author: GESELL, District Judge.

text:
    WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Plaintiff, v. GATOIL (U.S.A.), INC., and W.A. Benson (d/b/a Benson and Associates), Defendants.
    Civ. A. No. 84-3240.
    United States District Court, District of Columbia.
    May 8, 1985.
    Robert L. Polk, William B. Bircher, Thomas B. Dorrier, W.M.A.T.A., Washington, D.C., for plaintiff.
    Thomas York, Donald N. Rothman, David W. Parsons, Baltimore, Md., and Jerry R. Goldstein, Bethesda, Md., for defendant Gatoil.
    Rob Ross Hendrickson, Frank M. Benson, Jr., Baltimore, Md., and Jacob Dweck, Beverly J. Rudy, Washington, D.C., for Benson and Associates.
   MEMORANDUM

GESELL, District Judge.

This contract dispute is before the Court on cross-motions for summary judgment. Affidavits and documents establish the following undisputed material facts.

Washington Metropolitan Area Transit Authority (WMATA) and Benson and Associates (B & A) executed a contract in June 1983 under which B & A agreed to supply over three million gallons of diesel fuel at a firm fixed price. This contract was awarded to B & A as low bidder for WMATA’s annual diesel fuel requirements for its fleet of buses. It contemplated performance between July 1, 1983, and June 30, 1984.

B & A was a 50-50 joint venture between W. Arthur Benson and Gatoil (U.S.A.) Inc. The former was to provide the operational functions and the latter the financing. Ga-toil (U.S.A.) was a wholly owned subsidiary of Gatoil International, Inc., of Geneva, Switzerland. After bids were opened in May showing that B & A was the low bidder, Benson represented to WMATA that B & A would provide a performance bond to guarantee its performance. In addition, Gatoil (U.S.A.) represented to WMA-TA that Gatoil was “a multi-national marketing, refining and trading company that enjoys a world-wide reputation of par excellence.”

The full amount of diesel fuel involved was broken into separate contracts covering each of WMATA’s governmental jurisdictions. These were forwarded by WMA-TA on June 15, 1983 with its signature for signature by B & A, along with a statement that “In the event the performance bond is not received prior to June 30, 1983, this contract is null and void.” B & A executed the contract on June 24, 1983. The contract itself stated:

Effeetivity of this contract is contingent upon the submittal of a performance bond in the amount of 15% of the entire bid as submitted in response to Solicitation No. 11800-RS. This bond must be received prior to June 30, 1983.

WMATA was assured the performance bond would be forthcoming routinely, and other steps were taken looking toward full implementation of the contract, which was to be WMATA’s only source of diesel fuel to replace its prior contract expiring on June 30.

On June 24, 1983, WMATA stated that “In the interest of satisfactorily proceeding with the contract, the date of the bond submitted is extended to July 15, 1983,” and said it would not accept full delivery until it received the bond. But on June 28 by hand-delivered letter, WMATA advised B & A that the June 24 letter was mistaken in deferring delivery until after receipt of the bond. The June 28 letter authorized B & A to begin delivery under the contract on July 1, declaring all other provisions of the contract in effect pending receipt of the bond on July 15, 1983. On July 1, 1983, WMATA revised its request, specifying first delivery on July 11, 1983, but again stating “we expect to receive your bond on or before July 15, 1983 absent advice from you to the contrary.”

On July 5, B & A gave notice to WMATA by Western Union Mailgram that it would not accept what it characterized as WMA-TA’s “unilateral attempt to change the contract.”

That was the apparent extent of the joint venture’s written contacts with WMATA concerning the performance bond and the contract. Several other developments bear on this course of dealings.

By letter dated June 21, 1983, Gatoil (U.S.A.) advised B & A that in view of B & A’s failure to confirm by June 15, Gatoil (U.S.A.)’s suppliers could no longer supply B & A with the “product,” i.e., diesel fuel. On June 29, B & A first advised WMATA that it was having trouble obtaining fuel and would not be able to begin deliveries on July 1. From June 29 to July 6, a WMATA procurement official was in regular contact with B & A and was told by B & A that it had contacted various suppliers but could not obtain a source of fuel for the contract. WMATA then concluded that B & A could not supply. WMATA covered its needs by extending its old contract through July 9, obtaining a second supply for the rest of July after B & A appeared unable to deliver, and then rebidding the contract for the remaining 11 months.

No performance bond was ever supplied. The parties agree that supplying the bond was a condition precedent to the contract. Defendants argue that the contract thus never came into existence and there was no breach. WMATA contends, and the defendants agree, that because performance of the condition precedent was in the power of the defendants, they had a duty to exercise good faith in trying to obtain the bond. The courts generally characterize this duty of good faith as an implied promise of the contract. See R.A. Weaver & Associates, Inc. v. Haas & Haynie Corp., 663 F.2d 168, 176-77 (D.C.Cir.1980); Bushmiller v. Schiller, 35 Md.App. 1, 368 A.2d 1044, 1048 (1977).

The key issue thus becomes whether the defendants’ acts constituted good faith. Each side contends it is entitled to summary judgment on the facts before the Court.

The performance bond was never required by WMATA’s bid solicitation but was offered by the defendants in lieu of a more cumbersome method of demonstrating their ability to perform. Gatoil (U.S.A.) was the party responsible for obtaining the bond. It told WMATA it would get the bond from Marsh and McLennan, a Houston bonding firm. A WMATA official contacted Marsh and McLennan and B & A several times in May and June and was told the bond would be issued routinely.

However, on June 24, the same day B & A executed. the ■ contract arid three days after Gatoil (U.S.A.) had told its partner it could not provide the fuel, Marsh and McLennan advised Gatoil it could not obtain a bond for Gatoil without a bank letter of credit. Marsh and McLennan also advised that Gatoil’s parent had sufficient assets that if it would indemnify its subsidiary, a bond could be obtained without any letter of credit. The bond would have cost less than $5,000.

Gatoil (U.S.A.) did not follow up this letter from Marsh & McLennan in any way by asking for a modification on the letter of credit or by offering any sort of indemnification from its parent. In an answer to interrogatories, Gatoil (U.S.A.) indicated it did not follow up because “[a]t that time ... Gatoil’s working capital was fully committed to other projects and an additional amount of working capital would have had to be infused into Gatoil in order for Gatoil to have procured such a letter of credit. Accordingly, at that time, Gatoil [ (U.S.A.) ] was financially unable to provide a letter of credit.” '

Gatoil (U.S.A.) never communicated these problems to WMATA and never asked WMATA to waive or modify the bond requirement.

The requirement of good faith in performing a condition precedent is a requirement to make reasonable efforts. E.g., Bushmiller v. Schiller, 35 Md.App. 1, 368 A.2d 1044, 1048 (1977). No such good faith effort was made here. It is clear that Gatoil went through the motions of applying for a bond but that when the first obstacle developed, it used that as an excuse to back out of the contract which the joint venture was having difficulty performing.

Several other facts are relevant in reaching this finding. In bidding for the contract Gatoil (U.S.A.) and Benson both held out the world-wide resources of the Gatoil group, but the limited funds of Gatoil (U.S.A.) later became a shield for nonperformance. As noted above, Gatoil International owns 100 percent of Gatoil (U.S.A.). Kahil J. Ghattas, president of Gatoil (U.S. A.), is also chairman of Gatoil International. Gatoil (U.S.A.) has offered no reason for why the parent could not have indemnified the subsidiary or provided the letter of credit, or why the subsidiary could not have rearranged its capital to provide collateral for the letter of credit. In addition, from WMATA’s communications with B & A, it is clear that WMATA, the beneficiary of the condition precedent and thus the party with a right to waive or excuse its non-performance, was eager to go ahead with the contract and willing temporarily to waive performance of the condition. Defendants seized on this as an attempt to modify the contract and rejected it out of hand, thus further showing their lack of good faith. The Court concludes on all the evidence that defendants breached their duty to perform the condition precedent in good faith and thus breached the contract.

Defendants also argue in the alternative that WMATA failed to provide written purchase orders as required by the contract and failed to provide notice of default and an opportunity to cure. These arguments wholly lack merit. Defendants failed to obtain the bond, failed to enter any discussions with WMATA to work out the bond problem, and expressly indicated their inability to deliver fuel. WMATA was not required after that to perform certain hollow rituals to preserve its rights under the contract. The law does not require useless acts.

Accordingly, defendants’ motions for summary judgment are denied, and plaintiff’s motion for summary judgment is granted. WMATA has shown that its damages from the breach, in higher prices it had to pay for the same amount of fuel, totaled $746,018.68. An appropriate Order is filed herewith entering judgment in that amount for plaintiff.

      . Neither defendant obeyed Local Rule l-9(i), which requires a party seeking summary judgment to file a statement of material facts as to which the party contends there is no genuine issue, with record references, and which also requires a party opposing summary judgment to file a statement of genuine factual issues. Neither defendant disputes the underlying facts as stated in plaintiff’s motion, contesting only the inferences to be drawn from those facts. Plaintiff likewise raises no issue of disputed fact. Accordingly, this is a proper case for summary judgment.

      . Gatoil later indicated in an answer to an interrogatory that it “made no effort to hedge, cover or perfect the right to obtain fuel at certain prices during the anticipated period of contract performance in connection with or as a result of Benson and Associates’ bid....” Market prices apparently went up between the time of B & A’s successful bid and July 1.

      . This is therefore not a case where good faith is irrelevant because the party performing the condition precedent has an absolute right to cancel the contract. See Shear v. National Rifle Ass’n of America, 606 F.2d 1251, 1256 (D.C.Cir.1979); Dixon v. Bernstein, 182 F.2d 104 (D.C.Cir.1950).

      . Defendants were expressly invited by the Court to file any cross-claims but declined to do so.

      . Affidavit of Gary K. Cooper, Marsh and McLennan, at 2.

      . No cases in the District of Columbia define the good faith requirement. While the contract was executed in the District of Columbia and D.C. law controls, Maryland has a substantial interest in the case by virtue of the parties’ contemplation that substantial parts of the contract would be performed in Maryland; where the operating arm of the joint venture was located.


source: Caselaw Access Project

author: NANGLE, Chief Judge.

license: Public Domain

text:
    Terri Ann MIENER, et al., Plaintiffs, v. SPECIAL SCHOOL DISTRICT OF ST. LOUIS COUNTY, MISSOURI, et al., Defendants. Terri Ann MIENER, etc., Plaintiff, v. SPECIAL SCHOOL DISTRICT OF ST. LOUIS COUNTY, MISSOURI, Defendant and Third-Party Plaintiff, v. MISSOURI DEPARTMENT OF ELEMENTARY AND SECONDARY EDUCATION, et al., Third-Party Defendants.
    Nos. 79-1050C(1), 82-1836C(2).
    United States District Court, E.D. Missouri, E.D.
    May 8, 1985.

      Albert J. Haller, Steven L. Leonard, Hal-ler, Leonard & Tripp, P.C., Clayton, Mo., for plaintiffs.
    Margaret Keate, Asst. Atty. Gen., Jefferson City, Mo., for defendants State Dept, of Elem. and Sec. Educ. and State Dept, of Mental Health.
    Ruth A. Przybeck, Asst. Atty. Gen., St. Louis, Mo., for defendants State Dept, of Elem. and Sec. Educ. and State Dept, of Mental Health.
    Timothy K. Kellett, Eric M. Schmitz, St. Louis, Mo., for defendant/third-party plaintiff Special School Dist. of St. Louis County-
   MEMORANDUM

NANGLE, Chief Judge.

These cases are now before this Court for a ruling on two (2) motions. First, in No. 79-1050C(l), defendant Special School District of St. Louis County, Missouri (hereinafter “SSD”) moves to dismiss plaintiffs’ second amended complaint. Second, in Nos. 79-1050C(l) and 82-1836C(2), plaintiffs move to consolidate both cases before this Court. Because SSD’s motion to dismiss is granted, the second amended complaint in No. 79-1050C(l) is dismissed and the motion to consolidate is denied.

Plaintiffs’ claims and the underlying facts of this case have been discussed in several prior opinions in this case. See Miener v. State of Missouri, 673 F.2d 969 (8th Cir.1982); Miener v. Special School District of St. Louis County, 580 F.Supp. 562 (E.D.Mo.1984); Miener v. State of Missouri, 498 F.Supp. 944 (E.D.Mo.1980). In Special School District of St. Louis, County, this Court held that plaintiffs could not proceed with their claims under 42 U.S.C. § 1983. However, this Court also granted plaintiffs leave to file a second amended complaint asserting damages under the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., (hereinafter “Rehabilitation Act”). Several months later, plaintiffs filed their second amended complaint. The legal sufficiency of said complaint is at issue herein.

Plaintiffs’ second amended complaint is a claim for declaratory, injunctive and damages relief for “discriminatory deprivation of plaintiff’s right to education” under the Rehabilitation Act. Plaintiffs allege that plaintiff Terri Ann Miener was and is in need of special education services and that defendant SSD has, at all applicable times, provided a free, adequate and appropriate education for many of its students. Plaintiffs’ second amended complaint further alleges that on February 4, 1977, SSD received a report that Terri Ann Miener was learning disabled, behaviorally disordered, visionally impaired and orthopedically handicapped. Plaintiffs allege that beginning on or about February 4, 1977 and thereafter, SSD “has failed and refused to provide a free, appropriate and non-discriminatory public school education to Terri Ann Miener, has excluded her from participation in its programs and has denied her access to its programs solely by reason of her handicap, all in violation of the Rehabilitation Act.” As a result of SSD’s alleged violation of the Rehabilitation Act, plaintiffs allege that they were required to expend funds for Terri Ann Miener’s education and that SSD was obligated to pay said amounts. From June 23, 1977, through approximately April 15,1980, plaintiff Terri Ann Miener was placed in the Youth Center Program of St. Louis State School and Hospital, an agency of the Missouri Department of Mental Health. Subsequent to April 15, 1980, plaintiff Terri Ann Miener was placed at the Brown Schools Ranch Treatment Center located in Austin, Texas, and she currently remains there. The relief sought by plaintiffs includes, inter alia, a declaration that defendants’ acts violated the Rehabilitation Act, prospective compensatory services to overcome the effects of any past discriminatory denial of special educational services, $1,000,000.00 for the physical injuries received by Terri Ann Miener during the period from February 4, 1977 to April 15, 1980, $250,000.00 in damages for defendants’ discriminatory denial of Terri Ann Miener’s right to a full and adequate education, and $400,000.00 for reimbursement of sums expended by plaintiffs for the education of Terri Ann Miener.

In passing on a motion to dismiss, a court is required to view the facts alleged in the complaint in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). A motion to dismiss will not be granted merely because the complaint does not state every element necessary for recovery with precision. 5 Wright & Miller, Federal Practice and Procedure: Civil § 1216 at 120 (1969). A complaint is sufficient if it “contain[s] allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial.” Id. at 122-23. A complaint should not be dismissed unless it “appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley, 355 U.S. at 45-46, 78 S.Ct. at 101-102.

SSD argues that plaintiffs’ second amended complaint must be dismissed, because the rights asserted by plaintiffs are rights protected by the Education of all Handicapped Children Act, 20 U.S.C. § 1400 et seq. (hereinafter “EHA”), and that the Rehabilitation Act is not available to enforce rights protected by the EHA. SSD’s motion relies primarily on Smith v. Robinson, — U.S. -, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984).

This Court recently undertook an examination of the Smith case, as well as the companion case of Irving Independent School District v. Tatro, — U.S. -, 104 S.Ct. 3371, 82 L.Ed.2d 664 (1984), in Yaris v. Special School District of St. Louis County, 599 F.Supp. 926, 932-36 (E.D.Mo.1984). In Yaris, the issue before this Court was whether plaintiffs were entitled to an award of attorney’s fees under the Rehabilitation Act and various constitutional provisions. In Yaris, on the basis of Smith and Tatro, this Court held that the plaintiffs therein were not entitled to an award of attorney’s fees under the Rehabilitation Act, “because the relief obtained by plaintiffs was available under the EHA_” Yaris, 599 F.Supp. at 935. Because SSD’s motion essentially requires this Court to again apply Smith and Tatro, this Court’s discussion of Smith and Tatro in Yaris bears repeating, as follows:

In Smith, the parents of a child suffering from cerebral palsy contested a school district’s refusal to fund the child’s placement in a special education program. The parents challenged the constitutionality of the procedure utilized to make the school district’s decision and the substance of that decision. Their suit in federal District Court sought declaratory and injunctive relief based on state law; the Education of the Handicapped Act (EHA), 20 U.S.C. §§ 1401 et seq.; § 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794; and 42 U.S.C. § 1983. The District Court declared that the procedure violated federal due process requirements and that, as a matter of state law, defendants were obligated to pay for the child’s education. Although the District Court did not decide plaintiffs’ federal statutory and constitutional claims relating to his substantive challenge, it awarded attorney’s fees to plaintiffs under 42 U.S.C. § 1988 and § 505 of the Rehabilitation Act of 1978, as amended, 29 U.S.C. § 795, because the unaddressed federal claims were substantial and nonfrivolous. On plaintiffs’ appeal from the Court of Appeals’ reversal of the attorney’s fees award, the Supreme Court held that plaintiffs were not entitled to fees under either § 1988 or § 505, because the relief obtained by plaintiffs was available under the EHA.
The Supreme Court in Smith reasoned that Congress intended the EHA to be the exclusive avenue for litigating a handicapped child’s right to a free appropriate public education. Smith, — U.S. -, 104 S.Ct. at 3468. The Court further reasoned that by creating a comprehensive remedial scheme in the EHA, which did not include a right to attorneys’ fees, Congress did not intend for litigants to circumvent that scheme by bringing EHA claims together with analogous § 1983 and Rehabilitation Act claims and then claiming attorneys’ fees under the latter two (2) statutes. Id. 104 S.Ct. at 3469, 3472. With respect to the Smith plaintiffs’ equal protection claim under § 1983, the Court concluded:
that where the EHA is available to a handicapped child asserting a right to a free appropriate public education, based either on the EHA or on the Equal Protection Clause of the Fourteenth Amendment, the EHA is the exclusive avenue through which the child and his parents or guardian can pursue their claim.
Id. at 3470.
With respect to the Rehabilitation Act claim, the Court employed a similar, but different, analysis. Id. at 3472. The Court noted that although the Rehabilitation Act and the EHA are different substantive statutes, both statutes, “as applied to the right of a handicapped child to a public education, have been interpreted to be strikingly similar.” Id. However, the Court stated that “[t]he significant difference between the two, as applied to special education claims, is that the substantive and procedural rights assumed to be guaranteed by both statutes are specifically required only by the EHA.” Id. (emphasis added). From this specificity, the Court concluded that “Congress did not intend a handicapped child to be able to circumvent the requirements or supplement the remedies of the EHA by resort to the general antidiscrimination provision of § 504.” Id. at 3473. The Court summarized its holding, as follows:
[WJhere, as here, whatever remedy might be provided under § 504 is provided with more clarity and precision under the EHA, a plaintiff may not circumvent or enlarge on the remedies available under the EHA. by resort to § 504.
Id. at 3474. In Smith, because the relief obtained by the plaintiffs was available under the EHA and, thus, § 504 was not available as an alternative basis for said relief, the plaintiffs were not entitled to attorney’s fees under § 505 of the Rehabilitation Act. Id.
In Tatro, the companion case to Smith, a handicapped child was being educated at public expense by defendants. However, defendants did not make provision for school personnel to administer a procedure to plaintiff, which she required to avoid injury to her kidneys, known as “clean intermittent catheterization” (CIC). The plaintiff brought suit in federal District Court alleging that defendants’ refusal to provide CIC services violated the EHA and § 504 of the Rehabilitation Act. The District Court held that defendants’ refusal violated both statutes and awarded attorney’s fees under § 505 of the Rehabilitation Act. On appeal, the Supreme Court applied Smith and reversed the award of attorney’s fees, as follows:
We hold today, in Smith v. Robinson, ..., that § 504 is inapplicable when relief is available under the Education of the Handicapped Act to remedy a denial of educational services. Respondents are therefore not entitled to relief under § 504, and we reverse the Court of Appeals’ holding that respondents are entitled to recover attorney’s fees.
Tatro, — U.S. -, 104 S.Ct. at 3379.

Yaris, 599 F.Supp. at 933-34.

In its Smith opinion, however, the Supreme Court indicated in dicta that the Rehabilitation Act might still apply in two (2) situations. Yaris, 599 F.Supp. at 935. The first situation was alluded to by the Supreme Court, as follows:

We emphasize the narrowness of our holding. We do not address a situation where the EHA is not available or where § 504 guarantees substantive rights greater than those available under the EHA.

Smith, — U.S. at -, 104 S.Ct. at 3474. The second situation was discussed by the Supreme Court in a footnote, as follows:

Of course, if a state provided services beyond those required by the EHA, but discriminatorily denied those services to a handicapped child, § 504 would remain available to the child as an avenue of relief.

Smith, — U.S. at -, n. 22, 104 S.Ct. at 3473 n. 22. Plaintiffs argue that their second amended complaint falls within both of these so.-called “exceptions” to the rule announced in Smith and Tatro.

It is clear to this Court that plaintiffs’ second amended complaint asserts a claim for relief that is available under the EHA. Plaintiffs characterize their claim as a “discriminatory deprivation of plaintiffs’ right to education” and characterizes SSD’s allegedly wrongful conduct as failing and refusing to provide a “free, appropriate and non-discriminatory public school education”. Plaintiffs’ claim is as encompassed by the procedures available under the EHA as were the claims in Yaris. Indeed, the record of this case reflects that plaintiffs originally invoked the EHA and, pursuant to this Court’s Order, the administrative procedure available to plaintiffs under the EHA was utilized. In the course of said administrative proceedings, plaintiffs’ EHA claims were settled. A settlement agreement approved by this Court on April 23, 1980, provided for Terri Ann Miener’s placement, education and psychiatric treatment in the Crittenton Center and Hickman-Mills School District in Kansas City, Missouri. Thus, unless the two (2) exceptions suggested by the Supreme Court in Smith are applicable to this case, it appears that the effect of plaintiffs’ second amended complaint is “to circumvent the requirements or supplant the remedies of the EHA by resort to the general antidis-crimination provision of § 504 [of the Rehabilitation Act].” Smith, — U.S. at -, 104 S.Ct. at 3473.

Plaintiffs argue that their second amended complaint escapes the rule declared in Smith, because plaintiffs’ claim first began to accrue on February 4, 1977, whereas the EHA did not become effective until October 1, 1977. Plaintiffs also argue that the Rehabilitation Act rights asserted in their second amended complaint are substantive rights greater than those available under the EHA. First, with respect to the availability of the EHA, this Court must reject plaintiffs’ argument. Although the procedures of the EHA were not technically available at the earliest date that plaintiffs’ claim arose, plaintiffs did subsequently invoke the EHA administrative process until they settled their enforcement claims. In addition, while the EHA administrative process was not available to plaintiffs on February 4, 1977, it is clear that said procedures were available to plaintiffs a short time thereafter. This is clearly not the unavailability situation contemplated by the Supreme Court in Smith. As for plaintiffs’ argument that the Rehabilitation Act rights asserted in their second amended complaint are greater than those guaranteed by the EHA, plaintiffs’ claim is that SSD failed to treat her equally in that it failed to create the necessary programs for Terri Ann Miener’s education and Terri Ann Miener’s handicaps prevented her from being able to take advantage of SSD’s .existing programs. The substantive rights asserted by plaintiffs are not greater than those guaranteed by the EHA, because the EHA provides the procedural machinery for determining what is an “appropriate” education for Terri Ann Miener and thus provides a more precise remedy than the Rehabilitation Act. The discrimination alleged by plaintiffs in their second amended complaint is fully encompassed by the EHA. The first Smith exception is not applicable.

Plaintiffs also rely on the exception stated in footnote 22 of the Smith opinion, in that on February 4, 1977, all of the services provided by SSD were beyond those required by the EHA. Relying on footnote 22, plaintiffs maintain that the Rehabilitation Act remains available as an avenue of relief, because plaintiffs allege that SSD discriminatorily denied them services provided by SSD beyond those required by the EHA. Plaintiffs’ argument must be rejected, because it is based on an erroneous interpretation of footnote 22. Footnote 22 contemplates that a state has complied with the requirements of the EHA but goes beyond said requirements and offers additional services and provides said additional services on a discriminatory basis. Plaintiffs’ argument, on the other hand, is based on the premise that anything provided by SSD prior to the effective date of the EHA was “beyond those required by the EHA”. This is clearly not the situation contemplated by footnote 22 in Smith. Rather, this is a variation of plaintiffs’ first argument that the EHA was not available. Accordingly, footnote 22 is not applicable in this case.

Plaintiffs’ second amended complaint must be dismissed on the basis of Smith, because to allow the complaint would be tantamount to allowing plaintiffs to “circumvent or enlarge on the remedies available under the EHA by resort to § 504 [of the Rehabilitation Act].” Smith, — U.S. at -, 104 S.Ct. at 3474.

      . This holding is supported, at least in part, by the Supreme Court's subsequent decision in Smith v. Robinson, — U.S. -, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984).

      . In its simplest form, the underlying substantive issue in Yaris was whether certain handicapped children were entitled to summer programming at public expense. Yaris v. Special School District of St. Louis County, 558 F.Supp. 545 (E.D.Mo.1983).


author: FOREMAN, Chief Judge:

text:
    Lionel MARTIN, et al., Plaintiffs, v. GRANITE CITY STEEL DIVISION OF NATIONAL STEEL CORPORATION, Defendant.
    Civ. No. 84-3125.
    United States District Court, S.D. Illinois.
    May 9, 1985.

      See also, D.C., 596 F.Supp. 293.
    Richard Shaikewitz, Wiseman, Shaikew-itz, McGivern and Wahl, Alton, Ill., for plaintiffs.
    Eric Robertson, Lueders, Robertson and Konzen, Granite City, Ill., J.F. McKenna, III, and C.R. Bapst, III, Thorp, Reed and Armstrong, Pittsburgh, Pa., for defendant.
   MEMORANDUM AND ORDER

FOREMAN, Chief Judge:

Plaintiff’s filed this action alleging that the defendant, by recycling coal by-products into its coke ovens, intentionally exposed the plaintiffs to toxins and carcinogens. The plaintiffs seek to represent a class of all persons who have worked for the Granite City plant since June of 1982 and all non-employees who have lived within a five mile radius of the plant since June of 1982. Before the Court at this time is defendant’s motion to dismiss (Document No. 6). The defendant raises a number of points in support of its motion. First, the defendant alleges that Count I, and Count II in so far as it pertains to former employees, are barred by the exclusivity provisions of the Illinois Workmen’s Compensation Act, Ill.Rev.Stat.Ann. ch. 48, § 138.5 (Smith-Hurd Supp.1984-85), or the Illinois Workers’ Occupational Diseases Act, Ill. Rev.Stat.Ann. ch. 48, § 172.40 (Smith-Hurd Supp.1984-85). Second, the defendant alleges that Count III fails to state a valid claim for relief since the Uniform Hazardous Substance Act, Ill.Rev.Stat.Ann. ch. IIIV2, § 251 et seq. (Smith-Hurd) does not apply to the industrial use or manufacturing of industrial products. Finally, the defendant contends that this action, as to all counts, cannot be maintained as a class action.

With regard to the defendant’s first contention that the exclusive remedy provisions of the Workmen’s Compensation Act and/or the Occupational Disease Act bar any common law action for the alleged injury, the Court holds that these provisions do not bar the plaintiffs’ action. Initially, the Court notes that the exclusivity provisions of the Workmen’s Compensation Act and the Workers’ Occupational Diseases Act are homologous for purposes of judicial construction. Dur-Ite Co. v. Industrial Commission, 394 Ill. 338, 68 N.E.2d 717 (1946).

As a matter of established Illinois law, to escape the bar of exclusivity provisions the plaintiff must show that the injury (1) was not accidental; (2) did not arise out of employment; (3) was not incurred during the course of employment; or (4) was noncompensable under the act. Fregeau v. Gillespie, 96 Ill.2d 479, 71 Ill.Dec. 716, 451 N.E.2d 870 (1983). Here the only question is whether the injuries alleged were accidental. Plaintiffs contend that the injuries were not accidental but were intentional. The complaint alleges that the defendant intentionally, knowingly, and willfully exposed the plaintiffs to toxins by changing an industrial process. Several recent Illinois cases affirm the plaintiffs’ argument.

In Handley v. Unarco Indus. Inc., 124 Ill.App.3d 56, 79 Ill.Dec. 457, 463 N.E.2d 1011 (1984), plaintiffs-employees brought suit alleging murder, fraud; and battery; that the defendant employer intended to kill them and that defendant’s conscious purpose was that asbestos would become trapped in the workers’ bodies and that defendant intended bodily harm to plaintiffs. Additionally the complaint alleged fraud, in that defendant represented asbestos dust was harmless; that defendant knew this was false and that plaintiffs would become ill and die; that defendant knew the plaintiffs were not aware of the hazard and that defendant made the representations intending that the plaintiffs would rely upon them. The defendant’s motion to dismiss based upon the exclusive remedy provisions Worker’s Occupational Diseases Act was denied. The court recognized that these allegations were apparently posited to escape the exclusive remedies at the act, but held them sufficient to allege that the defendant directed, encouraged, or committed an intentional tort. Thus the action fell outside at the act’s remedies. The court buttressed its holding by arguing that the balance established under the no-fault liability system of the Workers’ Occupational Diseases Act and the Workmen’s Compensation Act would be upset if the court allowed an employer who committed an intentional tort to use the Act as a shield against full liability thereby shifting liability throughout the system on other innocent employers.

In another asbestos case brought before the Federal District Court for the Northern District of Illinois the court had to decide whether the Illinois Worker’s Compensation Act barred a complaint alleging an employer’s intentional torts. Matter of Johns-Mansville/Asbestosis cases, 511 F.Supp. 1229 (N.D.Ill.1981). The court held that the complaint, which alleged a uniform and intentional policy to harm the employees, fell outside the Act’s provision.

Other recent cases, while not precisely on point, implicitly support the plaintiffs’ position. In Mier v. Staley, 28 Ill.App.3d 373, 381, 329 N.E.2d 1, 8 (1975), the court stated that “the only injuries, if any, outside the Act would be intentional torts.” In Jablonski v. Multack, 63 Ill.App.3d 908, 20 Ill.Dec. 715, 380 N.E.2d 924 (1978), the court held that a corporate employer may not be the subject of a suit at common law by an employee for damages intentionally afflicted by a co-employer not acting as the employer’s alter ego. The Illinois Supreme Court in Collier v. Wagner Castings Company, 81 Ill.2d 229, 41 Ill.Dec. 776, 408 N.E.2d 198 (1980), stated in dictum:

Larson suggests that an intentional tort-feasor should not be able to shield his liability with the exclusivity provisions of a compensation statute premised on insuring accidental injuries ... but that if the injured party receives compensation pursuant to the Act, he or she should not be heard to subsequently allege their intentional nature.... Our Appellate Court, in Jablonski v. Multack (1978), 63 Ill.App.3d 908, 20 Ill.Dec. 715, 380 N.E.2d 924, has concluded that the law’s paramount interest to avoid shielding from liability one who intends to do harm and, further, that the legislature could not be presumed to have intended to permit an intentional tortfeasor to shift his liability to a fund paid for with premiums collected from innocent employers.

81 Ill.2d at 238-39, 41 Ill.Dec. at 781, 408 N.E.2d at 203.

Thus, the exclusivity provisions of the Acts do not bar an employee from maintaining a common law action against his employer for an intentional tort. Here, the allegations of the complaint, taken as true and in a light most favorable to the plaintiffs, properly state a claim in intentional tort. As such, Count I falls outside the exclusive remedy provisions of the Workmen’s Compensation Act, and the Occupational Disease Act.

The Court recognizes that this exception is subject to potential abuse. Any employee injured in the workplace may seek to avoid the exclusive remedy provisions by alleging that his employer intentionally caused the injury. However, while such allegations may not be susceptible to a motion to dismiss, they could, and should if unsupported, fall victim to a motion for summary judgment. Further, if the allegations are totally unfounded in fact, the defendant may recover its attorney’s fees in defending the action.

The defendant next argues that Count III should be dismissed since the Uniform Hazardous Substance Act, Ill.Rev. Stat.Ann. ch. IIIV2, § 251 does not encompass or regulate the industrial manufacturing and industrial use of hazardous substances, and even if it did, it does not provide for a private cause of action. The plaintiffs have not responded to this argument. In any event, the defendant is correct. The Act was designed to relate to hazardous substances intended or suitable for household use. The act therefore is inapplicable to this case, since by-products from a coke oven at a steel manufacturing plant are not substances intended or suitable for household use. Thus, Count III fails to state a claim upon which relief can be granted.

Finally, the defendants maintain that this action cannot be maintained as a class action. The Court reserves ruling on the class certification issue until both parties have more fully briefed the relevant issues.

Accordingly, the defendant’s Motion to Dismiss (Document No. 6) is GRANTED IN PART and DENIED IN PART. Count III of the complaint is hereby DISMISSED. The plaintiffs are ORDERED to file a memorandum in support of class certification within thirty (30) days from the date of this Order. The defendant may then respond to this memorandum no later than fifteen (15) days after receiving it.

IT IS SO ORDERED.


author: LASKER, District Judge.

text:
    Irma ZEIGAN and Jay Skoller, Plaintiffs, v. BLUE CROSS AND BLUE SHIELD OF GREATER NEW YORK, Blue Cross Association, Blue Shield Association and the United States of America, Defendants.
    No. 81 Civ. 4036(MEL).
    United States District Court, S.D. New York.
    May 9, 1985.
    As Amended June 4, 1985.

      Tedd Blecher, New York City, for plaintiffs.
    Breed, Abbott & Morgan, New York City, for defendants Blue Cross and Blue Shield of Greater New York, Blue Cross and Blue Shield Assn.
   LASKER, District Judge.

In an earlier opinion, Skoller v. Blue Cross-Blue Shield, 584 F.Supp. 288 (S.D.N.Y.1984), the claims asserted against defendants Blue Cross and Blue Shield of Greater New York and Blue Cross and Blue Shield Association (collectively referred to as “BCBS” or “the corporate defendants”) were dismissed. Three causes of action, (1) alleging that BCBS has breached a contract with the plaintiffs, Irma Zeigan (formerly Skoller) and her son Jay Skoller; (2) that BCBS unlawfully discriminated against the plaintiffs; (3) and that BCBS is in violation of the federal antitrust laws, were dismissed with leave for plaintiffs to file a motion to amend. See id. at 293 n. 4.

Plaintiffs now move to amend their complaint to assert four causes of action solely against the corporate defendants and a fifth cause of action jointly against the Blue Cross and Blue Shield Association and the United States. All five proposed amended claims are opposed by BCBS on the grounds of futility, timeliness, and lack of good faith. The motion is granted in part and denied in part.

BCBS first asserts that amendment should be denied on the ground of futility because all five of the proposed claims asserted against it are defective. In the view of BCBS, the first proposed cause of action, which alleges that the corporate defendants violated the ’federal antitrust laws, is “too vague, confused and concluso-ry to stand.” Defendants’ Memorandum of Law, filed July 16, 1984, at 6.

The proposed claim alleges in relevant part that the defendants have engaged in an unlawful combination and conspiracy in restraint of trade through a boycott of non-member BCBS hospitals in connection with the furnishing of treatment for mental illness and hospitalization to BCBS subscribers, and that as a consequence of this practice non-member BCBS hospitals have been hindered in the provision of hospitalization for the treatment of mental illness while member BCBS hospitals have obtained a corresponding competitive advantage with respect to the provision of this service. See Proposed Amended Complaint, 1ÍH 19-20, reprinted in, Plaintiffs’ Notice of Motion, filed May 23, 1984.

Plaintiffs contend that this claim is sufficient since it is closely modeled upon the elements of the antitrust cause of action discussed in Blue Shield v. McCready, 457 U.S. 465, 102 S.Ct. 2540, 73 L.Ed.2d 149 (1982). In that case, the Supreme Court held that an individual subscriber to a prepaid group health plan purchased by her employer from Blue Shield of Virginia had standing to sue Blue Shield for violating the federal antitrust laws. See id. at 472-85, 102 S.Ct. at 2545-52. The subscriber’s complaint alleged that Blue Shield had participated in an unlawful conspiracy in violation of Section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1 (1982), affecting the market for psychotherapy services by excluding and boycotting clinical psychologists from receiving compensation under the Blue Shield from receiving compensation under the Blue Shield health care plans. See Blue Shield v. McCready, supra, 457 U.S. at 469-70, 102 S.Ct. at 2543-44. The Court noted that the conspiracy was directed at psychologists in an effort to halt their encroachment into the market for psychotherapy services which physicians and psychiatrists had sought to preserve for themselves. See id. at 478-79, 102 S.Ct. at 2548.

Although Federal Rule of Civil Procedure 15(a) provides that “leave shall be freely given [to amend pleadings] when justice so requires”, the Court of Appeals for this Circuit has pointed out that “[a] trial court does not abuse its discretion in denying leave to amend a complaint which even as amended would fail to state a cause of action.” S.S. Silberblatt, Inc. v. East Harlem Pilot Block, 608 F.2d 28, 42 (2d Cir.1979); see also Ahbez v. Edwin H. Morris & Co., 548 F.Supp. 664, 667 (S.D.N.Y.1982) (motion to amend complaint denied without prejudice due to futility of amendment). On the other hand, amendment of pleadings is generally favored in order “to facilitate a proper decision on the merits.” Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957); Holiday Publishing Co. v. Gregg, 330 F.Supp. 1326, 1328 (S.D.N.Y.1971).

In this case, plaintiffs’ motion to amend by adding the first proposed cause of action must be denied because the claim does not allege the type of restraint of trade cognizable under the federal antitrust laws. The proposed cause of action asserts that the defendants have conspired to hinder non-member BCBS hospitals which provide hospitalization for the treatment of mental illness to the benefit of member BCBS hospitals which provide a comparable service. However, the proposed amended complaint also alleges that BCBS has refused to compensate member BCBS hospitals for long-term hospitalization arising from the treatment of mental illness. See Proposed Amended Complaint, supra, 1126. As a result, the complaint fails to allege restraint of trade within a given market. Unlike Blue Shield v. McCready, supra, the proposed amended complaint is not concerned with the market for psychotherapy services because it alleges that the corporate defendants compensate no hospitals for long-term hospitalization related to mental illnesses: For the same reason, we cannot accept the proposed claim’s assertion that BCBS nonmember hospitals are placed at a competitive disadvantage with respect to hospitalization for the treatment of mental illness because plaintiffs’ suit, as we understand it, is bottomed on the refusal of a member BCBS hospital to bear the full cost of providing long-term mental illness hospitalization, thereby forcing plaintiffs to turn to a nonmember BCBS hospital for assistance. Accordingly, that portion of plaintiffs’ motion which seeks leave to add a proposed antitrust cause of action is denied because the proposed claim does not allege a market in which competition is restrained.

The proposed second cause of action alleges that the corporate defendants are in breach of their contract with BCBS subscribers because they refused to pay for long-term hospitalization for mental illness at BCBS member hospitals. In the earlier opinion, plaintiffs’ two and one-half line claim alleging a breach of contract was dismissed because it failed to meet the requirements of Federal Rule of Civil Procedure 8(a) that a pleading set forth “a short and plain statement of the claim showing that the pleader is entitled to relief.” See Skoller v. Blue Cross-Blue Shield, supra, 584 F.Supp. at 293 n. 4.

BCBS argues that it is futile to allow the proposed claim because there are no allegations as to how plaintiffs have been injured by the alleged breach of contract and because, at least in the view of the corporate defendants, plaintiffs have received all the benefits they were entitled to receive under their BCBS plan.

We find that the second proposed amended cause of action satisfies the pleading requirements of Rule 8(a) and is not, based upon the record developed in this case and the facts alleged in the amended complaint, a futile claim. The proposed count does allege that plaintiffs were injured by defendants’ breach, see Proposed Amended Complaint, supra, 1127. While the corporate defendants are correct that the claim does not specifically allege the nature of the injury, based upon the proposed amended facts, no great leap of imagination is required to surmise the nature of plaintiffs’ claim: that they incurred significant expenses by resorting to a nonmember BCBS hospital for treatment due to the refusal of BCBS to compensate plaintiffs for mental illness hospitalization in a BCBS member hospital. In addition, the fact that the corporate defendants may dispute the amended complaint’s allegations does not make the proposed claim an exercise in futility for the plaintiffs. Accordingly, the portion of the motion to amend which seeks to add the second cause of action is granted.

The proposed third claim alleging prospective interference with contract relations by BCBS is not, as the corporate defendants’ contend, deficient as a matter of New York law. The business tort known as interference with prospective advantage, which includes interference with a contract, is cognizable when a plaintiff alleges that but for the interference he or she would have been able to enter into the contract or that the contract would have come into being. See A.S. Rampell, Inc. v. Hyster Co., 3 N.Y.2d 369, 144 N.E.2d 371, 165 N.Y.S.2d 475 (1957); Williams & Co. v. Collins, Tuttle & Co., 6 A.D.2d 302, 306, 176 N.Y.S.2d 99, 103 (App.Div., 1st Dept. 1958); De Santis v. City of Troy, 83 Misc.2d 195, 201, 371 N.Y.S.2d 310, 315-16 (Sup.Ct., Rensellaer Co.1975).

In this case, the proposed amended claim in question alleges that “but for [the corporate defendants’] unlawful acts, [BCBS] member hospitals would have recognized the validity of plaintiffs’ health care insurance and not have required exorbitant payments in advance of admission, and would not have refused admission to plaintiff JAY SKOLLER and others similarly situated.” Proposed Amended Complaint, supra, H31. We read this.paragraph as properly alleging that plaintiffs would have been able to enter a contract with a BCBS member hospital for fully covered service but for the corporate defendants’ interference. The motion to add the proposed amended complaint’s third claim is accordingly granted.

The proposed fourth and fifth claims allege violations by the corporate defendants of federal statutory provisions governing the terms of health insurance for federal employees. The fourth claim alleges that BCBS violated 5 U.S.C. § 8907 by not supplying to the United States Office of Personnel Management (“OPM”) information relating to refusal to make reimbursements for long-term mental illness hospitalization, and that federal employees were thereby prevented from making an informed choice among the various health insurance plans offered to them. The statute provides in relevant part that OPM “shall make available to each employee eligible to enroll in a health benefits plan under this chapter such information ... after consultation with the carrier, as may be necessary to enable the employee to exercise an informed choice among the types of plans described by [a related provision.]” 5 U.S.C. § 8907 (1982).

This provision, as the corporate defendants correctly point out, imposes an obligation upon the federal government to disclose information about health benefits plans to its employees. Because OPM is obligated to consult with insurance carriers before health benefits information is disclosed, plaintiffs read the provision as implying a duty of disclosure for carriers like BCBS which creates a private right of action against the carrier. However, plaintiffs have provided no authority for their interpretation of Section 8907, and there exists no apparent ambiguity in the provision which lends support to this view. In addition, we do not think that Section 8907 creates a private right of action for health care subscribers and that plaintiffs therefore do not have standing to assert this claim. See Director, Edward J. Meyer Memorial Hospital v. Stetz, 433 F.Supp. 323, 325-26 (W.D.N.Y.1977). Accordingly, we find that plaintiffs have failed adequately to allege a cause of action against BCBS and deny their motion to amend the complaint to add the fourth proposed cause of action.

The fifth proposed claim is asserted jointly against the United States and Blue Cross and Blue Shield Association and alleges that the contract made between them violates 5 U.S.C. § 8902(f) because as implemented, it excludes individuals from coverage because of their health status by denying payments for long-term mental illness hospitalization. See Proposed Amended Complaint, supra, ¶ 41. 5 U.S.C. § 8902(f) provides in relevant part that “[a] contract may not be made or a plan approved which excludes an individual because of race, sex, [or] health status.... ” BCBS argues that, like the proposed amended complaint’s fourth claim, the provision does not impose a requirement upon health insurance carriers but only upon OPM. Again, plaintiffs have cited no authority for the proposition that this provision of the statute applies to carriers as well as OPM, or confers any benefit on the consumer. Inasmuch as the “plain language” of the provision appears simply to prohibit OPM from entering into discriminatory contracts, we find that the provision does not apply to the corporate defendants nor confer standing on the plaintiffs. Plaintiffs’ motion to amend to assert the fifth proposed claim against BCBS is accordingly denied.

Defendants also oppose plaintiffs’ motion on the grounds that it is untimely because it is made three years after this suit was filed and that the motion is not made in good faith. These assertions are not sufficient to defeat the motion. We have noted on previous occasions that mere delay alone, absent a showing of bad faith or undue prejudice, does not provide a basis for barring amendment of pleadings. See Fustok v. ContiCommodity Services, Inc., 103 F.R.D. 601, 603-04 (S.D.N.Y.1984), quoting, State Teachers Retirement Board v. Fluor Corp., 654 F.2d 843, 856 (2d Cir.1981). In this ease, BCBS has not shown that any prejudice they might experience from allowing the proposed amended claims is sufficiently “undue” to deny plaintiffs’ entire motion, nor has BCBS shown that the plaintiffs have affirmatively acted in bad faith.

In sum, plaintiffs’ motion to amend the complaint is granted in part to the extent of allowing them to assert the second and third claims found in the proposed amended complaint. The motion is denied as to the remaining claims in the proposed amended complaint asserted against the corporate defendants. In light of our conclusion that plaintiffs have failed to allege a federal cause of action, a question now exists whether the court has jurisdiction of the remaining claims, which are based on state law alone.

The motion is disposed of as indicated.

It is so ordered.

      . No action was taken as to two other causes of action asserted against the United States because, other than filing an answer to the complaint, the government has not, until quite recently, participated in this case.

      . The proposed amended complaint, unlike the original complaint, is framed as a class action on behalf of all BCBS subscribers who have incurred hospitalization costs relating to mental illness from 1977 until the date of certification. See Proposed Amended Complaint ¶ 7, reprinted

        in, Plaintiffs’ Notice of Motion, filed May 23, 1984. Plaintiffs have not moved for class certification and we accordingly deny this aspect of their motion to amend given the absence of briefing by the parties as to this issue.


author: WILLIAM C. LEE, District Judge.

text:
    UNITED STATES of America v. Walter ROJAS.
    No. F CR 84-15-01.
    United States District Court, N.D.Indiana, Fort Wayne Division.
    May 9, 1985.

      David H. Miller and Christina McKee, Asst. U.S. Attys., Fort Wayne, Ind., for plaintiff.
    Alan Karten, Miami, Fla., for defendant.
   ORDER

WILLIAM C. LEE, District Judge.

This matter is before the court on the Motion for New Trial filed by defendant Walter Rojas. Both sides have filed briefs supporting their respective positions. Oral argument was held on Rojas’ motion on May 1, 1985. Having considered the respective arguments and the applicable law, for the following reasons, Rojas’ motion for new trial will be denied.

Factual Background

On November 6, 1984 a Magistrate’s complaint was issued, charging Walter Rojas and others with conspiracy to violate 21 U.S.C. § 841(a)(1), specifically charging Rojas and others with conspiracy to distribute cocaine. Said conspiracy charge was an alleged violation of 21 U.S.C. § 846. The government made a motion to detain Walter Rojas and others, pursuant to 18 U.S.C. § 3142(f)(1)(C), (2). A detention hearing was held November 14, 1984. At that detention hearing, evidence was introduced regarding the details of the alleged conspiracy. Details of that alleged conspiracy elicited at the detention hearing included a series of telephone conversations between Rojas and others regarding the date, time and place of delivery of cocaine.

An indictment was handed down by the grand jury on December 6, 1984 and was kept sealed until December 10, 1984. That December 6 indictment charged Walter Rojas and others with conspiracy, pursuant to 21 U.S.C. § 846, to violate 21 U.S.C. § 841(a)(1) by allegedly conspiring to distribute cocaine. The December 6, 1984 indictment also charged Walter Rojas with three counts of violating 21 U.S.C. § 843(b), that is, knowingly or intentionally using a communication facility to facilitate the commission of an act constituting a felony. On December 19, 1984, Rojas’ present counsel, Alan Karten, entered an appearance on behalf of Walter Rojas. Further, on December 19, 1984, defendant Rojas and others were arraigned on the December 6, 1984 indictment. Trial was set in this cause for February 11, 1985. The telephone conversations were discussed at that arraignment. The court asked that all pretrial motions be filed within ten (10) days of the arraignment. On January 14, 1985, Rojas, through his counsel, filed ten (10) pretrial motions, one of which was a motion for leave to file additional motions. On January 16,1985, the court held a hearing on all pending motions and reset the trial date to March 11, 1985. Much of the pretrial logistical discussions between the court and Rojas dealt with the telephone conversations and how they were to be played at trial, translated at trial (the conversations took place in Spanish) and transcribed for trial.

On January 24, 1985 defendant Rojas filed three (3) additional motions: (1) a motion to suppress evidence; (2) a motion to dismiss counts VIII, X and XII of the December 6, 1984 indictment; and, (3) a motion to suppress contents of wire or oral communication intercepted and/or evidence derived therefrom. The subject of the motion to suppress the oral or wire communications included the three telephone conversations which were the subject of counts VIII, X and XII. An evidentiary hearing was held on that motion on March 7, 1985 before Judge Kanne, another judge of this district. A pretrial conference was scheduled in this matter for February 5, 1985. On February 4, 1985 Rojas’ counsel moved to be excused from attendance at the pretrial conference and stated that the counsel had “filed all necessary motions in the above referenced matter[.]” The court granted Rojas’ counsel’s motion.to be excused from the February 5, 1985 pretrial conference. On February 5, 1985, pursuant to an oral request made earlier by Rojas’ counsel, the court referred defendant’s motions to suppress to the Chief Judge of this district for reassignment to another judge for hearing.

On February 8, 1985, this court granted defendant Rojas’ motion to dismiss counts VIII, X and XII of the indictment. In the motion to dismiss the three counts, charging violations of 21 U.S.C. § 843(b), Rojas contended that the counts were fatally defective because they failed to allege a specific felony. Rojas did not file a memorandum in support of his motion. This court, through its own research, discovered controlling precedent from the United States Court of Appeals for the Seventh Circuit on the issue of the sufficiency of a charged count alleging a violation of 21 U.S.C. § 843(b). The court concluded that the three counts alleging violations of § 843(b) were fatally defective for pleading purposes because the counts lacked any specification or identification of the controlled substance involved.

The Seventh Circuit, in United States v. Hinkle, 637 F.2d 1154, 1158 (7th Cir.1981), held that the controlled substance involved in an alleged violation of § 843(b) must be specifically identified in a charged count because without a defendant being able to know which of the over 142 controlled substances specified in 21 U.S.C. § 812 is involved, a defendant cannot prepare a defense or establish a record to defend against the possibility of double jeopardy. This court concluded that the failure to name the specific controlled substance involved rendered counts VIII, X and XII of the December 6, 1984 indictment not minimally sufficient for pleading purposes. Although the court dismissed the three counts, evidence already before the court and the parties indicated that all knew which alleged controlled substance was involved (cocaine).

Mr. Karten, Rojas’ counsel, later informed the court that he was aware of the controlling Seventh Circuit case when he filed his motion to dismiss, accompanied by no supporting memorandum. He informed the court that

My original motion to dismiss the indictment was part of my plan and strategy in the defense of the case. I was hoping when I filed that motion that the government and the court — and I state that very frankly — would miss the Seventh Circuit case. I filed that motion merely as a hope that the Seventh Circuit later on would not find that I waived the issue on appeal.
I did not have to do any preparation, I felt, on those three counts of the indictment; because I knew I had a winner on appeal; and I knew I had a judgment of acquittal.
When the government filed a superced-ing indictment, at that point, I then had to make whatever preparation was necessary at that point in order to defend those three counts.

Transcript of May 1,1985 oral argument at pages 5-6. In other words, defendant’s trial strategy included setting traps for the court in order to create issues on appeal.

It is important to note that the indictment handed down on December 6, 1984 was not dismissed on Rojas’ motion, only counts VIII, X and XII of the indictment were dismissed. Thus, at the time this court granted defendant Rojas’ motion to dismiss counts VIII, X and XII of the indictment, count I, the conspiracy count, of the December 6, 1984 indictment was still outstanding.

On February 25, 1985, a superseding indictment was returned. Count I of the February 25, 1985 indictment is identical in every respect to count I of the December 6, 1984 indictment. In fact, the February 25, 1985 indictment is identical in every respect to the December 6, 1984 indictment with the exception that the counts alleging violations of 21 U.S.C. § 843(b) specifically identify cocaine as the controlled substance involved in the alleged violations of § 843(b), the substance of which allegation was known to defendant Rojas at least as early as the detention hearing held November 14, 1984. It was the February 25, 1985 indictment upon which the government went to trial and to which jeopardy attached.

An initial appearance was held on the superseding indictment before the Magistrate on February 27, 1985. Defendant Rojas appeared without his counsel. On March 1, 1985, the Clerk of the United States District Court for the Northern District of Indiana, Fort Wayne Division, received a letter from Rojas’ counsel in which Mr. Karten waived defendant Rojas’ right to an initial appearance hearing and a detention hearing. Mr. Karten stated that the fact that Rojas was presently being detained “would make these hearings moot as to Mr. Rojas.” In that letter, Mr. Kar-ten also stated that “If the Court has no objection, I would appreciate having Mr. Rojas’ arraignment prior to the commencement of the trial on March 11, 1985. David Miller has advised me that he has no objection to this request.” Rojas file, Docket No. 231.

Also on March 1, 1985, Mr. Karten on behalf of Walter Rojas filed a motion to set specifically Rojas’ arraignment. In that motion Karten asked the court to set the arraignment specially and stated as two of the grounds for that motion that (1) the defendant was recently reindicted in the above styled cause and (2) “specially setting the referenced arraignment will not prejudice either party.” Rojas file, Docket No. 228. In accordance with Rojas’ motion the court set arraignment for Walter Rojas on the reindictment on March 11, 1985. Rojas was arraigned March 11, 1985.

On March 12, 1985, a jury trial commenced on the February 25, 1985 indictment. At no time prior to or during the trial of this matter, did Mr. Karten, on behalf of Walter Rojas, make any attempt to bring the matter of thirty (30) days additional preparation time to the court’s attention nor did Rojas’ counsel move for a continuance in order to have more time to prepare his defense. During the voir dire and impaneling of the jury, after the initial voir dire and opportunity for challenge had passed on juror, no. 9, defendant Rojas through his counsel Alan Karten moved to back strike juror no. 9. At the side bar, the court inquired as to the reason for wanting to strike juror no. 9 after defendant had previously passed juror no. 9. The defendant Rojas had no explanation as to why he wished to back strike juror no. 9 nor could he offer any prejudice that he felt would result from having juror no. 9 remain. Rojas’ counsel stated that he was attempting to preserve and make a record on appeal. The court clearly implied to Rojas’ counsel that it would allow the juror to be stricken if Rojas’ counsel articulated a reason for the striking. The court denied his request to back strike juror no. 9. There is no contention that the court did not allow defendant Rojas to exercise his peremptory challenges or challenges for cause regarding juror no. 9 when juror no. 9 was initially voir dired and examined.

On March 15, 1985, the jury returned its verdicts. The jury found defendant Rojas guilty as charged on counts I, VIH, X and XII. On March 22, 1985, defendant Rojas through his counsel Alan Karten filed a motion for new trial listing two grounds for that motion. Those grounds were that (1) the court erred in its prevention of defendant Rojas’ back striking jurors; and, (2) the court erred in trying defendant within thirty (30) days of a superseding indictment without written waiver of the defendant.

At the oral argument held in this cause on May 1, 1985, Mr. Karten could not identify any actual prejudice his client suffered by proceeding to trial on March 12, 1985. Nor could Mr. Karten identify any actual prejudice he suffered in preparation for the March 12, 1985 trial. Any potential prejudice or delay he suffered in preparing his client’s defense on the three § 843(b) counts came as a result of Mr. Karten’s hope that the court would not find controlling precedent regarding sufficiency of indictments on § 843(b) charges and would deny his motion to dismiss the three counts citing only routine cases.

Mr. Karten represented that he did not do any preparation between the December 6, 1984 indictment and the granting of the motion to dismiss by this court on February 8, 1985 because he thought he had a “winner on appeal.” Mr. Karten maintained that it was only after the government filed a superseding indictment on February 25, 1985 that he then had to make whatever preparation was necessary in order to defend those counts. However, these potential grounds for prejudice are not grounds of prejudice based on lack of time for preparation. A simple time computation reveals that sufficient time was there for Mr. Karten in which to prepare on the three counts and on the conspiracy count. In fact, Rojas did prepare and implement a defense.

Back Striking Juror No. 9

The first ground of defendant Rojas’ motion for new trial concerns the court’s refusal to allow defendant Rojas to back strike juror no. 9 after defendant Rojas had passed on using one of his ten peremptory challenges during the seating of juror no. 9. Defendant Rojas also raises the issue of the defendant’s lack of notice as to the method used by this court in jury selection.

The manner in which peremptory challenges are exercised is a matter within the discretion of the trial court. The Seventh Circuit recently reaffirmed its holding that:

The manner in which peremptory challenges are exercised is within the sound discretion of the trial court, and in the absence of violation of settled principles of criminal law, federal statutes, or constitutional rights of defendant, such discretion is not abused.

United States v. Mackey, 345 F.2d 499, 502 (citations omitted) (7th Cir.), cert. denied, 382 U.S. 824, 86 S.Ct. 54, 15 L.Ed.2d 69 (1965) quoted with approval in United States v. Dennis, 737 F.2d 617, 619 (7th Cir.1984). See also United States v. Anderson, 562 F.2d 394 (6th Cir.1977). No settled principles, statutes or rights were violated here by this court’s refusal not to allow Rojas to back strike juror no. 9 in the absence of any allegation harm or prejudice would occur if the court did not allow Rojas to back strike juror no. 9.

In Mackey, the Seventh Circuit specifically approved the proper use of a trial court’s discretion to refuse to allow a peremptory challenge to a juror once the initial opportunity to challenge has been passed. Mackey, 345 F.2d at 502-03. The Supreme Court has also approved the practice. St. Clair v. United States, 154 U.S. 134, 147-48, 14 S.Ct. 1002, 1007-08, 38 L.Ed. 936 (1894). Trial courts have the discretion not to permit the striking of a juror after the initial opportunity to strike by peremptory challenge passes. Accord Carr v. Watts, 597 F.2d 830 (2d Cir.1979); United States v. Pimental, 654 F.2d 538 (9th Cir.1981); United States v. Turner, 558 F.2d 535 (9th Cir.1977).

Defendant Rojas does not allege that he was denied his right to a peremptory challenge of juror no. 9 when such juror was initially presented to defendant Rojas for voir dire examination and challenge. Defendant Rojas attacks the court’s refusal after juror no. 9 had been seated as a juror to allow defendant Rojas to exercise a peremptory challenge and back strike juror no. 9. Defendant Rojas complains that he was not on notice as to the method and procedure for jury selection since the Local Rules for the Northern District of Indiana do not contain any rule concerning the method and procedure for the exercise of peremptory challenges. The counsel for Rojas was not made aware of the local custom of this court not to permit back striking of jurors until the jury selection process had begun. Defendant Rojas does not identify any prejudice or potential prejudice which resulted from the court’s refusal to allow him to back strike juror no. 9 after failing to use a peremptory challenge or a challenge for cause to strike juror no. 9 at the time of juror no. 9’s voir dire and examination nor could he identify any prejudice at the time of his request to back strike juror no. 9. Any error which might have resulted from the court’s refusal to permit the back striking of juror no. 9 was harmless.

It is true that the Local Rules do not detail the manner in which peremptory challenges are exercised in the Northern District of Indiana. It is not an abuse of discretion for this court not to allow back striking of jurors through the use of a peremptory challenge once a defendant has had the opportunity to have additional questions asked of the juror, to hear those answers and to then first, have the opportunity to challenge the juror for cause and second, have the opportunity to exercise one of his peremptory challenges. Defense counsel for Rojas had adequate and ample opportunity to challenge juror no. 9, at the time of the initial voir dire and examination either for cause or through use of a peremptory challenge. The defense counsel for Rojas chose not to exercise a challenge. When the request was made to back strike juror no. 9, defense counsel had no explanation as to what circumstances, if any, had changed since the initial voir dire of juror no. 9. The court clearly implied that it would grant counsel’s request if any reason could be given. The defense counsel stated that he was merely attempting to create a record for appeal on the issue. The court then simply denied his request.

Having carefully examined the voir dire examination and the local custom for the exercise of peremptory challenge in this court, the court concludes that the refusal to allow the back striking of a juror without cause being articulated is not an abuse of discretion. The refusal to allow the back striking of a juror where no cause or prejudice can be articulated is not a per se violation of any settled principles, statutes or rights and is not grounds for a new trial. Defendant Rojas is not entitled to a new trial based upon this issue.

Possible Violation of Thirty-Day Rule

This second issue raised by Rojas in his motion for a new trial raises several difficult issues based upon the particular and peculiar facts involved in this case. The pnly Seventh Circuit case close to the facts and issues presented by this case is United States v. Horton, 676 F.2d 1165 (7th Cir.1982), cert. denied, 459 U.S. 1201, 103 S.Ct. 1184, 75 L.Ed.2d 431 (1983). In Horton, the first indictment in that criminal case had been dismissed by the district court on motion of the government. The grand jury handed down a reindictment of the defendant. The reindictment contained fewer counts, but charged the same offenses. The defendant moved for a thirty day continuance pursuant to 18 U.S.C. § 3161(c)(2). That request was denied by the trial court. The Seventh Circuit held that there was no Speedy Trial Act violation in the district court’s denial of a thirty day continuance, stating, “[A] fair implication of the statute is that reindictment for the same offense is permissible and that the time period begins to run with the first indictment.” Id. at 1170. Thus, the Seventh Circuit rule with regard to reindictments for the same offense(s) is that the thirty day minimum time period prescribed by § 3161(c)(2) runs from the date of the first indictment, not from the date of the reindictment.

It is absolutely clear that 18 U.S.C. § 3161(d)(1) provides that: •

If any indictment or information is dismissed upon motion of the defendant, or any charge contained in a complaint filed against an individual is dismissed or otherwise dropped, and thereafter a complaint is filed against such defendant or individual charging him with the same offense or an offense based on the same conduct or arising from the same criminal episode, or an information or indictment is filed charging such defendant with the same offense or an offense based on the same conduct or arising from the same criminal episode, the provisions of subsections (b) and (c) of this section shall be applicable with respect to such subsequent complaint, indictment, or information, as the case may be.

18 U.S.C. § 3161(d)(1). The crucial time period at issue in this case is the time period provided in § 3161(c)(2) which states:

Unless the defendant consents in writing to the contrary, the trial shall not commence less than thirty days from the date on which the defendant first appears through counsel or expressly waives counsel and elects to proceed pro se.

18 U.S.C. § 3161(c)(2).

The defendant strenuously argues that the indictment, returned by the grand jury on December 6,1984, was dismissed by this court on the motion of the defendant, thus, automatically triggering the minimum thirty day period provided in § 3161(c)(2). An expansive reading of § 3161(d)(1) could lead this court to conclude that the indictment was dismissed upon motion of the defendant. A reasonable reading of § 3161(d)(1) leads this court to conclude that the indictment handed down December 6, 1984 was not dismissed upon motion of the defendant. In any event, even if the court were to conclude that § 3161(d)(1) triggers the minimum thirty day trial preparation period as to counts VIII, X and XII, the counts actually dismissed on defendant’s motion, the court could not conclude that count I of the December 6, 1984 indictment, the conspiracy count, was dismissed upon motion of the defendant as count I of the indictment was not the subject of defendant’s motion to dismiss, was not dismissed by this court, and was used, word for word, in the reindictment as count I, handed down February 25, 1985. Count I charges violation of the same offense in both indictments.

An examination of § 3161(d)(1) reveals that Congress made an important distinction in determining what events would trigger anew the § 3161(c) time periods. Congress specifically provided in § 3161(d)(1) that if any part of a complaint is dismissed or dropped and any part is thereafter brought again, the time periods begin anew. Congress did not specifically provide that the time periods would begin anew where any charge contained in an indictment or information is dismissed on a defendant’s motion. It would be ludicrous to argue that Congress did not realize that often indictments or informations contain several charges. Congress obviously knew that criminal complaints could contain several charges because Congress provided that the time limits begin anew if any charge contained in a complaint is dismissed or otherwise dropped and later brought again.

The court concludes that Congress did not intend for § 3161(d)(1) to apply to those situations where only charges or counts and not the entire indictment or information are dismissed upon motion of the defendant. The defendant attacked only three of the four counts of the indictment in which he was named. Although the court granted his motion to dismiss those three counts, the court did not dismiss count I of the December 6, 1984 indictment, the conspiracy count. Thus, § 3161(d)(1) is inapplicable to this situation because the indictment was not dismissed upon motion of the defendant.

Having concluded that § 3161(d)(1) does not apply to the facts of this case does not end the court’s inquiry. The court is still left with the thorny issue of whether, in a reindictment or superseding indictment situation, § 3161(c)(2) applies. This issue encompasses both the situation where the first indictment is still outstanding when the superseding indictment is brought and the situation where the first indictment was dismissed on the government’s motion and a superseding indictment was later brought. The issue as stated also sets forth the secondary issue of whether, if § 3161(c)(2) applies in superseding or rein-dictment situations, the failure to follow § 3161(c)(2) can be harmless error.

The Seventh Circuit case previously discussed gives a straightforward answer to the issue as presented. Horton holds that, in a reindictment situation, where the rein-dictment charges the same offenses, thus, necessitating no new or change in defense strategies, the thirty day time period provided by § 3161(c)(2) runs, as does the maximum seventy day time limit provided in § 3161(c)(1), from the date of the first indictment. This holding, that a reindictment or superseding indictment for the same offenses is permissible and that the time period begins to run from the first indictment is in accord with several other circuits. United States v. Rush, 738 F.2d 497 (1st Cir.1984); United States v. Guzman, 754 F.2d 482 (2d Cir.1985); United States v. Todisco, 667 F.2d 255 (2d Cir.1981), cert. denied, 455 U.S. 906, 102 S.Ct. 1250, 71 L.Ed.2d 444 (1982); United States v. Williford, 727 F.2d 1106 (5th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 270, 83 L.Ed.2d 206 (White, J., dissenting); United States v. Dennis, 625 F.2d 782 (8th Cir.1980) (pre-1979 case). The conclusion by these circuits that reindictment for the same offenses, where the superseding indictment does not necessitate any change in defense strategy, does not require the giving of a new § 3161(c)(2) minimum trial preparation period, is in direct conflict with the position of the United States Court of Appeals for the Ninth Circuit.

It is the Ninth Circuit position upon which defendant Rojas’ motion for a new trial and accompanying argument is based. The Ninth Circuit’s position on the § 3161(c)(2) minimum time period is that, regardless of whether the indictment involved is a new indictment, a reindictment or a superseding indictment, a defendant will not be “forced to trial less than thirty days from the date on which the defendant first appears on the indictment on which the defendant ultimately goes to trial.” United States v. Harris, 724 F.2d 1452, 1455 (9th Cir.1984) (Harris court’s own emphasis). The Ninth Circuit has also held that § 3161(c)(2) “essentially establishes that any pretrial preparation period shorter than 30 days is inadequate per se. A violation of section 3161(c)(2) thus should be treated like an erroneously denied motion for a continuance, because both of these procedural errors deny a defendant a fair trial by forcing him into court before he has had adequate time for preparation.” United States v. Daly, 716 F.2d 1499, 1506 (9th Cir.1983), cert. dismissed, — U.S. -, 104 S.Ct. 1456, 79 L.Ed.2d 773 (1984). See also United States v. Arkus, 675 F.2d 245, 248 (9th Cir.1982) (where defendant reindicted after dismissal of an indictment .on government’s motion, defendant is entitled to thirty days pursuant to § 3161(c)(2)).

There is, thus, an obvious split among the circuits as to when and how § 3161(c)(2) applies in a reindictment or superseding indictment situation. The United States Supreme Court has granted certiora-ri in a Ninth Circuit case, United States v. Rojas-Contreras, — U.S. -, 105 S.Ct. 1167, 84 L.Ed.2d 319 (1985). The questions presented to the United States Supreme Court for decision in the Rojas-Contreras case will be: (1) Does defense preparation period provision of Speedy Trial Act, 18 U.S.C. § 3161(c)(2), prohibit commencement of trial within 30 days of defendant’s arraignment on a superseding indictment when defense preparation period of 30 days has been allowed following arraignment on original indictment; and, (2) In the circumstances of that case, was any violation of § 3161(c)(2) harmless.

This court is unable to agree with the Ninth Circuit position that, regardless of the circumstances, any pretrial preparation period shorter than thirty days is inadequate per se and requires automatic reversal of conviction. This court concludes that the Seventh Circuit and the other circuits in accord with the Seventh Circuit position have taken the better approach to implementing the basic fundamental policy behind § 3161(c)(2) which is to “ensure that a defendant is not required by the time limits prescribed by the Act to proceed to trial without an adequate period to prepare a defense.” Arkus, 675 F.2d at 248. See also Rush, 738 F.2d at 511; United States v. Mers, 701 F.2d 1321, 1322 (11th Cir.1983); United States v. Wooten, 688 F.2d 941, 951 (4th Cir.1982). In reindictment or superseding indictment situations, where the later indictment charges the same offenses and necessitates no changes in or new formulations of defense strategies, the § 3161(c)(2) trial preparation time period runs from the date of the original indictment.

Congress intended that § 3161(c)(2) act to ensure that no defendant would be brought to trial pursuant to the Federal Speedy Trial Act so quickly that a defendant would not have time to prepare. The whole purpose of § 3161(c)(2) is to guarantee that a defendant has counsel and that that counsel has had the time to formulate defense strategies, to prepare for trial, and to review discovery. Section 3161(c)(2) has not been violated in this case. The defendant had more than thirty days preparation from the time of the original indictment, the date from which this court has concluded the thirty day time period began to run. The original indictment was handed down December 6, 1984 and trial did not commence until March 12, 1985. The defendant was reindicted on the same offenses charged in the December 6, 1984 indictment on February 25, 1985; no new defense strategies needed to be formulated nor were any real changes needed.

The defendant Rojas had more than ample opportunity to prepare for trial, and, in fact, did prepare for trial, following the handing down of the first indictment on December 6, 1984. Defendant’s present counsel appeared in this matter December 19, 1984 and immediately began preparation of defense strategies and began arranging to view discovery. From the very beginning, the telephone conversations which are the subject of counts VIII, X and XII of both indictments, were known, discovered, and discussed. The telephone conversations which are the subject of counts VIII, X and XII are part and parcel of count I of this case. All discovery undertaken between Mr. Karten’s appearance in the case and the trial in March involved the three telephone conversations.

In all, Mr. Karten filed thirteen (13) separate pretrial motions on behalf of his client. One of -those pretrial motions was a motion to suppress contents of wire or oral communication intercepted and/or evidence derived therefrom. The wire or oral communications which were the subject of that motion to suppress included the three telephone conversations which formed the basis of counts VIII, X and XII. An eviden-tiary hearing on that motion was held prior to trial. There is no factual basis in the record for any argument to be made that sufficient time was not available to have allowed Rojas the adequate opportunity to prepare his defense.

Rojas’ counsel represented that he deliberately did not do any preparation on the three telephone counts as part of his trial strategy because he hoped that the government and the court would miss controlling precedent in the Seventh Circuit regarding pleading sufficiency. Mr. Karten filed his motion January 24, 1985. It was granted February 8,1985. The pleading defect was cured in counts VIII, X and XII in a superseding indictment handed down February 25, 1985. The fact that Mr. Karten underestimated the court and the court’s ability to know controlling precedent in its own circuit is not evidence that Rojas was not provided adequate opportunity to prepare his case, but is evidence either of poor judgment or a choice in defense strategy made by Rojas’ counsel in preparing his defense. It is evidence that Rojas had adequate time to prepare his defense. No § 3161(c)(2) violation occurred; Rojas received his thirty days trial preparation time and more.

The point of the Federal Speedy Trial Act and its time limits is to guarantee a defendant a speedy trial where his counsel is prepared to mount a defense on his behalf. It is certainly not the point of the Federal Speedy Trial Act to guarantee a defendant procedural loopholes or traps to garner a new trial. That entire concept promotes delay of resolution of the case and frustrates the very purposes and policies underlying the Federal Speedy Trial Act.

Assuming, for argument’s sake, that counts VIII, X and XII of the February 25, 1985 indictment were not the same offenses charged in counts VIII, X and XII of the December 6, 1984 indictment and changes in or new defense strategies were necessary, the court would conclude that § 3161(c)(2) would apply, if the matter was brought to the trial court’s attention by a motion for continuance and harm could be shown. See, infra. However, § 3161(c)(2) would not apply, in any event, to count I of the February 25, 1985 indictment.

Count I fits squarely within the holding of the Seventh Circuit in Horton. Count I as constituted in the February 25,- 1985 indictment is a reindictment of the same offense charged in the original indictment (and charged in the November 6,1984 Magistrate’s complaint) and no new or changes in defense strategies were necessitated by the reindictment. Even if the court were to grant a new trial on counts VIII, X and XII because of a § 3161(c)(2) violation, it would not grant a new trial on count I. The reindictment did not change the government’s case nor the conceivable defenses by Rojas; Rojas suffered no prejudice on count I. The great bulk of the evidence adduced at trial was relevant and admissible as to count I; Rojas could not argue he was prejudiced by the improper joinder of counts VIII, X and XII. Accord Guzman, 754 F.2d at 486 (§ 3161(c)(2) error required only reversal of conviction on affected count).

Even if this court were to conclude that § 3161(c)(2) was violated as to counts VIII, X and XII because the defendant Rojas went to trial on March 12, 1985 on a superseding indictment handed down February 25, 1985, this court would conclude that any error was harmless. That conclusion would be based upon two factors: (1) the defendant had ample opportunity to formulate and to prepare a defense upon all counts of the February 25, 1985 indictment which named Walter Rojas; and, (2) the defendant never brought the issue of an additional thirty days to the court’s attention either prior to or during the trial of this matter.

The main charge against Walter Rojas was count I of the indictment upon which he went to trial, the conspiracy charge. Count I of the February 25, 1985 indictment to which jeopardy attached is identical in every respect to count I of the December 6, 1984 indictment, also naming Walter Rojas and alleging an involvement in a conspiracy to distribute cocaine. All of the discovery went and related to the conspiracy charge. It is true that this court, through its own research, since Mr. Karten chose not to bring to the court’s attention controlling precedent in the Seventh Circuit, held that counts VIII, X and XII of the December 6, 1984 indictment had to be dismissed for pleading defects. However, the fact that the court granted defendant’s motion to dismiss counts VIII, X and XII does not alter the fact that all parties, including Walter Rojas and his counsel, knew the basic subject matter of those offenses and of count I and further knew that the controlled substance involved was cocaine. All of the discovery disclosed to Walter Rojas related to count I as well as relating to counts VIII, X and XII of the indictment. In preparing for a defense of Walter Rojas on count I of the indictment, Karten, necessarily, was preparing a defense to counts VIII, X and XII of the indictment.

There simply is no prejudice present on the record due to the failure of this court to give Rojas thirty additional days for trial preparation or to obtain a written waiver of an additional thirty days trial preparation time, if thirty additional days were due Rojas. Any prejudice which may have resulted from not continuing the trial for thirty additional days stems from the trial strategy formulated and implemented by Rojas’ defense counsel regarding counts VIII, X and XII. There is no allegation whatsoever that the superseding indictment in any way caused Rojas’ defense strategy to be changed or altered as it related to the main charge against Walter Rojas, count I of both indictments, the conspiracy charge.

Even assuming for the sake of argument that some prejudice could have resulted or did result from there not being a continuance of the trial for thirty days, the court concludes that Rojas’ failure to bring the potential error to the court’s attention when it could have corrected that error is fatal to Rojas’ argument. In every case cited to the court by the parties and found and examined by the court in determining Rojas’ motion for new trial, the defense counsel brought the matter of the thirty-days to the court’s attention in each case by making motions for continuance. As the Ninth Circuit stated in Daly,

The necessity of alerting the trial court is of special importance when it is contended that the trial is set prematurely because if the error is called to the court’s attention, a continuance may be granted. Here the judge was alerted by the motion for continuance and the objections of counsel to the early trial setting.

Daly, 716 F.2d at 1506 n. 5.

The court fully agrees with Rojas’ counsel’s statement that, under the express statutory language of § 3161(c)(2), a waiver of the thirty day minimum trial preparation time period must be in writing; there cannot be a waiver of § 3161(c)(2) by silence of either a defendant or a defense counsel. But, noting that § 3161(c)(2) requires a written waiver does not answer the question of whether a defense counsel on behalf of his client must alert the trial court to an allegedly premature setting of a criminal trial or to the defendant’s need for additional time to prepare for trial.

The Daly court noted that § 3161(c)(2) cannot be waived by silence, but it also strongly noted that it was necessary for the potential error to be brought to the trial court’s attention. The purpose behind the thirty day time period is to allow adequate preparation of a defense; its purpose is not to allow a defendant to formulate a trial strategy where the potential error is not brought to the trial court’s attention in order to gain a second chance, with a new jury, if the defendant is convicted. If this court agreed with the defendant’s position that he can take advantage of a procedural error in trial setting when he did not bring that error to the trial court’s attention when it could and would have corrected it, then the court would be condoning a position that frustrates the very purpose of the Federal Speedy Trial Act which is to avoid delay and to effect speedy resolution of criminal matters.

In short, this court concludes that the defendant Rojas is not entitled to a new trial on the issue of a possible violation of § 3161(c)(2). The indictment of December 6, 1984 was not dismissed, on defendant’s motion, thus triggering § 3161(d)(1). The February 25, 1985 indictment was substantially the same indictment handed down December 6, 1984 as to counts VIII, X and XII and identically the same indictment as to count I. The thirty day time limit of § 3161(c)(2) ran from the December 6, 1984 indictment. No § 3161(c)(2) violation occurred. Even assuming § 3161(c)(2) applies to counts VIII, X and XII, it does not apply to count I. No § 3161(c)(2) error occurred on count I as it was absolutely identical in both the December 6, 1984 and February 25, 1985 indictments. Assuming § 3161(c)(2) applies, any error which resulted on counts VIII, X and XII of the indictment was harmless. Finally, assuming § 3161(c)(2) applies and further assuming some prejudice resulted from not granting defendant Rojas an additional thirty days, the defendant cannot prevail upon that ground because the defendant was aware of the potential error prior to and during trial and did not bring the potential error to the court’s attention until after the court was powerless to correct the error except for the court’s power to grant a new trial and to allow defendant Rojas a second chance in the judicial system, with a different jury.

Conclusion

Accordingly, on the basis of the foregoing, defendant Rojas’ motion for new trial is hereby DENIED.

      . If one assumes that § 3161(d)(1) triggers the thirty day time period as to counts VIII, X and XII, then the question becomes whether the error of not giving Rojas thirty days or obtaining a waiver can be harmless. The court hereby incorporates its analysis, infra, which concludes that a § 3161(c)(2) error can be harmless and that, under the facts of this case, any § 3161(c)(2) error would be harmless.