author: SWEET, District Judge.

text:
    UNITED STATES of America, v. Chokwe LUMUMBA, Defendant.
    No. 83 Cr.Misc. 1 P. 646 (RWS).
    United States District Court, S.D. New York.
    Feb. 21, 1985.
    Rudolph W. Giuliani, U.S. Atty., S.D. New York City, for United States of America; Stacey Moritz, Asst. U.S. Atty., New York City, of counsel.
    Edison, Davis & Lumumba, Detroit, Mich., for defendant; Harry Davis, Jeffrey Edison, Detroit, Mich., of counsel.
   OPINION

SWEET, District Judge.

This proceeding is before the court on remand following a reversal of a contempt conviction and sentence imposed upon Chokwe Lumumba (“Lumumba”), a lawyer, arising out of his conduct during the trial of USA v. Shakur, et al., 543 F.Supp. 1059 (1982) (the “Brinks case”) in which Lumumba successfully defended his client, Bilal Sunni-Ali (“Sunni-Ali”). 741 F.2d 12. It raises critical issues concerning the control of the trial process, the role of defense counsel, and the allocation of the responsibility for review. Upon the findings and conclusions set forth below, a judgment of conviction under Fed.R.Cr.P. 42(b) will be entered.

The court has been directed on remand to conduct this proceeding, something less than “a full-blown trial,” to permit Lumumba a reasonable opportunity to defend or explain his actions or present arguments in mitigation “in connection with a criminal contempt which the Honorable Kevin T. Duffy found to have been committed in the course of the Brinks case.” Motions with respect to the proceeding were heard on October 19 and December 21, 1984 and opinions were filed on November 26, 1984, 598 F.Supp. 209, and January 3, 1985 and evidence was presented during the week of January 28, 1985 and on February 4, 1985. On the entire record, I find that contempts were committed as found by Judge Duffy and that Lumumba’s defense, explanation, and mitigation are unavailing.

Prior Proceedings

The Brinks trial lasted from April 4 to September 4, 1983. Six defendants were charged with serious crimes, ranging from conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. to murder in the commission of an armed robbery. Five of the six were found guilty of certain of the charges. Lumumba’s client, Sunni-Ali, was acquitted. The transcript consists of over 12,000 pages.

Judge Duffy found Lumumba in contempt on two occasions during the trial, the first on April 13, during voir dire, and the second on June 8, during colloquy concerning the admissibility of certain evidence. In between these two findings there were numerous occasions when statements were made by Lumumba which Judge Duffy noted after the trial and which the government has characterized as disruptive. See Memorandum and Order of Judge Duffy, filed September 6, 1983. Judge Duffy’s Memorandum and Order, supra, set forth the events justifying the contempt citations and certified, pursuant to Fed.R.Crim.P. 42(a), that the events took place in his presence.

Following the filing of his memorandum and order, which by its terms constituted a conviction, Judge Duffy declined to sentence Lumumba, and the proceeding was assigned to me for that purpose. A hearing in connection with the sentence was held on October 27 and October 28, 1983 during which there was an opportunity for the presentation of mitigating factors, in the nature of a right of allocution, including a statement by Lumumba. Motions to dismiss and set aside the contempt conviction were heard and denied on November 17, 1983. 578 F.Supp. 100. On November 28, 1983 the imposition of sentence was suspended on both counts. Lumumba was placed on probation for three years and a condition of probation was the performance of 350 hours of community service during the first fifteen months of the probationary term.

An appeal was taken and in an opinion of July 27, 1984 the Court of Appeals reversed the conviction and remanded for further proceedings, stating:

The principal issue raised is whether due process requires that a lawyer cited for criminal contempt for conduct occurring during trial must — before being finally adjudicated in contempt at the end of the trial — have notice and an opportunity to be heard. Since the answer to this question is “yes,” and appellant was not afforded such due process rights, the judgment of conviction appealed from must be reversed.

USA v. Lumumba, 741 F.2d 12, 13 (2d Cir.1984).

Pretrial hearings were held on October 19 and December 21, 1984, and motions relating to the scope of the remand were heard and decided in memoranda filed on November 26, 1984 and January 3, 1985.

The mandated hearing took place from January 28 to February 4, 1985. The government introduced the transcript and rested. The defense called Lumumba, William Kunstler, a well-known lawyer with extensive experience as defense counsel in difficult eases, John C. Brittain, a professor of law with a distinguished record including the defense of black defendants in Mississippi in the early 1970’s, the Honorable Dalton Roberson, a judge of the Recorders Court of Wayne County, State of Michigan, Gloria House, a professor of humanities at Wayne State University, and Victor Goode, an instructor at the City University School of Law in Queens and a former national director of the National Conference of Black Lawyers. In addition, an affidavit of Lynne Stewart, a co-counsel with Lumumba in the Brinks case, submitted at the time of the prior sentencing, was introduced over the objection of the government, which was not provided an opportunity for cross-examination of the witness.

The Circumstances of the Trial

The Brinks case had received wide publicity and by virtue of the nature of the charges and the number of defendants, and the pretrial proceedings, it was anticipated to be a long and arduous trial. Because of information received by the government, the security of the witnesses and the trial process was of concern, and persons entering the courtroom were searched. Marshals were also present throughout the trial. Indeed, a system had been devised for the making of objections by pressing a button which would turn on a light at the bench. The system was never employed.

The pretrial proceedings had included an effort to disqualify Lumumba from serving as counsel to Sunni-Ali’s spouse and a denial of his application for compensation under the Criminal Justice Act. Lumumba, a member of the Michigan bar since 1976 and an experienced lawyer who has participated in some eighty criminal jury trials, was admitted pro hac vice.

Lumumba viewed the Brinks case as a political trial, which he and the witnesses he presented defined as a trial in which the defendants were charged as a consequence of their race, their political beliefs, and their associations, in addition to the more formal charges contained in the indictment. Both Lumumba and his client were supporters of the Republic of New Africa, (“RONA”), the tenets of which were considered in this court’s opinion of November 17, 1983. Lumumba had participated in other trials which he considered political, and at the time of the Brinks case was the Minister of Justice of RONA. He believed that his advocacy in such a case had to be vigilant, zealous, and active. Lumumba was the only black lawyer serving as defense counsel.

The First Contempt

On April 13, the first day of the trial, the court was conducting an individual voir dire of the jurors in the courtroom. The court had determined that for security reasons the names and addresses of the jurors would not be revealed. Lumumba entered the courtroom after the proceedings had commenced and observed from outside the well of the court until a recess was declared, after which he joined the counsel table. While Lumumba was observing from the back, an issue arose concerning press reports about the jury’s anonymity as a ground for disqualification. Jesse Berman, another defense counsel, rose to press the court on the subject, urging that all the jurors be questioned in greater detail on the subject. Berman’s objections were overruled, (Tr. at 832). Shortly thereafter, Lumumba joined other defense counsel at counsel’s table. (Tr. 849). Soon thereafter defense counsel Stern moved to challenge the entire panel, a motion that was denied. (Tr. 867).

Immediately thereafter, Lumumba rose and moved to discharge the entire jury panel, as had Stern. Id. Judge Duffy denied the oral motion, advising Lumumba to put the motion in writing and stating that the written motion would be made a part of the record. The court had required all defense counsel to adhere to this procedure, including the attorney who addressed the court immediately before Lumumba. Nonetheless, Lumumba persisted in his effort to make his motion orally. (Tr. 867-69). When Judge Duffy attempted to move on to the peremptory challenges, Lumumba accused him first of unwillingness to hear the defendants’ contentions and then of “tainting” and “polluting” the jury.

Shortly after those remarks, Lumumba addressed the court again, this time contending that Judge Duffy was precipitate in excusing a black prospective juror who stated she could not fairly and impartially decide the case, and claiming that the court’s prompt excusal of the juror was inconsistent with its handling of white veniremen. (Tr. 886-87). When the District Court noted that Lumumba had not been present for any of the preceding voir dire and ordered him to be seated and cease further argument, Lumumba refused and insisted he had other “appropriate” motions he wished to make immediately. The following interchange occurred:

THE COURT: Mr. Lumumba, sit down. Mr. Lumumba, I said sit down.
MR. LUMUMBA: I know your courtesy is a little better than that.
THE COURT: Sit down, Mr. Lumumba.
MR. LUMUMBA: That’s the way you give dogs and children instructions. I had some other motions I want to make at this time.
THE COURT: Sit down.
MR. LUMUMBA: You are denying my motion before you hear them?
THE COURT: Yes.
MR. LUMUMBA: Is that what you are doing?
THE COURT: I am telling you right now to sit down.
MR. LUMUMBA: Are you denying my motions before I make them?
THE COURT: I am not hearing motions right now.
MR. LUMUMBA: These are appropriate before the next juror comes in.
THE COURT: I’m not hearing them now.
MR. LUMUMBA: I have some appropriate motions I want you to hear before the next—
THE COURT: Now now.
MR. LUMUMBA: You can explain to me something I missed, why you operate this courtroom in such a fashion that you don’t even [hear] motions before you tell people summarily to sit down.
THE COURT: Sit down, Mr. Lumumba.
MR. LUMUMBA: That’s the way why you treat people in this courtroom as if they were children or animals? If I were to respond to you in some type of derogatory way, you would be offended.
THE COURT: Mr. Lumumba—
MR. LUMUMBA: Mr. Lumumba is appropriate. If you want to ask me to do something, you can say please or something like -that.
THE COURT: Sit down.
MR. LUMUMBA: When will we be able to hear motions? That’s the question at hand.
THE COURT: I will let you know.
MR. LUMUMBA: Can you let me know now?
THE COURT: No. You will have lots of time to prepare.
MR. LUMUMBA: Pardon?
THE COURT: You’ll have time to prepare.

Lumumba’s third disruption of the proceedings — which occasioned the initial contempt citation — also occurred during his first day in court. In direct contravention of Judge Duffy’s order that the District Court alone would conduct voir dire, Lumumba interrupted questioning of a prospective juror and attempted to continue an argument on an issue upon which the court had already ruled. Lumumba did not accede to the order of the court to sit down, and, in front of the venireman, again accused the court of being unwilling to listen to the defendants’ contention. In following terms Judge Duffy removed the venireman from the courtroom and held Lumumba in criminal contempt.

MR. LUMUMBA: Judge, we have to deal—
THE COURT: Mr. Lumumba, this is a court order, Mr. Lumumba, that I am making right now for you to be quiet and sit down.
MR. LUMUMBA: Well, judge, I’m pointing out—
THE COURT: If you disobey that order—
MR. LUMUMBA: Are you trying to put me under an order so you don’t have to deal with me?
THE COURT: Are you going to obey that order?
MR. LUMUMBA: Are you trying to hide an issue from this juror?
THE COURT: No. I am issuing an order for you to be quiet and sit down. Are you going to obey it or not?
MR. LUMUMBA: You won’t listen to us when the juror isn’t here, perhaps you’ll listen now.
THE COURT: Are you going to obey it or not?
MR. LUMUMBA: Judge, the question I am asking you—
THE COURT: Are you going to obey it or not, yes or no?
MR. LUMUMBA: There is a matter to be heard. You just heard two jurors—
THE COURT: I am telling you now to sit down and be quiet.
MR. LUMUMBA: The fact that they are—
THE COURT: Take the juror out, Mr. Clerk.

(Tr. 930-31)

The juror was removed and Lumumba held in contempt.

The Second Citation

Lumumba’s conduct continued to be disruptive, and the catalog of his comments includes statements that the trial judge made “snide comments” (Tr. 1614); that “the court’s collaboration with the prosecution [was] quite nauseating” (Tr. 2054); that the District Court had no respect for black people (Tr. 2283); that Judge Duffy was “an outstanding bigot” (Tr. 2284); that Judge Duffy might want to testify on behalf of the Government in lieu of an accomplice witness (Tr. 2386-87); that the court acted unfairly toward the defense by taking actions which were a “silly, sobbing, patronizing, condescending appeal to the press” (Tr. 2646-49); that the court made rulings which consistently favored the prosecution; and that the District Judge was a “hypocrite” and “a disgusting bigoted partial joke.” (Tr. 4774)

Lumumba in his defense of the contempt charge denied that these statements were disruptive and denied that they were intended to be disruptive. As to the suggestion that the District Judge might wish to testify for the government, Lumumba stated his disbelief that the statement was made in the form set forth in the transcript. He stated with respect to one of these statements that his intention was to “jolt the court” into recognizing what Lumumba considered to be prejudicial rulings.

Judge Duffy was not unaffected by this conduct, suggesting at one point that Lumumba should “look up in the books” (Tr. at 2281) why Judge Duffy had sustained certain objections. The following interchange with Lumumba has been cited as exemplifying the tensions between the bench and bar:

THE COURT: I will take the things the way I take them, Mr. Lumumba.
MR. LUMUMBA: I will call an ace an ace and a spade a spade so long as we understand each other.
THE COURT: Take a look at the buttons there, because quite shortly we are going to start using buttons and that is all there is to it.
MR. LUMUMBA: I don’t know what you think you are doing. You are trying to intimidate people. I am here trying a case where a man’s life is at stake. You don’t have enough little threats and intimidations to discourage me.
THE COURT: No threats or intimidations. I want to tell you something. My father used to tell me that you don’t reprimand the village idiot when he is looking for attention.

(Tr. 2390-91).

On June 8, 1983, Lumumba was engaged in cross-examination of a Federal Bureau of Investigation agent who had testified concerning his identification of the fingerprint of Lumumba’s client on a document. After an extensive cross-examination, Lumumba began to ask questions of the fingerprint expert about unrelated FBI investigations of various political organizations that had occurred years earlier, a subject area which the court had already ruled was not relevant to the case. Judge Duffy directed Lumumba to make an offer of proof outside of the presence of the jury. The following occurred:

MR. LUMUMBA: Okay, can I ask this question as an offer of proof? The jury is not around, Judge. You don’t have to worry about the jury finding out how the FBI treated the black liberation movement.
THE COURT: If that’s what we are getting into, it has no place in this trial.
MR. LUMUMBA: Why has it no place in this trial. You [sic] are here prosecuting the black liberation movement. It has nothing to do with the way your government treated us in the past, right? It’s insane.
THE COURT: Tell me what you are attempting to prove.
BY MR. LUMUMBA:
Q. Have you—
THE COURT: Step down, Mr. Spriggle, and step outside. Tell me what you are trying to prove.
MR. LUMUMBA: Fine. Let him go. Wait until he leaves. I don’t want him to hear it anyway because he will probably lie.
(Witness left the courtroom)
MR. LUMUMBA: The thing is that it is my belief that the document which is being entered into evidence, which you accepted into evidence for whatever reason, it doesn’t talk about Brinks robberies or anything else, is a document which is totally consistent with documents which have pervaded the black liberation struggle since the time that the FBI has started killing different people in the movement, since the time that there was a manifest need for security, since the time that the black liberation movement has been paroling [sic] in communities trying to stop crime and therefore have had necessity for rules of this nature.
That being the case, I would like to point out through the specific document which you have suggested cannot come into evidence, which is almost identical in parts to this document, and through his knowledge of the documents which he may have examined, having been a person who has been in the FBI for 26 years during the period of time in which they have examined the whole files, the total files of various different movements, he can tell us that the principles in this document are not inconsistent with many of those other principles which come from groups which clearly had nothing to do with robbing Brinks trucks and were totally overground political formations which were functioning in a way which was legal even by corrupt laws of the United States.
So that point I am trying to make here is this, that if they are allowed to issue a document which has prejudicial impact if not explained, then I have a right to go into it and to explain it through this witness. That’s one point.
Another point is I would like some kind of ruling on why you won’t let me do what you let them do and then have the audacity to sit on the bench and claim you are fair.
THE COURT: Look Mr. Lumumba, you have been held in contempt more than once and you are held in contempt again.

(Tr. 4822-24). According to Lumumba, the evidence he sought to introduce related to the findings of Senator Church’s Committee with respect to the counter-intelligence activities of the FBI.

Conclusions

This proceeding presents in quite stark terms the painful dilemma which on occasion confronts judges and lawyers when a clash occurs between what the judge perceives is the need for orderly procedure and the lawyer believes is effective advocacy. These clashes become sharper and more difficult in cases which receive a great detail of public attention, as did the Brinks ease. The difficulty is enhanced by the need for quick and resolute action, whether by the court or the attorney, at the moment of decision and by occasional confusion created by reviewing courts as they consider the nature of summary contempt. This proceeding exemplifies with painful precision the problems encountered.

The Court of Appeals in its reversal appeared to base its actions on Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1973), and indeed its opinion reflected the Taylor language. However, unlike the situation in Taylor, the defendant here had received notice of the contempt conviction and been given an opportunity to be heard to present mitigating factors before punishment was imposed. Notwithstanding, the conviction here was reversed presumably for a Taylor type hearing (something “less than a full blown trial”) although such a hearing had already taken place as set forth above.

It is unavoidable, as a consequence of the reversal, however, that I must now review Judge Duffy’s findings of contempt, de novo, and try Lumumba on a charge of contempt found to have been committed by one of my brother trial judges. Were I to state that I have totally disregarded Judge Duffy’s conclusions, such a statement would not be credible. I have, however, sought to view the issue as best I can solely from the written record and the testimony presented to me.

For whatever it is worth, the difficulty stemmed from differing perceptions of the trial, its purpose, and the limits of advocacy. Lumumba sought to confront what he believed to be the political implications of the trial, and Judge Duffy sought to eliminate such implications. However, political conviction cannot serve to cloak the abusive and improper conduct of an advocate and an officer of the court from sanction.

The testimony presented to me focused in some detail upon actual disruption and Lumumba’s intent, or lack thereof, to disrupt, thus advancing the defense that a charge of contempt is warranted only when there is a delay in the proceeding or some physical disruption. As every participant in the trial process knows, there is a delicate and occasionally exquisite balance between orderly administration of justice and the damage caused by the untrammelled discharge of emotion. There is, and must be, a line between forceful advocacy and judge-baiting, and Lumumba went over that line.

The first contempt was a direct disobedience of an appropriate order at the very beginning of what was anticipated and proved to be, a difficult, publicized trial. Lumumba’s conduct was not necessary to preserve the point for appellate review. The issue had been considered and ruled upon, no new matter was advanced, a prospective juror was present, and the pace of the proceeding had to be established. Lumumba's refusal to obey the court’s direction was contumacious.

The second contempt presents a far more subtle misconduct. The jury was not present, and an offer of proof was being made on the subject of FBI activity, the relevance of which the court had already ruled on. Lumumba had previously made violent, verbal attacks upon Judge Duffy, already set forth above. Against these comments, the request:

... I would like some kind of ruling on why you won’t let me do what you let them do and then have the audacity to sit on the bench and claim you are fair

constituted a challenge to the court that was contemptuous.

It is true that “[T]he law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate.” In Re Little, 404 U.S. 553, 555, 92 S.Ct. 659, 660, 30 L.Ed.2d 708 (1972), quoting Craig v. Harney, 331 U.S. 367, 376, 67 S.Ct. 1249, 1255, 91 L.Ed. 1546 (1947). Nonetheless, there is an objective standard of respect that must be met for the system to survive. Direct and unceasing challenges in open court to the integrity of the judicial process, made without foundation, are an appropriate subject for contempt. As long as society seeks justice through open and public trials, all concerned must comply with an objective standard of propriety to permit the process to function and to earn respect for its function. As a reality and as a matter of precedent judges must protect the justice system which they serve by enforcing an appropriate standard of conduct. Lumumba’s statements, like wearing a clown’s suit to court, breached that standard. On the second occasion he was also contemptuous.

As to the procedure followed by Judge Duffy, I continue to believe that this remand was not necessary, and that it was appropriate for Judge Duffy to find Lumumba in summary contempt and that all that was required to meet due process requirements was a hearing prior to sentence, which hearing was accorded. Taylor v. Hayes, 418 U.S. 488, 498-99, 94 S.Ct. 2697, 2703, 41 L.Ed.2d 897 (1974); Weiss v. Burr, 484 F.2d 973 (9th Cir.1973); United States v. Galante, 298 F.2d 72, 76 (2d Cir.1962) (Friendly, J., concurring and dissenting).

Judgment of conviction will be entered. Sentencing will take place on March 13, 1985 at 9:15 a.m. or at such other time as will suit the convenience of the parties and counsel.

IT IS SO ORDERED.


source: Caselaw Access Project

author: WILLIAM C. LEE, District Judge.

license: Public Domain

text:
    Robert H. MITCHELL, Plaintiff, v. BENDIX CORPORATION, Defendant.
    Civ. No. F 84-376.
    United States District Court, N.D. Indiana, Fort Wayne Division.
    Feb. 21, 1985.

      John M. Beams, Fort Wayne, Ind., for plaintiff.
    J. Michael O’Hara, Barrett, Barrett & McNagny, Fort Wayne, Ind., for defendant.
   ORDER

WILLIAM C. LEE, District Judge.

This matter is before the court on defendant’s Motion to Strike and plaintiff’s Motion for Partial Judgment on the Pleadings. These motions both revolve around the competency of a paragraph in plaintiff’s complaint which alleges the determination of a state administrative review of plaintiff’s claim. For the following reasons, the defendant’s motion to strike will be granted, and the plaintiff’s motion for judgment on the pleadings shall be denied.

Plaintiff has filed his complaint pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., alleging that he was discharged from his employment with defendant on the basis of his race. In paragraph 17 of his complaint, plaintiff related the results of a hearing held before the Indiana Employment Security Division which ultimately found that plaintiff had been discharged “but not for proven just cause within the meaning of Chapter 15, Section 1 of the Indiana Employment Security Act.” Defendant filed a motion to strike this paragraph of the complaint, arguing that such administrative proceedings and findings are without effect in a federal Title VII action. Plaintiff responded by opposing the motion to strike and filing a motion for judgment on the pleadings, arguing that the state administrative agency’s findings should be given collateral effect in this action. Thus, these two motions are necessarily intertwined with each other, and resolution of the issue of the applicability of the state agency’s determination will decide both motions.

Rule 12(f) of the Federal Rules of Civil Procedure governs motions to strike. It states:

Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion by a party within twenty days after the service of the pleading upon him or upon the court’s own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.

Rule 12(f) motions are disfavored and are ordinarily not granted unless the language in the pleading at issue has no possible relation to the controversy and is clearly prejudicial. Morrow v. South, 540 F.Supp. 1104 (S.D.Ohio 1982); Lirtzman v. Spiegel, Inc., 493 F.Supp. 1029 (N.D.Ill.1980); 5 Wright & Miller, Federal Practice and Procedure § 1380 (1969).

Defendant’s argument for its motion to strike is that a state administrative agency’s findings has no binding effect upon a federal Title VII action, and therefore the allegations of paragraph 17 are irrelevant. Both plaintiff and defendant have argued that the United States Supreme Court’s decision in Kremer v. Chemical Construction Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982), controls this case and supports each side. In Kremer, the Supreme Court held that a district court was required, pursuant to the full faith and credit provisions of 28 U.S.C. § 1738, to give preclusive effect to a state court decision upholding a state administrative agency’s rejection of an employment discrimination claim. Plaintiff attempts to argue that the administrative decision at issue in this case falls within the purview of Kremer by arguing that the decision of the administrative referee has all of the trappings of a state court determination and is therefore entitled to have a res judicata effect. He argues specifically that Indiana law considers the decision of a review board conclusive and binding as to all questions of fact, see I.C. 22-4-17-12, and that defendant’s failure to appeal the decision to an Indiana appellate court means that a state court would have upheld the administrative referee’s conclusions of fact and law. The court finds this argument unpersuasive.

Because the defendant did not appeal this state administrative decision to a state court, the issue here is whether a federal court is bound by an unreviewed state administrative agency decision under the principles of Kremer. The Kremer Court itself answered this question in footnote 7:

EEOC review of discrimination charges previously rejected by state agencies would be pointless if the federal courts were bound by such agency decisions. Batiste v. Furnco Construction Corp., 503 F.2d 447, 450 n. 1 (7th Cir.1974), cert. denied, 420 U.S. 928, 95 S.Ct. 1127 [43 L.Ed.2d 399] (1975). Nor is it plausible to suggest that Congress intended federal courts to be bound further by state administrative decisions than by decisions of the EEOC. Since it is settled that decisions by the EEOC do not preclude a trial de novo in federal court, it is clear that unreviewed administrative determinations by state agencies also should not preclude such review even if such a decision were to be afforded preclusive effect in a state’s own courts.

456 U.S. at 470,102 S.Ct. at 1891 (emphasis added). See also Garner v. Giarrusso, 571 F.2d 1330 (5th Cir.1978); Cooper v. Phillip Morris, Inc., 464 F.2d 9 (6th Cir.1972); Voutsis v. Union Carbide Corp., 452 F.2d 889 (2d Cir.1971), cert. denied, 406 U.S. 918, 92 S.Ct. 1768, 32 L.Ed.2d 117 (1972). Plaintiff’s arguments that a state court would have treated the findings of fact by the administrative referee as conclusive had defendant taken an appeal are unpersuasive, because the Supreme Court specifically held that “no provision of Title VII requires claimants to pursue in state court an unfavorable state administrative action....” Kremer, 456 U.S. at 469, 102 S.Ct. at 1891. In the one reported case after Kremer which involved a state administrative determination without a review by a state court, the federal district court for the District of Nevada held that the state administrative agency decision was not entitled to res judicata or collateral estoppel and that a de novo trial in federal court was not precluded even though the decision would have been afforded preclusive effect in the state’s own court. Snow v. Nevada Dept. of Prisons, 543 F.Supp. 752, 755 (D.Nev.1982). See also Chatelain v. Mount Sinai Hospital, 580 F.Supp. 1414, 1416-17 (S.D.N.Y.1984).

The language of Kremer and the Snow decision both indicate that the defendant’s position here is correct. The state administrative agency finding as to plaintiff’s dismissal has no preclusive effect upon this court. The allegations of paragraph 17 concerning the findings of the administrative referee are therefore irrelevant to this cause of action. Under the principles of Rule 12(f), defendant would be entitled to have those allegations stricken from the complaint. Further, the resolution of this issue in favor of the defendant necessitates a denial of the motion for a judgment on the pleadings.

Finally, the court acknowledges plaintiff’s motion to strike certain parts of paragraphs 6, 7 and 9 of defendant’s answer. Contrary to the assertions in the motion, the justification for this motion has not been discussed in any memorandum filed in this case. Without such supporting argumentation, the court finds this motion unintelligible and will therefore deny it.

For the above stated reasons, the court hereby GRANTS the defendant’s Motion to Strike the allegations of paragraph 17, and DENIES the plaintiff’s Motion for Judgment on the Pleadings. The plaintiff’s Motion to Strike paragraphs 6, 7 and 9 of the answer is also hereby DENIED.


text:
    ALLY & GARGANO, INC., Plaintiff, v. COMPREHENSIVE ACCOUNTING CORP., Defendant.
    84 Civ. 7928 (RWS).
    United States District Court, S.D. New York.
    Feb. 22, 1985.
    As Amended March 11, 1985.
    Davis & Gilbert, New York City, for plaintiff.
    Burke & Burke, New York City, for defendant; Michael A. McElroy, Robert J. Marvin, New York City, of counsel.
   OPINION

SWEET, District Judge.

This action arises out of the alleged breach of a written agreement between plaintiff Ally & Gargano, Inc. (“Ally”) and defendant Comprehensive Accounting Corp. (“Comprehensive”). Comprehensive now moves to dismiss this action on the ground that it is not subject to the in personam jurisdiction of this court. The motion is denied.

Facts

Comprehensive is a Delaware corporation with its principal corporate office in Aurora, Illinois. Comprehensive is not qualified to do business in the State of New York; it does not maintain an office in New York; it has no employees in New York, no bank accounts in New York and no telephone listing in New York. Comprehensive is in the business of licensing to accountants (“Franchisees”) its service name, service marks and know-how regarding the operation of an accounting practice. Currently, Comprehensive has approximately 450 Franchisees operating in forty states of the United States, of which fourteen are located in New York State. To sell its franchises, Comprehensive advertises its services and those of its Franchisees nationwide through various media including newspapers, magazines, direct mail solicitation, telephone solicitation and network television commercials. While Comprehensive employees on occasion meet with potential Franchisees at their places of business, these employees have no authority to bind Comprehensive. No franchise agreements are accepted or executed by Comprehensive in any location other than its offices in Aurora, Illinois.

Comprehensive asserts that its contact with New York is limited to the following:

Advertising for, and direct solicitation of, potential Franchisees and clients for existing Franchisees in New York as part of its nationwide activities described above;
occasional trips to New York to consult with Franchisees at their request, at the average of approximately one per year; conducting one or two regional seminars for groups of Franchisees in the New York area annually; and participating in trade shows in New York at the average of approximately two per year.

On June 3, 1981 Comprehensive entered into an agreement (the “agreement”) with the New York advertising firm of Ally & Gargano under which Ally agreed to serve as Comprehensive’s advertising agency. One month prior to this retention, representatives of Comprehensive who were in New York for an accounting trade show attended a preliminary presentation at the offices of Ally which was designed to introduce Comprehensive to Ally and give them a sense of what Ally could do for Comprehensive. The terms of the agreement were negotiated either in Aurora, Illinois or by telephone and correspondence between Ally’s New York office and Comprehensive’s Illinois office. The agreement was executed by both Comprehensive and Ally on June 3, 1981 in Aurora, Illinois. After additional telephonic negotiation, an amended agreement (the “amended agreement”) was executed by Ally in New York on July 13 and by Comprehensive in Illinois on July 17.

In fulfillment of the agreement, Ally developed various television advertising programs which were submitted by Ally to Comprehensive for review and approval. Comprehensive transmitted its approval by letter. Comprehensive also prepared various advertisements which were mailed to Ally for placement in periodicals. Comprehensive has had occasional meetings in New York with representatives of Ally for the purpose of developing advertisements to be produced by Ally.

Discussion

N.Y.C.P.L.R. § 301 provides that New York courts may exercise jurisdiction over a foreign corporation if the foreign corporation is engaged in such a continuous and systematic course of doing business in New York as to warrant a finding of its “presence” here. Dogan v. Harbert Const. Corp., 507 F.Supp. 254 (S.D.N.Y. 1980); McGowan v. Smith, 52 N.Y.2d 268, 437 N.Y.S.2d 643, 419 N.E.2d 321 (1981). The totality of a foreign corporation’s contacts with the jurisdiction must be examined to determine whether it is doing business, in New York, and the decision in each case will depend on the particular facts of the case. McIntyre v. Bakers for Democratic Union, 54 App.Div.2d 872, 388 N.Y.S.2d 587 (1976). Mere solicitation without any other evidence of commercial activity within New York is not sufficient to establish presence. Miller v. Surf Properties, 4 N.Y.2d 475, 176 N.Y.S.2d 318, 151 N.E.2d 874 (1958). In addition, a plaintiff who is the agent of a defendant cannot rely on its own activities in New York to sustain a claim of jurisdiction. Haar v. Armedoris Corp., 31 N.Y.2d 1040, 342 N.Y.S.2d 70, 294 N.E.2d 855 (1973). Similarly, the activities of a foreign corporation’s franchises in New York cannot be relied upon to establish jurisdiction over the franchisor. Delagi v. Volkswagenwerk Ag of Wolfsburg, 29 N.Y.2d 426, 328 N.Y.S.2d 653, 278 N.E.2d 895 (1972); see also J.E.T. Advertising Associates v. Lawn King, Inc., 84 App.Div.2d 744, 443 N.Y.S.2d 745 (2d Dep’t 1981).

The facts presented in this case demonstrate that Comprehensive is doing business in New York in a manner sufficient to satisfy the requirements of § 301. Comprehensive regularly solicits potential franchises and prepares advertising for existing franchises in New York. While a foreign corporation may not be held present in New York solely on the basis of its control over its New York franchises, Delagi v. Volkswagenwerk Ag. of Wolfsberg, supra, 328 N.Y.S. at 657, 278 N.E.2d at 897, in this case Comprehensive actively engaged in business in New York designed to service its franchisees. Its representatives travel to New York to consult with the fourteen franchisees it has in New York, and it conducts regional seminars and attends trade shows in New York. Its representatives travelled to New York to consult with Ally about and participate in the creation of advertising developed as a service to both its New York franchisees and its franchisees elsewhere. Although Ally’s activities in New York as Comprehensive’s agent cannot be relied upon to establish long-arm jurisdiction, Comprehensive’s own activities in New York, including its visits to consult with Ally, can be considered as a factor. See Katz Communications, Inc. v. Evening News Association, 705 F.2d 20, 25 (2d Cir.1983); Adam Young, Inc. v. F & S Comm. News, Inc., slip op. 83 Civ. 7278 (S.D.N.Y. May 25, 1984). Because Comprehensive is engaged in both solicitation plus commercial dealings in New York on a regular basis, it is doing business in New York “not occasionally or casually but with a fair measure of performance and continuity.” Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 267, 115 N.E. 915 (1917).

Because Comprehensive meets the test of doing business in New York, it is subject to personal jurisdiction in New York and there is, therefore, no need to resolve the issue of whether Comprehensive would be subject to the jurisdiction of New York on the basis of N.Y.C.P.L.R. § 302(a).

For the above reasons, Comprehensive’s motion to dismiss is denied.

IT IS SO ORDERED.


author: LUONGO, Chief Judge.

text:
    TIMCO ENGINEERING, INC. and Timco (HK), Ltd. v. REX & COMPANY, INC., Decora Industries, Inc., Data Display, Feoso Express, Ltd., Flying Tiger Airlines, Japan Airlines, Inc., Maersk Lines (Hong Kong) Ltd., R.G. Hobelmann & Company, Inc., Delta Airlines, Philadelphia National Bank, American President Lakes, Ltd., I.T.O. Corporation of Ameriport, Electro-Circuits, Inc.
    Civ. A. No. 83-1914.
    United States District Court, E.D. Pennsylvania.
    Feb. 25, 1985.

      Nicholas J. Lisi, Solo, Padova & Lisi, Philadelphia, Pa., for plaintiffs.
    Carl H. Delacato, Jr., Hecker, Rainer & Brown, Philadelphia, Pa., for defendant R.G. Hobelmann & Co., Inc.
    Francis J. Deasey, Deasey, Scanlan & Bender, Philadelphia, Pa., for defendant I.T.O. Corp. of Ameriport.
   OPINION

LUONGO, Chief Judge.

In this lawsuit, Timco Engineering, Inc. and Timco (HK) Ltd. (Timco) seek recovery of the price of several shipments of goods sold to Decora Industries, Inc. (Decora) and Data Display. Named as defendants are Decora, Data Display, and several corporations variously involved with the transportation of the goods or the transmittal of relevant documentation. Now before me are the motions of defendant I.T.O. Corporation of Ameriport (I.T.O.) for summary judgment or partial summary judgment, and of defendant R.G. Hobelmann & Company, Inc. (Hobelmann) for summary judgment. For the reasons that follow, I will grant the motions of I.T.O. and Hobelmann for summary judgment.

As recounted in Timco’s complaint, this case arises from purchases by Decora and Data Display of five parcels of goods from Timco’s Hong Kong offices. The purchases were independently concluded and their delivery separately arranged. For purposes of this opinion, I will adopt the parties’ reference to the transactions as “Goods I, II, III, IV, and V.”

I. Timco v. I.T.O.

A. Background

Timco’s claim against I.T.O. stems from I.T.O.’s involvement with Goods IV. Goods IV were shipped by sea to Philadelphia via Maersk Lines (Hong Kong) Ltd. At the port of Philadelphia, Maersk engaged I.T.O., a stevedore, to unload cargo which included Timco’s parcel.

Timco alleges that both Maersk and I.T.O. contracted to deliver the goods to the Philadelphia National Bank. On or about June 21,1980, however, I.T.O. delivered the goods to an unnamed trucking company that delivered the goods to Decora and Data Display rather than to the bank. Claiming that Maersk and I.T.O. breached or negligently performed their contracts, Timco seeks recovery of the price of Goods IV and other relief from I.T.O. and Maersk, jointly and severally.

I.T.O.’s motion for summary judgment attacks Timco’s claim as time-barred under statutory and contractual provisions. This suit was filed on April 21, 1983, almost three years after the delivery of Goods IV. I.T.O. argues that the applicable bill of lading extends the one year statute of limitations in the Carriage of Goods by Sea Act (COGSA) to a stevedore acting under contract with the shipper. Alternatively, I.T.O. argues that the bill of lading itself establishes a one year limitations period for suits due to loss or damage of goods.

Timco’s response to the motion is twofold: Timco argues that neither the COG-SA limitations period nor the contractual time-bar apply in a case of alleged misdelivery. Alternatively, Timco contends that the bill of lading did not extend the one year limitations period to stevedores with sufficient clarity.

B. Discussion

I.T.O. concedes, as it must, that COGSA does not, by its own terms, impose a one year statute of limitations on suits against stevedores. This much is made clear by the Supreme Court’s decision in Robert C. Herd & Co., Inc. v. Krawill Machinery Corp., 359 U.S. 297, 79 S.Ct. 766, 3 L.Ed.2d 820 (1959), a case in which the Court rejected a stevedore’s assertion of COGSA’s $500 per package limitation of liability. I.T.O.’s claim that a one year limitations period applies, therefore, depends on whether the bill of lading incorporates with respect to stevedores either the COGSA limitations period or an independent limitation on time for suit.

After careful consideration of the applicable bill of lading, I conclude that 1. T.O. is entitled to invoke a one year limitations period. Primarily, the bill of lading expressly makes applicable the provisions of COGSA, and it expressly extends to stevedores those statutory and contractual limitations and exonerations from liability that would be available to the carrier. Indeed, the bill of lading includes a time for suit clause virtually identical to that provided by COGSA.

I recognize that the courts have required a clear expression of intent to extend COGSA’s protections to stevedores. Robert C. Herd & Co., Inc., supra; PPG Industries, Inc. v. Ashland Oil Company — Thomas Petroleum Transit Division, 527 F.2d 502 (3d Cir.1975); DeLaval Turbine, Inc. v. West India Industries, Inc., 502 F.2d 259 (3d Cir.1974). But where, as here, a Himalaya clause, plainly grants stevedores those protections accorded carriers, the courts will uphold such a clause. See, e.g., B. Elliott (Canada) Ltd. v. John T. Clark & Son of Maryland, Inc., 704 F.2d 1305 (4th Cir.1983); Tessler Brothers (B.C.) Ltd. v. Italpacific Line, 494 F.2d 438 (9th Cir.1974) (limitation of liability to $500 per package).

Alternatively, I conclude that the bill of lading independently imposes a one year time bar on suits against the stevedore. I.T.O. did not have an independent contract with Timco, thus whatever contractual liability I.T.O. owes to Timco arose from Timco’s contract with Maersk. As noted above, the bill of lading includes a time for suit provision nearly identical to COGSA’s. Given the bill of lading’s express extension of contractual protections to stevedores, it is clear that the contracted limitations period bars Timco’s claim against I.T.O.

Timco’s argument that the one year limitations period should not apply to suits for misdelivery is not persuasive. Although the bill of lading did not require the carrier (or the stevedore as its agent) to deliver Timco’s cargo to any location beyond the dock, absent a valid agreement to the contrary the carrier is bound to discharge Timco’s cargo properly. Leather’s Best, Inc. v. S.S. Mormaclynx, 451 F.2d 800 (2d Cir.1971); David Crystal, Inc. v. Cunard Steam-Ship Co., Ltd., 339 F.2d 295 (2d Cir.1964), cert. denied, 380 U.S. 976, 85 S.Ct. 1339, 14 L.Ed.2d 271 (1965); Bank of California, N.A. v. International Mercantile Marine Co., 64 F.2d 97 (2d Cir.), cert. denied, 290 U.S. 649, 54 S.Ct. 66, 78 L.Ed.2d 563 (1933); Morse Electro Products Corp. v. S.S. Great Peace, 437 F.Supp. 474 (D.N.J.1977). The risk of misdelivery is thus a risk against which Timco was protected under COGSA and the bill of lading. Therefore, accepting arguendo Timco’s apparent premise that the limitations period should govern only suits with respect to duties specified by COGSA or the bill of lading, I conclude that a suit for misdelivery is such an action, and that the one year limitations period applies.

II. Timco v. R.G. Hobelmann & Co., Inc.

A. Background

R.G. Hobelmann & Co., Inc. is a customs house broker, a company that assists in the clearance of imported goods through United States Customs in Philadelphia. Hobelmann’s connection with this case arose from its employment by Decora and Data Display for the purpose of clearing Goods I, II, and III, through Customs. It is alleged that employees of Hobelmann intentionally made material misrepresentations to agents of Rex & Company, Inc. while Rex had possession of the goods, and that such misrepresentations induced Rex to deliver the goods to unnamed trucking companies that delivered the goods to Decora and Data Display. Timco’s claim against Hobelmann is one for common law fraud.

Hobelmann’s motion for summary judgment proceeds on three bases. Hobelmann contends that this court lacks subject matter jurisdiction over this lawsuit, that Tim-co’s claims are barred by the statute of limitations, and that Timco’s complaint fails to state a claim upon which relief can be granted. Hobelmann’s jurisdictional challenge relates to the citizenship of two parties: plaintiff Timco (HK) Ltd. and defendant Feoso Express, Ltd. are incorporated under the laws of Hong Kong. Timco claims that such common citizenship destroys complete diversity. Hobelmann’s statute of limitations argument rests on Pennsylvania’s two-year time bar for suits for “taking, detaining or injuring personal property.” 42 Pa. C.S.A. § 5524(3). Since this action was commenced almost three years after the transactions at issue, Hobelmann asserts that application of the appropriate limitations period would bar Tim-co’s claim. Finally, Hobelmann’s contention that Timco has failed to state a cognizable claim is based on its sworn assertion that its employees simply processed the goods through customs, and that its function did not include the responsibility — or power — to transfer title to the goods.

B. Discussion

I am satisfied that diversity jurisdiction is present in this case. The relevant jurisdictional statute is 28 U.S.C. § 1332(a)(3), which provides:

The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and is between—
. . . . .
citizens of different States and in which citizens or subjects of a foreign state are additional parties____

In the case at bar, plaintiff Timco Engineering, Inc. is incorporated and has its principal place of business in Florida, and all the defendants except Feoso Express, Ltd. of Hong Kong are citizens of different states. The presence of foreign citizens as additional plaintiffs and defendants does not destroy diversity under 28 U.S.C. § 1332(a)(3). Samincorp, Inc. v. Southwire Company, Inc., 531 F.Supp. 1 (N.D. Ga.1980); K & H Business Consultants Ltd. v. Cheltonian, Ltd., 567 F.Supp. 420 (D.N.J.1983). See also 13B C. Wright, A. Miller, and E. Cooper, Federal Practice and Procedure § 3604 at 390-91 (2d ed. 1984). Thus, complete diversity exists.

Out of an abundance of caution, however, I will accede to Timco’s suggestion that I drop Feoso as a party defendant. It is, of course, well established that district courts have discretion to drop non-essential, non-diverse parties in order to preserve diversity jurisdiction. Field v. Volkswagenwerk AG, 626 F.2d 293, 296 (3d Cir. 1980); Riverside Memorial Mausoleum, Inc. v. UMET Trust, 581 F.2d 62 (3d Cir. 1978). This is particularly appropriate in the case at bar because Feoso has yet to be served, and the suit has proceeded in its absence without objection. Feoso, therefore, can scarcely be called an indispensable party, and its dismissal will eliminate a jurisdictional issue not yet definitively resolved by the appellate courts.

Turning now to Hobelmann’s statute of limitations argument, it is apparent that Timco’s claim is not time-barred only if it states a cause of action for common law fraud since Timco has not disputed that Pennsylvania’s two-year time bar would preclude claims based on simple negligence. To decide whether Timco’s action against Hobelmann is timely, therefore, I must resolve Hobelmann’s contention that it is entitled to summary judgment on Tim-co’s fraud claim.

Under Pennsylvania law, the elements of a cause of action for fraud include: “(1) a misrepresentation, (2) a fraudulent utterance thereof, (3) an intention by the maker that the recipient will thereby be induced to act, (4) justifiable reliance by the recipient upon the misrepresentation and (5) damage to the recipient as the proximate result.” Neuman v. Corn Exchange National Bank and Trust Company, 356 Pa. 442, 450, 51 A.2d 759, 763 (1947).

After careful consideration of the current record, I conclude that Hobelmann’s motion for summary judgment must be granted. In response to an affidavit from a vice president of Hobelmann stating that Hobelmann’s function as customs broker does not include arranging the transfer of title to imported goods, Timco has produced only the answers to interrogatories from an employee of Rex & Company which state that an employee of Hobelmann advised Rex to release the goods. Conspicuously absent from this response is any suggestion that an employee of Hobelmann made any representations as to the legal ownership of goods held by Rex, or as to Rex’ duty to discharge the goods other than as directed by the applicable contract.

Moreover, even were I to accept Rex’ vague responses as an allegation that Hobelmann misrepresented ownership of the goods in question, I could not accept that such representations could be the basis for justifiable reliance by the recipient. If, indeed, Rex turned over Goods I, II and III to the ultimate purchaser at the oral direction of a customs house broker, and without authorization from the bank to which the goods were to be delivered, Rex’ conduct was clearly unreasonable, and Hobelmann’s misstatement cannot be deemed the cause of Timco’s loss. In short, I conclude that Timco’s claims against Hobelmann are barred by the statute of limitations except insofar as Timco alleges fraud, but that Hobelmann is entitled to summary judgment on the merits of the fraud claim.

_

      . At oral argument, I.T.O. also argued that Pennsylvania’s two-year statute of limitations, 42 Pa. C.S.A. § 5524, would bar this suit if COGSA were ruled inapplicable.

      . The bill of lading states:
      "This Bill of Lading shall have effect subject to the provisions of the ‘Carriage of Goods by Sea Act 1936’ (‘COGSA’) of the United States of America in respect of carriage of goods from ports in the United States. Otherwise this Bill of Lading shall have effect subject to the provisions of the Hague Rules contained in the International Convention for Unification of certain Rules relating to Bills of Lading, dated Brussels, August 25, 1924, as enacted in the country of shipment, or the said Hague Rules as amended by Protocol signed at Brussels on the 23rd February, 1968 (the Hague Visby Rules), or if no such enactment is compulsorily applicable, the provisions of said convention in its unamended form shall apply. If any provision of this Bill of Lading be invalid under COGSA or any other law that is compulsorily applicable, such provision shall, to the extent of such invalidity, but no further, be null and void.”

      . Paragraph 3(2) of the bill of lading states in part:
      "[EJvery such servant, agent, stevedore and sub-contractor shall have the benefit of all provisions herein benefitting the Carrier as if such provisions were expressly for their benefit, and all limitations of and exonerations from liability provided to the Carrier by law and by the terms hereof shall be available to them, and, in entering into this contract the Carrier, to the extent of those provisions, does so not only on its own behalf, but also as agent and trustee for such servants, agents, stevedores and sub-contractors.”

      . The bill states:
      "In any event, the Carrier shall be discharged from any liability unless suit is brought within one year after delivery of the goods or the date when the Goods should have been delivered.”

      . See Brown & Root, Inc. v. M/V Peisander, 648 F.2d 415, 417 & n. 5 (5th Cir.1981).

      . Supra, note 4.

      . Timco’s complaint also alleges that Hobelmann participated in the Goods IV transaction, but at oral argument Timco withdrew its complaint against Hobelmann with respect to Goods IV.

      . Although not raised by any party, I note that the presence of plaintiff Timco (HK) Ltd. raises a jurisdictional problem. Although 28 U.S.C. § 1332(a)(3) extends jurisdiction to actions in which citizens of foreign states are additional parties, it is uncertain whether Hong Kong is a "foreign state” within the meaning of that provision. At least one court has ruled that Hong Kong is not a foreign state for purposes of § 1332(a)(2). Windert Watch Co., Inc. v. Remex Electronics Limited, 468 F.Supp. 1242 (S.D.N.Y. 1979). The Windert decision does not, however, represent an unchallenged view of Hong Kong’s status. For example, in Tetra Finance (HK) Limited v. Shaheen, 584 F.Supp. 847 (S.D.N.Y. 1984), the court, in dictum, suggested that the realities of modern commercial and cultural life as well as extensive American investment in Hong Kong militate strongly in favor of a finding that Hong Kong is a foreign state for purposes of § 1332(a)(2). I find the reasoning of the Tetra Finance court persuasive, and I will hold that, at least for purposes of § 1332(a)(3), the presence of a Hong Kong citizen as a plaintiff in a suit between otherwise diverse United States citizens does not deprive this court of subject matter jurisdiction.

      . Significantly, Hobelmann has not argued that the fraud claim is barred by the statute of limitations. A division of opinion currently exists within this district on the proper limitations period to be applied to common law fraud claims under Pennsylvania law. In Fickinger v. C.I. Planning Corporation, 556 F.Supp. 434 (E.D.Pa.1982), Judge Shapiro interpreted the revised Judicial Code to require application of a two year time bar to common law fraud claims. In Eisenberg v. Gagnon, 564 F.Supp. 1347 (E.D.Pa. 1983), however, Judge Weiner concluded that the Third Circuit’s decision in Sharp v. Coopers & Lybrand, 649 F.2d 175 (3d Cir.1981), cert. denied, 455 U.S. 938, 102 S.Ct. 1427, 71 L.Ed.2d 648 (1982), required utilization of a six year time bar. Although I need not presently decide which approach is more persuasive, I note in passing that a recent amendment to the Judicial Code specifies a two year limitations period for tort claims such as "deceit or fraud" that arise after the date of enactment of the amendment. 42 Pa.C.S.A. § 5524(7) (1982).


author: SOFAER, District Judge:

text:
    Joseph ARANCIBIA, Plaintiff, v. Arthur BERRY, Thomas McGoldrick, and the City of New York, Defendants.
    No. 82 Civ. 5539 (ADS).
    United States District Court, S.D. New York.
    Feb. 25, 1985.

      Guy L. Heinemann, New York City, for plaintiff.
    Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City (Lori S. Josephs, Brooklyn, N.Y., of counsel), for defendant City of New York.
   MEMORANDUM AND ORDER

SOFAER, District Judge:

Plaintiff, Joseph Arancibia, brought this action for damages pursuant to 42 U.S.C. § 1983 (1982) and New York state law. He alleges that on May 23, 1981 defendants Berry and McGoldrick, who were then New York City police officers, seized him without probable cause and severely beat him. He also alleges that two other police officers who were called to the scene refused to take him to the hospital unless he promised not to report the conduct of defendants Berry and McGoldrick. These allegations are substantiated to some degree by the results of disciplinary proceedings undertaken by the Police Department (“Department”). After a hearing conducted on March 9-10, 1983, the Assistant Commissioner for Trials, Bruce E. Fogarty, issued an opinion on September 22, 1983. He found Arancibia’s account of his ordeal “truthful,” Opinion at 20 (Heinemann Affidavit, Apr. 24, 1984, Exh. A), and recommended that the two officers be dismissed from the police force. Id. at 23. This recommendation was adopted by Commissioner Maguire, and Berry and McGoldrick were dismissed on October 28, 1983.

In 1984, defendants Berry and McGoldrick brought their own civil rights action, McGoldrick and Berry v. Koch et al., 84 Civ. 1335 (ADS), alleging that their constitutional rights to due process and equal protection had been violated by the Department’s disciplinary procedures. They sought reinstatement to their positions as police officers and monetary damages. On April 17, 1984, the two actions were Consolidated for pre-trial purposes only.

In addition to his allegations concerning Berry and McGoldrick’s behavior, Arancibia alleges that the City of New York (“City”) is also responsible for his injuries. In his amended complaint, he identifies three theories by which he claims that the acts of defendants Berry and McGoldrick can be imputed to the City. First, he alleges that Berry, McGoldrick, and the two other officers were the “servants, agents, and employees of the City at the time the alleged incident occurred. Amended Complaint ¶ 22. Second, he claims that the City “was grossly negligent and deliberately indifferent in the hiring, retention, training, supervision, discipline and assignment” of the officers involved in the incident, because it knew or should have known of Berry and McGoldrick’s disposition to engage in the kind of behavior alleged in the complaint and of the willingness of other officers to cover up such behavior. Id. ¶ 23. Finally, he claims that the conduct of the officers involved in this case “resulted from a policy, plan, pattern, practice and custom that was acquiesced in and condoned” by the City. Id. ¶ 24.

The City has moved for summary judgment pursuant to Fed.R.Civ.P. 56.

Arancibia’s first theory — that the unconstitutional and illegal acts of Berry and McGoldrick may be imputed to the City because the City was their employer — is nothing more than a claim based on respondeat superior. This basis for imposing liability upon a municipality was specifically rejected by the Supreme Court in Monell v. Department of Social Services, 436 U.S. 658, 663 n. 7, 691-95, 98 S.Ct. 2018, 2022 n. 7, 2036-38, 56 L.Ed.2d 611 (1978); see Turpin v. Mailet, 619 F.2d 196, 199 (2d Cir.), cert. denied, 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475 (1980); Dominguez v. Beame, 603 F.2d 337, 341 (2d Cir.1979), cert. denied, 446 U.S. 917, 100 S.Ct. 1850, 64 L.Ed.2d 271 (1980). Indeed, plaintiff himself concedes the insufficiency of a legal theory based solely upon the employment relationship. See Plaintiff’s Memorandum of Law at 4 (Apr. 24, 1984).

To maintain a cause of action against the City, plaintiff must allege facts sufficient to suggest that the unconstitutional and illegal acts of Berry and McGoldriek were taken pursuant either to an explicit municipal policy or “visited pursuant to governmental ‘custom’ even though such a custom has not received formal approval....” Monell, 436 U.S. at 690-91, 98 S.Ct. at 2035-36. Plaintiff here alleges no express Department policy either approving the brutal beating of civilians or ordering that police officers cover up the malfeasance of their fellows. Plaintiff must therefore present sufficiently specific factual allegations that there is in fact such a policy. See Turpin, 619 F.2d at 199. Plaintiff advances two distinct theories of such a policy.

In ¶ 23 of the amended complaint, he alleges gross negligence and deliberate indifference in the Department’s personnel policies. See Owens v. Haas, 601 F.2d 1242, 1246 (2d Cir.1979) (such claims, if proven, are sufficient for finding municipal liability under § 1983), cert. denied, 444 U.S. 980, 100 S.Ct. 483, 62 L.Ed.2d 407 (1979). This theory rests on two factual predicates: first, that Officers Berry and McGoldrick had a propensity toward brutality and excessive use of force and that the other officers had a propensity toward covering up evidence of excessive use of force; and second, that the Department’s personnel policy was grossly negligent of and indifferent toward such dangers.

Arancibia has failed to present any facts to support either allegation. He fails to allege that either officer had ever engaged in any behavior that led or should have led the Department to foresee the likelihood of their administering a gratuitous beating to plaintiff. Apparently, plaintiff’s counsel chose to rely for support of this suggestion solely on the possibility that the personnel files of the individual defendants might contain evidence of such acts that would suggest that the City was or should have been aware of a danger of brutality toward civilians. See Affidavit of Guy L. Heinemann ¶ 4 (Apr. 24, 1984). The files completely contradict plaintiff’s assertions, however. Until the time of the incident which gave rise to this action, Berry had been the subject of only one civilian complaint — for “discourtesy.” Affidavit of James W. Helbock Regarding Arthur Berry ¶ 16 (May 18, 1984). Moreover, the Court’s in camera examination of Berry’s personnel file disclosed no evidence that could have suggested his “disposition” to use excessive force. Berry was commended five times for his performance as a police officer. The two reports concerning his discharge of a firearm both concluded that his actions were in keeping with departmental policy regarding the use of weapons. See Report from Commanding Officer, Patrol Borough Bronx to Chief of Operations (June 24, 1981); Report from Commanding Officer, Patrol Borough Bronx to Chief of Operations (Aug. 13, 1980) . The performance evaluation form used by the Department, PD439-157, specifically requires the rater “to comment as to the individual’s overall behavior in enforcement and regulatory situations as well as his/her use of appropriate and justifiable force.” Id., Standard 8. Berry’s 1982 evaluation stated that he “maintains control in incidents] of stress,” and “[u]ses only justifiable force.” His 1978 evaluations characterized his as a “stable individual [who has] no problem regarding use of force.” Similar assessments appear in his 1980 and 1981 evaluations, as well as in the more detailed reports filed when he was a probationary police officer.

The evidence concerning McGoldrick is similar. Until the time of this incident, he was the subject of only two civilian complaints for discourtesy, one of which was “ultimately unsubstantiated,” the other of which was “informally conciliated.” Affidavit of James W. Helbock Regarding Thomas McGoldrick ¶ 16 (May 18, 1984). He had received a commendation for “excellent police duty.” His 1980 performance evaluation stated that he “[s]tays well within the department guidelines on the use of justifiable force,” and his 1981 evaluation expressed similar sentiments.

In support of his theory that the City’s personnel policies were grossly negligent and deliberately indifferent, plaintiff relies on nothing more than sweeping assertions, unsupported by any specific factual allegations. Such claims cannot survive a motion for summary judgment. See Boorstin v. City of New York, 82 Civ. 7887, slip op. at 4 (S.D.N.Y.1984); Cattan v. City of New York, 523 F.Supp. 598, 601-02 (S.D.N.Y. 1981) .

In Cattan, Chief Judge Motley set out criteria for assessing claims of gross negligence and indifference against police departments based on allegations of brutality by individual police officers. She granted summary judgment for the municipal defendants in Cattan based upon the “unrebutted affidavit” of the chief of the police department’s personnel bureau “detailing] the steps taken by the police department to initially screen applicants to the police force, as well as the continuing efforts of the police department to provide further training for police officers throughout their careers,” id. at 602, and upon the absence of any facts regarding the specific officer involved “to suggest violent tendencies,” id. She concluded that under such circumstances, “it is untenable to say that the continued employment of [the defendant officer] was ‘gross negligence’ amounting to ‘deliberate indifference.'" Id.

This case is virtually identical to Cattan. The City has submitted detailed affidavits of James W. Helblock, Inspector in command of the Department’s Personnel Bureau, and of Richard Koehler, Assistant Chief in command of the Bureau. These affidavits discuss the comprehensive background checks and psychological screening undertaken in evaluating candidates for positions as officers; the training that officers receive, in the classroom, in various role-playing workshops, and in a supervised recruit field training program; the periodic evaluations made of officers’ performance; the various programs established to treat officers suffering from psychological problems that could impair their performance; and a number of formal review procedures that deal with such circumstances as civilian complaints and discharge of weapons.

Plaintiff has failed to respond in any substantive way to the evidence presented in the Helblock and Koehler affidavits. He alleges no specific inadequacies in the Department’s selection, training, or review procedures. His reliance on Owens v. Haas is therefore misplaced. There, the Second Circuit held that the suit against the county should not have been dismissed because plaintiff should have been given the opportunity for limited discovery to determine whether a case “[could] be made for deliberate indifference by the county.” 601 F.2d at 1247. Here, plaintiff has failed to request any discovery that could possibly lead to evidence of gross negligence or deliberate indifference in the training and supervising of the police force. Having failed to attempt to obtain information to support his claim, plaintiff cannot now rely on the incompleteness of the record to avoid summary judgment. See Plaintiffs Memorandum at 7 (arguing that constitutional questions should not be decided on “an inadequate factual basis”); cf. Bonsignore v. City of New York, 521 F.Supp. 394, 402 (S.D.N.Y.1981), aff’d, 683 F.2d 635 (2d Cir.1982). Because plaintiff has failed to allege specific facts to support his theory of gross negligence or deliberate indifference, this claim must be dismissed.

Plaintiffs other theory of the City’s culpability — that the officers’ conduct was the result of “a policy, plan, pattern, practice and custom,” Amended Complaint ¶ 24 — is similarly insufficient to sustain his cause of action against the City. This potential basis for liability is distinct from that asserted in ¶ 23 of the amended complaint, in that it apparently alleges pervasive behavior by members of the Department, of which the mistreatment of plaintiff is but one example. Moreover, it appears to allege acts of commission by the Department, rather than of omission.

Plaintiff has failed to allege with any specificity the policy, plan, pattern, practice, or custom involved in this case. Assuming for the sake of argument that the policy he alleges is one of police brutality and suppression of evidence, he has failed to allege a single “previous or subsequent exampl[e]” of such a policy. Cattan, 523 F.Supp. at 601.

In this regard, plaintiff’s reliance on Owens v. Haas and Turpin v. Mailet is misplaced. He points to language in those cases which states that a single, particularly egregious example of brutality may be sufficient to warrant an inference of inadequate training or supervision. We have already discussed, however, why plaintiff’s allegations in this case do not support the allegation of negligence or indifference. In this final theory of municipal liability, however, plaintiff is not alleging negligence, which might perhaps be inferred from a particular act, but a pattern, practice, or custom. The existence of a pattern simply cannot be inferred from one incident, particularly one which lacks the egregious qualities plaintiff claims. Plaintiff has made virtually no effort to discover, and has made no allegations in response to the City’s motion concerning, any pervasive series of episodes similar to the one in which he was involved. See Bonsignore, 521 F.Supp. at 402 n. 3.

Moreover, the City has explicitly denied this allegation. See Affidavit of Richard Koehler ¶ 2 (July 25, 1984) (“there is no policy or practice of the New York City Police Department to condone, permit or in any other manner tolerate the use of excessive force or the cover-up of the same”). The Department’s behavior in this case supports the details outlined in Koehler’s affidavit. The Department initiated disciplinary proceedings against Berry and McGoldrick which resulted in their dismissal from the force. In recommending this action, the Assistant Commissioner for Trials found that their conduct “represented] a total breach of their sworn obligation to protect the public from violence and injury,” Opinion at 22, that they had “stooped to the level of thugs,” id., and that their actions were “reprehensible,” id. at 23. He concluded that “[t]he Department has an obligation to the public to insure that police officers who have demonstrated violent and brutal behavior are never given another opportunity to misuse their official position and bring shame upon themselves and discredit upon the Department.” Id. Plaintiff has failed to point to any facts to suggest the opposite of these findings and conclusions. Cf. Cattan, 523 F.Supp. at 602.

Plaintiff argues that, even if his federal claims against the City are dismissed, this court should retain jurisdiction over his state-law claims against the City. Plaintiffs Memorandum at 8-10. United Mineworkers v. Gibbs, 383 U.S. 715, 725-27, 86 S.Ct. 1130, 1138-39, 16 L.Ed.2d 218 (1966), sets out the general standard for the exercise of pendent jurisdiction. Pendent jurisdiction is a doctrine of discretion, rather than right, which may be exercised when the federal and state claims arise from a common nucleus of operative fact. Normally, if the federal claims are dismissed before trial, the state claims should be dismissed as well. In this case, far less overlap exists in the nuclei of operative fact than plaintiff suggests. The only facts that need be determined with regard to plaintiff’s claims against Berry and McGoldrick center on what, if anything, those two officers did to plaintiff on May 23, 1981. To determine the City’s liability for Berry and McGoldrick’s alleged false arrest, false imprisonment, and assault and battery, however, would require examination of the City’s relationship with its employees under state law.

In any event, this case does not involve standard, “pendent-claim” jurisdiction. Rather, plaintiff is asking this court to exercise “pendent-party” jurisdiction by hearing non-federal claims involving a party against whom no federal claim exists. Whether this court is entitled to exercise “pendent-party” jurisdiction with regard to the issues involved in this suit is unclear. In Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976), the Supreme Court held that 28 U.S.C. § 1343, the jurisdictional provision involved in section 1983 suits, does not grant the district courts jurisdiction over statelaw claims. One basis of Aldinger’s holding was, of course, that such municipalities were immune from suit under section 1983, a bar that was overruled in Monell. While Owen Equipment Co. v. Kroger, 437 U.S. 365, 372 n. 12, 98 S.Ct. 2396, 2402 n. 12, 57 L.Ed.2d 274 (1978), points out that Monell undercuts the specific holding of Aldinger, the general observation that “pendent-party” jurisdiction ought to be employed more sparingly than “pendent-claim” jurisdiction, 427 U.S. at 18, 96 S.Ct. at 2422, remains sound. Cf. Irwin v. Calhoun, 522 F.Supp. 576 (D.Mass.1981). In addition, although the absolute bar against section 1983 suits against municipalities has been lifted, the general policy considerations that militate against forcing municipalities to litigate in federal courts the legality of their practices under state law also remain sound.

The court has considered the possibility that the City should remain a party, through pendent-party jurisdiction, because this case should be consolidated for trial with McGoldrick and Berry v. Koch. While the two cases were properly consolidated for pre-trial purposes, consolidation for trial would be inappropriate. A consolidated trial would create significant potential for prejudice against plaintiff Arancibia and a significant danger of confusion of the issues by the jury. Moreover, the City may yet file pretrial motions in McGoldrick and Berry which will end that case without a trial. Indeed, a trial of that case may be rendered wholly or largely unnecessary if this case ends in a verdict for Arancibia. Therefore, the fact that the City presently remains a defendant in the suit by the two former officers fails to make its retention in this suit appropriate.

The City’s motion for summary judgment on plaintiff’s federal claims and its motion to dismiss plaintiff’s state-law claims are granted.

SO ORDERED.


author: GENE CARTER, District Judge.

text:
    UNITED STATES of America v. Edward Patrick KENNEY.
    Crim. No. 84-00007-01-P.
    United States District Court, D. Maine.
    Feb. 26, 1985.

      Joseph H. Groff, III, Asst. U.S. Atty., Portland, Me., for plaintiff.
    Daniel G. Lilley, Portland, Me., for defendant.
   MEMORANDUM AND ORDER ON MOTION FOR RELEASE ON BAIL PENDING APPEAL

GENE CARTER, District Judge.

I.

Before the Court is Defendant’s motion, filed on February 11, 1985, for release on bail pending appeal. Defendant was convicted of the offense of conspiracy to possess a substantial quantity of cocaine with intent to distribute, in violation of 21 U.S.C. § 846, by jury verdict on December 17, 1984. On February 11, 1985, the Court imposed a sentence of incarceration for a period of ten (10) years. Defendant was at large on bail throughout the proceedings and up to the time of imposition of sentence in the amount of Thirty Thousand Dollars ($30,000) secured by a cash deposit of Three Thousand Dollars ($3,000). Subsequent to sentencing, the Court revoked the Defendant’s bail and remanded the Defendant to the custody of the United States Marshal, pursuant to the applicable provisions of the Bail Reform Act of 1984, Pub.L. No. 98-473, § 203, 98 Stat. 1981-82 (to be codified at 18 U.S.C. § 3143(b). Defendant seeks by the present motion to be admitted to bail pending appeal.

II.

Defendant first argues that his application for bail must be governed by the pertinent provisions of the Bail Reform Act of 1966, 18 U.S.C. § 3148. He contends that since the 1984 Act did not become effective until October 12,1984, on its signing by the President, its terms may not govern his admission to bail because the offense of which he stands convicted was committed prior to the date. Application of the later Act, he asserts, is barred by the ex post facto clause of the United States Constitution, Art. I, § 9, Cl. 3; see Art. I, § 10, Cl. 1.

This claim cannot succeed. The constitutional provisions cited apply only to laws which impose “punishment.” United States v. Miller, 753 F.2d 19 (3d Cir.1985); see Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981). Those provisions do not bar application of changes in criminal process. Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). The device of bail in criminal proceedings is not utilized as a method of punishment. Rather, it is an instrument of criminal process designed to secure the appearance of the defendant before the court. A denial of bail serves the same purpose where the court finds that less intrusive limitations on the defendant are not sufficient to that end. The Bail Reform Act of 1984 in § 3143(b) promulgates a change in the standard for admission to, or denial of, bail pending appeal and accomplishes a reversal of the burden of proof where bail is sought. Miller, 753 F.2d at 22. The application of the provisions of this section to a defendant convicted after October 12, 1984, of an offense occurring prior thereto is not prohibited by the ex post facto clauses. Id., at 21-22. The Court of Appeals for this Circuit has sanctioned such application of the 1984 Act. United States v. Cresta, Crim. No. 85-1010 (1st Cir. Feb. 20, 1985). Therefore, section 3143(b) is the statutory provision which governs this Defendant’s admission to bail in this case.

III.

Title 18 U.S.C. § 3143(b) of the 1984 Act provides as follows:

RELEASE OR DETENTION PENDING APPEAL BY THE DEFENDANT — The judicial officers shall order that a person who has been found guilty of an offense and sentenced for a term of imprisonment and who has filed an appeal or a petition for a writ of certiorari be detained, unless the judicial officer finds—
(1) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released pursuant to § 3142(b) or (c); and
(2) that the appeal is not for purpose of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial.
If the judicial officer makes such findings he shall order the release of the person in accord with the provisions of § 3142(b) or (c).

The Defendant has not here carried his burden of proving that he is not likely to flee. The record in this case shows him to be presently unemployed. He is subject to execution of a ten-year prison term imposed herein, and he is scheduled to go to trial on March 4, 1985, on a second indictment charging him with a separate offense of conspiracy to violate 21 U.S.C. § 846. If convicted in that case, he will face an additional term of incarceration of fifteen years and a fine of twenty-five thousand dollars.

The evidence adduced at trial displays a course of personal use of cocaine and of trafficking in cocaine in one pound and kilogram quantities over several months during 1984. The codefendant in this case is a fugitive, having failed to appear for trial. The Defendant has shown no objective indicia of rehabilitation.

Against these baleful circumstances, defense counsel urges the Court to set the facts (1) that the Defendant has always appeared before the Court whenever ordered to do so; (2) that he has no significant record of criminal offenses prior to the conduct giving rise to this prosecution; (3) that he owns a home in Portland, Maine; and (4) that he has self-proclaimed, close family ties. Even if it be assumed that these facts are well proven, they would not, taken together, constitute clear and convincing evidence that he will not flee if admitted to bail pending appeal. The risk he now faces is much enhanced over that which he faced prior to trial or even prior to sentencing. He had, prior to trial, some level of belief that he would prevail at trial. That provided a counterbalancing incentive to appear for trial, for to fail to do so would be to wholly forfeit the opportunity to prevail at trial. Even prior to sentencing, he could hope for leniency. Now he faces the certainty of a ten-year term of incarceration, subject only to his success on appeal.

Secondly, any indicia of reliability to be found in the Defendant’s conduct prior to the events of 1984 which resulted in. this conviction, are fully negated by the social irresponsibility and lack of personal character shown by his continued course of trafficking in substantial amounts of cocaine in 1984. Whatever his remote past demonstrates about respect for the law and responsible citizenship is undone wholly by the gravity of his conduct in the immediate past.

Further, (under all the circumstances) the Defendant’s alleged pecuniary interest in his house and his reputed close ties to his family cannot fairly be said to overcome the risk that he may come to perceive his personal, long-term interests in his liberty as more important. He may view those liberty interests as best served by not facing both the relative certainty of execution of the ten-year prison term already imposed and trial in the separate case.

Finally, the latter three factors on which the Defendant relies are not demonstrated by any evidence, but are put forth only as the arguments or representations of counsel. Although his concern for an aged mother is displayed in the presentence investigation report, it is based only on his unconfirmed representations made to the probation officer who prepared the report. He is divorced, so his marital obligations will raise little, if any, impediment to his flight. His children are grown. He is unemployed. Although his former wife professes concern for the Defendant, her testimony at trial displays a pecuniary interest in some $14,000 seized from the Defendant’s safe deposit box in the course of the DEA investigation in this case. Her testimony discloses a possible interest in the Defendant’s residence, and the presentence report indicates that the residence is owned jointly by the Defendant and his former wife.

The Court concludes that the Defendant has not demonstrated by clear and convincing evidence that he is unlikely to flee, and is further convinced that no restriction short of revocation of his bail is reasonably likely to secure his appearance in answer to the judgment of this Court upon resolution of the appeal.

IV.

The Court has also reviewed the four points presently specified on the pending appeal and is satisfied that they do not raise substantial questions of law or fact likely to result in reversal or an order for a new trial. 18 U.S.C. § 3143(b)(2). The Court interprets the statute to require on such review that the Court be satisfied that the appeal raises a substantial issue, that is, a colorable and choate claim of trial error, which is of such significance to the adjudication of the Defendant’s guilt as to require reversal if found to exist. See United States v. Miller, supra, at 23. This Court gave careful consideration to each of the points raised by the Defendant on the appeal and fully explicated its findings and rationale in ruling against the Defendant on each of them. The Court is not persuaded, even allowing for some degree of judicial tunnel vision, that any of the points is likely to result in a finding on appeal of the existence of trial error.

Accordingly, for the foregoing reasons, the Defendant’s motion to be admitted to bail pending appeal is DENIED.

So ORDERED.


author: SPELLMAN, District Judge.

text:
    In the Matter of the Complaint of TROPIGAS CARRIERS, INC. As Owners of the Motor Vessel "FRED H. BILLUPS" For Exoneration From or Limitation of Liability.
    No. 82-2729-CIV-EPS.
    United States District Court, S.D. Florida, Miami Division.
    Feb. 26, 1985.
    Brett Rivkind, Miami, Fla., for plaintiff.
    Murray Sams, Jr., Howard Hill Bennet, Miami, Fla., for claimant.
   MEMORANDUM OPINION AND ORDER GRANTING CLAIMANT’S MOTION TO LIFT INJUNCTION; GRANTING MOTION FOR DUE APPRAISAL; REMOVING CASE FROM TRIAL CALENDAR; CANCELLING PRETRIAL CONFERENCE

SPELLMAN, District Judge.

On December 17, 1982, an action was filed in the Circuit Court of the Eleventh Judicial Circuit, Dade County, on behalf of Hector Franco for injuries he sustained while on board the vessel “FRED H. BILL-UPS” on June' 21, 1982. It is alleged that Plaintiff suffered “severe and permanent injuries as a result of negligence of the captain and crew of the vessel due to the failure of the defendant to properly inspect and warn the plaintiff of an unsafe, dangerous condition; this condition directly contributed to the plaintiff sustaining his injuries.” It is also alleged that because proper and timely medical treatment was not provided by the Captain of the vessel, the Plaintiff suffered severe aggravation of his injuries. Punitive damages were claimed. See Hector Franco v. Tropigas Carriers, Inc., No. 82-24318, Dade County Circuit Court, Eleventh Judicial Circuit.

On December 17, 1982, Defendant Tropigas Carriers, Inc. filed in this Court its Petition for Exoneration from or limitation of liability. On January 12, 1983, this Court entered an injunction enjoining the prosecution of all other actions during the pendency of the instant proceedings. The Claimant now moves “for entry of an Order lifting the Injunction on January 12, 1983 in order to allow the pending state common-law action to go forward.” Claimant’s Motion is granted.

It is by now well-established that the federal courts have exclusive jurisdiction to determine whether or not the shipowner is entitled to a limitation of liability or is exempt from liability. See, e.g., Great Lakes Dredge & Dock Co. v. Lynch, 173 F.2d 281 (6th Cir.1949). Whether or not the Claimant should be barred from proceeding with the common law state court action pending the outcome of the limitation proceeding, however, hinges on whether or not there are single or multiple claims filed against the vessel owner. Courts have consistently held that where there is a single claim brought against the vessel owner, there is no reason to prevent the state court action from proceeding. See Petition of Red Star Barge Line, Inc., 160 F.2d 436, 437 (2nd Cir.), cert. denied, 331 U.S. 850, 67 S.Ct. 1741, 91 L.Ed. 1859 (1947).

Two United States Supreme Court cases established the practice of permitting a single Claimant to proceed with his state court suit. In the first of the two cases, Langnes v. Green, 282 U.S. 531, 51 S.Ct. 243, 75 L.Ed. 520 (1931), the Court held that the district court should have allowed the state court action to proceed “retaining, as a matter of precaution, the petition for a limitation of liability to be dealt with in the possible but ... unlikely event that the right of petitioner to a limited liability might be brought into question in the state court.” Id. at 541-42, 51 S.Ct. at 247.

In Green, the “unlikely event” occurred. In the state court, Green put in issue the right of the owner to limited liability, by challenging the seaworthiness of the vessel and the lack of the owner’s privity of knowledge. When this was brought to the attention of the court in the limitation proceeding, further prosecution of the state court action was enjoined, but Green was given an opportunity to withdraw in the state court the issue as to the right of the owner to limited liability. This disposition of the matter was approved by the Supreme Court in the second case, Ex Parte Green, 286 U.S. 437, 52 S.Ct. 602, 76 L.Ed. 1212 (1932).

As far as can be gathered from Justice Sutherland’s two opinions, at no time did Green concede the right of the vessel owner to limit. He was restrained from continuing the prosecution of his action if he insisted on putting in issue in that suit the owner’s right to limited liability, but the lifting of the injunction was not conditioned upon his filing a concession of the right but upon his withdrawal of the issue from litigation in the state court. Now, however, a concession is required.

In 1947, the Second Circuit Court of Appeals determined that the Claimant must concede, to proceed with the common law action in state court, that the shipowner has the right to litigate in the federal court limitation proceedings all issues relating to limitation. Petition of Red Star Barge Line, Inc., 160 F.2d 436 (2nd Cir.), cert. denied, 331 U.S. 850, 67 S.Ct. 1741, 91 L.Ed. 1859 (1947). See also Petition of Moran Transportation Corp., 185 F.2d 386 (2nd Cir.1950), cert. denied, 340 U.S. 953, 71 S.Ct. 573, 95 L.Ed. 687 (1951).

The Green cases and the second circuit rulings were conclusively reaffirmed in Lakes Tankers Corp. v. Henn, 354 U.S. 147, 77 S.Ct. 1269, 1 L.Ed.2d 1246 (1957). In Henn, the Court discussed the Limited Liability Act, 46 U.S.C. §§ 181-196, and decided that the shipowner must not be able to “thwart” the claimant’s right to a jury trial in state court:

The state proceeding could have no possible effect on the petitioner’s claim for limited liability in the admiralty court and the provisions of the Act, therefore, do not control. It follows that there can be no reason why a shipowner, under such conditions, should be treated any more favorably than an airline, bus, or railroad company. None of them can force a damage claimant to trial without a jury. They, too, must suffer a multiplicity of suits. Likewise, the shipowner, so long as his claim of limited liability is not jeopardized, is subject to all common-law remedies available against other parties in damage actions. The Act, as we have said, was not adopted to insulate shipowners from liability but merely to limit it to the value of the vessel and the pending freight.

Id. at 153, 77 S.Ct. at 1272-73 (citations omitted).

Thus, because the shipowner has failed to offer any reason why Claimant’s motion to permit his state court action to proceed should not be granted and in fact “cannot argue [with] the cases cited by the Claimant in its Memorandum,” Claimant’s Motion to Lift the Injunction entered on January 12, 1983 is granted. The above cited cases demonstrate that the customary procedure in cases such as this, where a single Claimant is involved, is for the district court to lift the injunction to permit the state trial court action to proceed.

By abstaining now, until the state court action is concluded, there is a great likelihood that this Court will never have to decide the limitation issue. If the state court judgment is for the shipowner or is for the Claimant in an amount less than the limitation fund, this Court will be spared the necessity of hearing the limitation issue. Thus, the injunction is lifted, and Claimant is hereby ordered to file with this Court a proper statement conceding the sufficiency and amount of the Stipulation for Value, filed on December 17, 1982, and a statement waiving any claim of res judicata relevant to the issue of limited liability based on any judgment received in the state court action.

In regards to the statement conceding the sufficiency and amount of the shipowner’s Ad Interim Stipulation for Value, Claimant has filed a Motion to Increase Security and Cause Due Appraisement on February 11,1985. Claimant contends that the stipulation does not at all reflect “the true value of Petitioner’s interest in the motor vessel ‘FRED H. BILLUPS’ and the freight then pending.” This Court agrees and therefore grants Claimant’s Motion for Due Appraisement.

The only affidavit supporting the stipulation is by an interested party (affiant, Mr. Bayer, is a vice-president of Petitioner corporation) and should not be relied upon as an unbiased and disinterested appraisal of true value. The affidavit lacks the necessary guarantee of trustworthiness upon which to make a determination of the shipowner’s interest in the vessel. See Petition of Sanders, 56 F.Supp. 887 (E.D.Va. 1944). This is especially true in light of the fact that the vessel was insured for $2,500,-000 at the time of the accident while Petitioner’s Stipulation states $500,000 as the vessel’s worth. Complaint of Red Star Barge Line, Inc., 683 F.2d 42 (2nd Cir. 1982) (amount for which a vessel is insured is one method to be used in determining the true value of a vessel). Thus, Claimant's Motion is granted. This Court, pursuant to Local Admiralty Rule 10, shall order due appraisal be made by a Court appointed appraiser. The Parties are directed, within ten (10) days from the date of this Memorandum Opinion and Order, to submit to this Court the name or names of agreed-upon appraisers to make this appraisal.

Based on this Court’s conclusion, the case is hereby removed from the March, 1985 trial calendar and the Pre-Trial Conference, scheduled for February 28,1985 at 10:30 a.m., is cancelled. Claimant’s Motion to Compel the Production of Documents, filed on February 12, 1985, and Petitioner’s Motion for Protective Order and/or Motion to Quash, filed on February 22, 1985, shall be held in abeyance pending the resolution of the state court proceedings. Petitioner’s Motion to Strike Reply Memorandum of Claimant, filed on February 22, 1985, is denied as moot.

       The reaffirmation was “so clear that the issue has almost entirely disappeared from litigation since the 1950’s." Gilmore & Black, The Law of Admiralty, at 871 n. 84 (2d ed.1975).