.P. 9(b) of specificity in pleading fraud applies to fraud allegations in civil RICO claims. The Complaint in this action, which Complaint identifies the transactions, the fraudulent representations, the material concealments, the parties’ identity, and their intent alleges with the requisite specificity several fraudulent schemes. See, e.g., Complaint, ¶ 70(a)-(r).

If the Defendants are also contending that the allegations do not constitute a valid claim of fraud, the Court disagrees. The term scheme to defraud includes within its ambit various schemes involving deception if they are contrary to public policy and fail to measure up to accepted moral standards. Schemes of non-disclosure and concealment of material information came within the federal mail fraud statute. Fraud is also found when there has been a fraudulent statement of facts or a deliberate concealment thereof to a public agency in order to receive a benefit by action of the agency. United States v. Mandel, 591 F.2d 1347, 1364 (4th Cir.1979). The Complaint in this respect, therefore, withstands the Defendants’ motion to dismiss.

E. Failure of the Extortion Allegation to State A Valid Cause of Action

The Defendants contend that the extortion allegation cannot be considered as one of the predicate acts because the claim as alleged does not constitute extortion. In support of their position, the Defendants focus on singular paragraphs or phrases in the Complaint as opposed to assessing the Complaint in its entirety.

In order to satisfy the extortion claim there must be a threat or a communication of a threat. N.C.G.S. § 14-118.4. The Defendants’ position is that there is no threat since the Complaint uses the term “implicit threat” or “requested.” The Defendants’ argument ignores the fact that the Complaint also alleges that during the time the “requests” for stock were being made the Defendants’ conduct toward the Plaintiff radically changed, in that there was wrongful withholding of payment of freight charges, filing of unwarranted loss and damage claims, and other wrongful actions designed to injure the Plaintiff’s business. See, Complaint, ¶ 23,24. As a threat is as effectively communicated through conduct as it is communicated by language the Court is of the opinion that there is stated a valid claim of extortion.

F. Identification of the Enterprise and the Defendants’ Participation in the Conduct of the Enterprise

The RICO “enterprise” identified in the Complaint is Defendant CFA. The Plaintiffs memorandum, however, suggests that the enterprise is an association in fact consisting of all Defendants associated for the common purpose of attempting to force the Plaintiff out of business. If the enterprise is Defendant CFA, as alleged in the Complaint, then the Court should probably dismiss the claim against Defendant CFA because an enterprise may not simultaneously be a RICO participant. Umstead v. Durham Hosiery Mill, 592 F.Supp. 1269 (M.D.N.C.1984); United States v. Computer Sciences Corp., 689 F.2d 1181 (4th Cir.1982), cert. denied, 459 U.S. 1105, 103 S.Ct. 729, 74 L.Ed.2d 953 (1983); United States v. Bledsoe, 674 F.2d 647 (8th Cir.), cert. denied, 459 U.S. 1040, 103 S.Ct. 456, 74 L.Ed.2d 608 (1982). If the enterprise instead consists of an association of fact then until this enigmatic association is identified and pled the Court cannot determine if a defendant should be dismissed because he has not participated in this enterprise or conversely that he should be dismissed because he has no separate cognizable identity apart from the enterprise. Id. Accordingly, since the Plaintiff has suggested the existence of an enterprise not yet pled, the Court is of the opinion that the Plaintiff should be granted leave to amend the Complaint. If the Complaint is amended the Plaintiff should consider avoiding the generic use of “defendants” and instead should be more specific with respect to the allegations concerning the Defendants’ respective association with the enterprise. After the time in which to amend the Complaint has lapsed, the Court will determine whether the Complaint should be dismissed as to the Defendants individually.

IT IS, THEREFORE, ORDERED that:

(1) The Plaintiff is granted leave to amend the Complaint;
(2) The amended Complaint must be filed within fifteen (15) days from the filing of this Order; and
(3) The Court will defer ruling on the remaining issues in the Defendants’ motions to dismiss for fifteen (15) days.