author: GENE CARTER, District Judge.

text:
    Linn BOWKER, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    Civ. No. 84-0041-P.
    United States District Court, D. Maine.
    Nov. 1, 1984.

      Michael A. Bell, Bell & Geores, Lewiston, Maine, for plaintiff.
    Paula D. Silsby, Asst. U.S. Atty., Portland, Maine, for defendant.
   MEMORANDUM OF DECISION AND ORDER OF REMAND

GENE CARTER, District Judge.

I.

This is an action brought under 42 U.S.C. § 405(g) and § 1383(c)(3) for review of the final decision of the Secretary of Health and Human Services, which denied Plaintiffs application for a period of disability and for disability insurance benefits under 42 U.S.C. §§ 423(d)(1) and 1382c(a)(3)(A). Ai) Administrative Law Judge (AU) decided that Plaintiff was entitled to a period of disability and to disability insurance benefits as of November 1,1979, due to epilepsy and diabetes. The Appeals Council reversed the AU’s decision. Specifically, the Appeals Council found, contrary to the finding of the AU, that Plaintiffs impairment did not satisfy the criteria of Section 11.02(A) and (B) of the Listing of Impairments found in Appendix 1 to 20 C.F.R. Part 404. Plaintiff has filed a Motion for Summary Judgment, and Defendant has filed a Motion for Order Affirming the Decision of the Secretary. The case is before the Court on these motions.

The standard of this Court’s review is whether the determination made by the Secretary is supported by substantial evidence. 42 U.S.C. § 405(g) and § 1383(c)(3); Lizotte v. Secretary of Health and Human Services, 654 F.2d 127, 128 (1st Cir. 1981). The determination must be supported by such relevant evidence as a reasonable-mind might accept as adequate to support the conclusions drawn. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971).

The Court has thoroughly reviewed the transcript of the administrative proceedings, the exhibits presented, the decisions of the AU and the Appeals Council, and the briefs of counsel. After careful consideration, the Court finds that there is not substantial evidence to support the Secretary’s decision that the claimant was not disabled within the meaning of the Social Security Act.

The regulations promulgated pursuant to the Social Security Act serve the beneficent purpose of promoting consistency and objectivity in administrative review of disability claims. They represent an ambitious effort to provide a specific rule of decision for each of a multiplicity of foreseeable impairments and combinations thereof. Not every claim, however, fits neatly into the framework of the regulations, and a claimant occasionally is prejudiced by the Secretary’s effort to squeeze a square peg into a round hole. This is such a case.

Plaintiff suffers from two serious illnesses, epilepsy and diabetes. Currently 30 years old, he takes high dosages of Dilantin and Phenobarbital to control the epilepsy, and insulin to control the diabetes. He also has a history of depression that includes an apparent suicide attempt in July 1983.

The AU heard the testimony of Plaintiff, his wife, and Medical Advisor Albert Aranson, M.D. The record also contains extensive medical records and two affidavits by Plaintiff’s wife concerning the frequency and nature of Plaintiff’s epileptic seizures.

The AU found that Plaintiff’s epilepsy satisfied the criteria of Section 11.02(A) and (B) of the Listing of Impairments found in Appendix 1 to 20 C.F.R. Part 404, which provides:

11.02 Epilepsy — major motor seizures (grand mal or psychomotor), documented by EEG and by detailed description of a typical seizure pattern, including all associated phenomena; occurring more frequently than once a month, in spite of at least 3 months of prescribed treatment. With:
A. Diurnal episodes (loss of consciousness and convulsive seizures); or
B. Nocturnal episodes manifesting residuals which interfere significantly with activities during the day.

The AU accordingly found him to be disabled without considering his age, education and work experience pursuant to 20 C.F.R. § 404.1520(d).

The Appeals Council reviewed the AU’s decision on its own motion. See 20 C.F.R. § 404.969. The Council found that Plaintiff’s allegations as to the frequency of his seizures were not credible or substantiated by the medical evidence. Record at 20. It found the medical evidence to be in conflict with Plaintiff's allegations and the statements in the affidavits. Id.

The Appeals Council further found that Plaintiff had a residual functional capacity for light work as defined in 20 C.F.R. § 404.1567. Id. It found that the level of work Plaintiff could perform was not significantly affected by Plaintiff’s non-exertional limitations. Id. The Council then relied upon the Medical-Vocational Guidelines, set forth in Appendix 2 to 20 C.F.R. Part 404, Rule 202.17, to determine that Plaintiff is not disabled.

The Appeals Council is not bound by the findings of the AU. The Council is free to independently weigh the evidence and arrive at its own findings and conclusions. Oldham v. Secretary of Health and Human Services, 718 F.2d 507, 510 (1st Cir.1983). This Court must determine whether the final decision of the Secretary — in this case, the decision of the Appeals Council — is supported by substantial evidence.

II.

The first issue is whether the Appeals Council’s finding that Plaintiff does not satisfy the criteria set forth in Section 11.02 of the Listing of Impairments is supported by substantial evidence. To satisfy the Listing, Plaintiff’s seizures must occur “more frequently than once a month.” The burden of proving the frequency of the seizures is placed upon the claimant. See Reyes Robles v. Finch, 409 F.2d 84, 86 (1st Cir.1969).

The Court finds that there is substantial evidence to support the Secretary's finding that Plaintiff failed to meet his burden of proof with respect to the frequency of seizures prior to January 1,1982. Plaintiff testified on October 19, 1982. His only specific testimony regarding the frequency of seizures between November 1, 1979, the alleged date of onset of disability, and January 1982 was as follows: “[A]t the beginning of the year [1982], I was working — before that, I wasn’t working and I was having seizures, but I was having em about two or three a month.” Record at 61. Neither his testimony nor that of his wife includes information concerning the duration of the period in which he was allegedly suffering “two or three a month.”

Plaintiff’s reports to his physicians, on the other hand, support the Secretary’s conclusion regarding the frequency of seizures prior to 1982. On November 5, 1981, Plaintiff’s treating physician, Brian McCann, M.D., stated that the claimant’s “last reported seizure” had occurred more than a year ago. Record at 167. On May 14, 1981, Iain Sanderson, M.D., another treating physician, stated that Plaintiff “reported no seizures and myoclonic jerkings only once monthly.” Record at 157. On August 11, 1981, Dr. Sanderson stated that Plaintiff had suffered no seizures since his visit in May. Record at 173. This represents substantial evidence to support the Secretary’s finding regarding the frequency of seizures prior to 1982.

The record does not contain substantial evidence supporting the Secretary’s findings regarding the frequency of seizures during the period beginning in January 1982 and ending with the close of evidence. The claimant testified that he had suffered more than one seizure a month in 1982. Record at 61-62. In an affidavit of May 16, 1983, the claimant’s wife stated that seven seizures had occurred since October 19, 1982. Record at 261. In her affidavit of July 26, 1984, she stated that he had suffered a seizure on June 30 and one on July 2. Record at 264, 265.

Dr. Aranson, the Medical Advisor to the AU, testified that the claimant’s seizures were occurring at least once a month. Record at 91. Bernard Kopet, M.D., another examining physician, stated that the claimant told him on April 22, 1982, that seizures were occurring twice monthly. Record at 175.

The only evidence that could be said to conflict with the above evidence regarding the frequency of seizures is a report of Bruce Sigsbee, M.D., a treating physician. On June 16, 1982, Dr. Sigsbee stated that seizures were occurring every three weeks. Record at 183. On September 9, 1982, he stated that the claimant had suffered one seizure in two months. Record at 186. These reports do not conflict with the claimant’s testimony. However, on April 19, 1983, Dr. Sigsbee stated in a letter to Plaintiff’s counsel that “the last recorded seizure I have in reference to Mr. Linn Bowker is one that occurred in January.” Record at 254 (emphasis added). On May 9, 1983, Dr. Sigsbee wrote the following letter to Plaintiff’s counsel:

Mr. Linn Bowker was in the office recently. He provides the history that he is having approximately one seizure a month, usually at night, though not exclusively restricted to night time. There is a reasonable medical probability that within six months, his seizures will completely be controlled with medication adjustment. I have asked that he call with any further seizures. Unfortunately, he has not called between the visit in January and now and we have lost time in terms of trying to get the seizures under control.

Record at 258 (emphasis added), This letter is ambiguous with regard to when Dr. Sigsbee asked Plaintiff to call “with any further seizures.” The letters from Dr. Sigsbee constitute the only evidence upon which the Appeals Council could have based its conclusion that seizures were occurring less frequently than once a month at any time subsequent to January 1982. They indicate only that the claimant did not call Dr. Sigsbee to report any seizures from January to May of 1983. Dr. Sigsbee did not question the claimant’s statement that he was having seizures approximately once a month. The affidavit of claimant’s wife tends to negate the inference that might be drawn from the fact that Plaintiff did not call Dr. Sigsbee from January to May of 1983. The Court concludes that the record does not contain substantial evidence to support the Secretary’s conclusion that the claimant did not suffer seizures more than once monthly beginning in January 1982.

The Secretary argues that if the claimant failed to pursue his treatment regimen, he cannot be found to satisfy the criteria in the Listing of Impairments. See 20 C.F.R. § 404.1530. Two treating physicians, Dr. Sanderson and Dr. Sigsbee, speculated that poor seizure control may have resulted from the claimant’s failure to regularly take his medication as prescribed. On August 11, 1981, Dr. Sanderson stated in an office note: “In the past, seizure control difficulties have been related more to irregular use of medication.” Record at 172. On June 16, 1982, Dr. Sigsbee noted, “I am not sure everything possible has been done to provide complete control of these seizures ____” Record at 184. On July 1, 1982, Dr. Sigsbee noted that the levels of both Dilantin and Phenobarbital in his blood were “subtherapeutic.” Id. On April 19,1983, however, Dr. Sigsbee stated:

I have no evidence that Mr. Bowker has, in any way, been noncompliant with his medications.
From a medical standpoint, he metabolizes these medications quickly and needs a substantially larger dose than most individuals. Once he is on this higher dose, he should maintain an adequate therapeutic level' and be protected against seizures.

Record at 254. Thus, Dr. Sigsbee, who has been the treating physician at least since January of 1982, was unable to conclude that the claimant was noncompliant with his prescribed treatment. Additionally, both the claimant and his wife testified that he had taken his medication as prescribed. Record at 60-61, 81-82. See also Affidavit of Debra Bowker, Record at 261. In light of Dr. Sigsbee’s observation that Plaintiff requires an unusually high dosage of medications to control his seizures and the uncontradicted assertions of Plaintiff and his wife, any possible inference that Plaintiff has been noncompliant is not supported by substantial evidence.

Should it become apparent, as Dr. Sigsbee predicted, that proper doses of medication will effectively control Plaintiff’s seizures, the Secretary may review the case and respond appropriately. However, in the absence of substantial evidence of noncompliance, Plaintiff’s claim for disability benefits should not be jeopardized where it is apparent that his physicians have had difficulty ascertaining the therapeutic level of medication required for this individual.

III.

Once the Appeals Council concluded that Plaintiff's impairment did not meet the Listings, it proceeded, as prescribed in the sequential analysis set forth in 20 C.F.R. § 404.1520, to evaluate Plaintiff’s residual functional capacity, id., § 404.1520(e), and his ability to do other work, id., § 404.-1520(f). The Council’s application of the regulations to the facts of this case was erroneous. Although Plaintiff suffers from diabetes and depression, the Appeals Council failed to make findings with respect to the effect of these impairments, in combination with the epilepsy, upon Plaintiff’s residual functional capacity. The Appeals Council made the following pertinent findings:

4. The claimant has the residual functional capacity to perform work-related functions except for work involving climbing, driving motor vehicles, operating or working around machinery or working at unprotected heights.
5. The claimant is unable to perform his past relevant work.
6. Considering the exertional limitations only, the claimant has the residual functional capacity for at least light work as defined in sections 404.1567 and 416.967.
7. The level of work the claimant can do in light of the exertional limitations is not significantly affected by the nonexertional limitations.
11. Based on the claimant’s exertional limitation only, section 404.1569 and 416.969 and Rule 202.17, Table No. 2 of Appendix 2, Subpart P, Regulations No. 4, direct a conclusion that the claimant, considering his residual functional capacity, age, education, and work experience, is not disabled.
12. The claimant’s nonexertional limitations do not significantly affect his residual functional capacity for light work and, therefore, considering that capacity within the framework of the above rule, the claimant is not disabled.

Record at 20.

Paragraphs 6, 7, 11 and 12, each relating to “exertional” limitations, are somewhat puzzling because none of the impairments alleged in this case are “exertional” within the meaning of the regulations. Epilepsy is clearly a nonexertional impairment. See 20 C.F.R. § 404.1545(d). Depression is a mental disorder. Finally, the record does not indicate that Plaintiff’s diabetes imposes strength limitations and that it is, therefore, an “exertional” impairment. Despite the absence of exertional limitations, the Appeals Council made a finding as to the extent of Plaintiff’s exertional limitations. The Council used this finding to make a determination of nondisability under the Medical-Vocational Guidelines, 20 C.F.R. § 404.1569, and Appendix 2, Rule 202.17. The Secretary’s regulations preclude the application of the Guidelines when an impairment is nonexertional. See 20 C.F.R. § 404.1569; Appendix 2, Rule 200(e); Gagnon v. Secretary of Health and Human Services, 666 F.2d 662 (1st Cir.1981); Stewart v. Heckler, 594 F.Supp. 590 (D.Me. 1984). The Secretary’s reliance upon the Guidelines in this case was clearly misplaced.

The Appeals Council also made an explicit finding that the claimant’s nonexertional impairments “do not significantly affect his residual functional capacity for light work.” The making of this finding, however, does not vitiate the prejudicial effect of the Appeals Council’s misguided application of the Medical-Vocational Guidelines. First, the application of the Guidelines reveals the Secretary’s confusion about the proper characterization of Plaintiff’s impairments as exertional or nonexertional; The Appeals Council never discussed which impairments it was classifying as exertional or nonexertional. Second, there is no assurance that the Secretary’s incorrect application of the Guidelines did not unduly influence the Council’s decision. Torres v. Secretary of Health and Human Services, 668 F.2d 67, 69 (1st Cir.1981).

The essential, compelling question in this case is the extent to which Plaintiff’s various illnesses impair his ability to hold a job that exists in the national economy. See 20 C.F.R. §§ 404.1520(f), 404.-1561. The Appeals Council lost sight of that question as it proceeded through the maze of regulations. The Secretary is required to “give full consideration to all relevant facts in accordance with the definitions and discussions under vocational considerations.” 20 C.F.R. § 404.1569. See 20 C.F.R. §§ 404.1560-1568. There is no hint in the decision of the Appeals Council that such consideration was given. The case must be remanded for proper application of the regulations with respect to the period from November 1, 1979, to January 1, 1982.

Accordingly, it is ORDERED:

(1) That the final decision of the Secretary is REVERSED, and it is ORDERED that the Plaintiff shall be awarded disability benefits and Social Security Insurance benefits commencing January 1, 1982;
(2) That the case is REMANDED to the Secretary for further consideration of Plaintiff’s eligibility for benefits prior to January 1, 1982, in accordance with this Memorandum of Decision and Order of Remand.

So ORDERED.

      . Because the Court has determined that Plaintiff met the criteria set forth in the Listing of Impairments beginning January 1, 1982, no further consideration of that period is required.


source: Caselaw Access Project

author: NANGLE, Chief Judge.

license: Public Domain

text:
    Cathy KUHLMEIER, Leslie Smart, Leanne Tippett v. HAZELWOOD SCHOOL DISTRICT, Charles Sweeney, Joseph Donahue, Gwen Gerhardt, August Busch, Jr., Ann Gibbons, James Arnac, Dr. Thomas Lawson, Robert E. Reynolds, Howard Emerson, and Dr. Francis Huss.
    No. 83-2039C(1).
    United States District Court, E.D. Missouri, E.D.
    Nov. 2, 1984.

      Leslie D. Edwards, B. Stephen Miller, III, American Civil Liberties Union, St. Louis, Mo., for plaintiffs.
    Robert P. Baine, Jr., Susan E. Kaiser, St. Louis, Mo., for defendants.
   MEMORANDUM

NANGLE, Chief Judge.

This case is now before this Court on defendants’ motion for summary judgment. Defendants argue that, because plaintiffs received a grade for their “Journalism II” class and because they graduated from Hazelwood East High School subsequent to filing their complaint in this action, plaintiffs’ claims for relief are now moot.

This case arises out of defendants’ refusal to publish certain articles in the May 13, 1983, issue of Spectrum, the student newspaper published by Hazelwood East High School. The facts and allegations underlying this action were summarized in this Court’s prior Order and Memorandum and need not be repeated herein. See Kuhlmeier v. Hazelwood School District, 578 F.Supp. 1286 (E.D.Mo.1984). Defendants contend, by way of a motion for summary judgment, that plaintiffs’ claims for relief are moot in view of the fact that all three (3) plaintiffs have now graduated from Hazelwood East High School.

Under Rule 56 of the Federal Rules of Civil Procedure, a movant is entitled to summary judgment if he can “show that there is no genuine issue as to any material fact and that [he] is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). See also Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962). In passing on a motion for summary judgment, a court is required to view the facts and inferences that may be derived therefrom in the light most favorable to the non-moving party. Butter v. Buechler, 706 F.2d 844, 846 (8th Cir.1983); Vette Co. v. Aetna Casualty and Surety Co., 612 F.2d 1076, 1077 (8th Cir.1980). The burden of proof is on the moving party and a court should not grant a summary judgment motion unless it is convinced that there is no evidence to sustain a recovery under any circumstances. Butter, 706 F.2d at 846. However, under Rule 56(e), a party opposing a motion for summary judgment may not rest upon the allegations of his pleadings but “must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). See also 10A Wright, Miller and Kane, Federal Practice and Procedure: Civil 2d, § 2739 (1983).

The mootness doctrine is derived from the requirement in Article III of the United States Constitution that the federal judicial power be exercised only in “cases or controversies.” U.S. Const, Art. III. The requirement of a case or controversy serves “two complementary” purposes. Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 1949, 20 L.Ed.2d 947 (1968). These purposes are, as follows:

It limits the business of federal courts to “questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process,” and it defines the “role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government.”

United States Parole Commission v. Geraghty, 445 U.S. 388, 396, 100 S.Ct. 1202, 1208, 63 L.Ed.2d 479 (1980), quoting Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 1949, 20 L.Ed.2d 947 (1968). A case is moot “when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1950, 23 L.Ed.2d 491 (1969); Carson v. Pierce, 719 F.2d 931, 933 (8th Cir.1983).

Defendants argue that plaintiffs’ claims for relief are moot because each of the plaintiffs has now graduated from Hazel-wood East High School and each received the highest grade possible for their work in “Journalism II.” Plaintiffs seek three (3) types of relief. First, plaintiffs seek a declaration by this Court that the alleged conduct of defendants violated plaintiffs’ rights under the first and fourteenth amendments to the U.S. Constitution. Second, plaintiffs pray for an injunction: 1) ordering defendants to print the articles in question; 2) enjoining defendants from engaging in their allegedly unlawful conduct; 3) requiring defendants to implement a plan and submit regulations that constitutionally govern the publication of student articles in Spectrum; and 4) preventing defendants from taking reprisals against plaintiffs with respect to this action. Finally, each plaintiff seeks compensatory damages of $5,000.00 and punitive damages of $25,000.00.

I. INJUNCTIVE RELIEF

In the opinion of this Court, plaintiffs’ graduation rendered their claims for injunctive relief moot. In Indianapolis School Commissioners v. Jacobs, 420 U.S. 128, 95 S.Ct. 848, 43 L.Ed.2d 74 (1975), several high school students brought an action challenging school regulations that governed the distribution of a student newspaper. Although each of the named plaintiffs had graduated from the high school by the time the case came to trial, the District Court ruled on the merits and held that the regulations were unconstitutional. On appeal to the Supreme Court certiorari was granted and the Court, in a per curiam opinion, vacated the District Court’s judgment and ordered that the complaint be dismissed on the ground of mootness. The Court explained its holding, as follows:

At oral argument, we were informed by counsel for petitioners that all of the named plaintiffs in the action had graduated from the Indianapolis school system; in these circumstances, it seems clear that a case or controversy no longer exists between the named plaintiffs and the petitioners with respect to the validity of the rules at issue. The case is therefore moot____

Id. at 129, 95 S.Ct. at 849 (emphasis added). See also Pasadena City Board of Education v. Spangler, 427 U.S. 424, 430, 96 S.Ct. 2697, 2702, 49 L.Ed.2d 599 (1976) (desegregation case moot as to named plaintiffs who had graduated from the school system), on remand, 549 F.2d 733 (9th Cir.1977). Other courts, in the context of a student’s civil rights action for injunctive relief against a school, have held that such a claim becomes moot on the student’s graduation from the school. See, e.g., Gibson v. DuPree, 664 F.2d 175, 176 (8th Cir. 1981) (student’s claim for injunctive relief against school’s attendance policy mooted by student’s graduation); Williams v. Spencer, 622 F.2d 1200, 1204 (4th Cir.1980) (claims for injunctive relief with respect to school’s seizure and restraint of student newspaper mooted by students’ graduation); Zeller v. Donegal School District Board of Education, 517 F.2d 600, 601 n. 1 (3d Cir. en banc 1975) (student’s claim for injunctive relief against school’s hair length requirement mooted by student’s graduation); Hollon v. Mathis Independent School District, 491 F.2d 92, 93 (5th Cir.1974) (students’ claim for injunctive relief against school rule banning married students from extracurricular activities mooted by their graduation); Truesdale v. District of Columbia, 436 F.2d 288, 290 (D.C.Cir.1970) (student’s claim for injunctive relief against local education statute mooted by his graduation); Zentgraf v. Texas A&M University, 509 F.Supp. 183, 186 (S.D.Tex.1981) (college students’ claim for injunctive relief mooted by graduation). Thus, the weight of authority supports a finding that plaintiffs’ claims for injunctive relief are moot.

Plaintiffs press several arguments on this Court in support of their position that their claims for injunctive relief were not mooted by their graduation. First, plaintiffs argue that their claims fall within the exception to the mootness doctrine for claims which are “capable of repetition, yet evading review ____” Southern Pacific Terminal v. Interstate Commerce Commission, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). In Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975), the Court identified two (2) requirements that must be met for the Southern Pacific exception to apply:

(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.

Id. at 149, 96 S.Ct. at 348 (emphasis added). See also Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 187, 99 S.Ct. 983, 990, 59 L.Ed.2d 230 (1979); First National Bank v. Bellotti, 435 U.S. 765, 774, 98 S.Ct. 1407, 1414, 55 L.Ed.2d 707 (1978). Assuming, without deciding, that the first requirement is met here, it is clear that the second requirement is not met. The “complaining part[ies]” in the case at bar are the three (3) named plaintiffs. Plaintiffs allege that Spectrum is published “as an adjunct to the school’s journalism curriculum.” First Amended Complaint, Count I at ¶ 7. Because plaintiffs have graduated, it is not possible that they will “be subjected to the same action again.” Plaintiffs argue that the father of plaintiff Smart has a son who may attend Hazelwood East High School and “be subjected to the same action again.” However, Mr. Smart’s son is not a party herein and Mr. Smart is suing only as a next friend. As a next friend, Mr. Smart is only a nominal part and his daughter is the real party in interest. 6 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 1548 at 673 (1971). See also Infants, 42 Am.Jur.2d § 161 (1969). Moreover, the minority of the named plaintiffs has expired and with it expired the authority of the next friends to represent them in this action. Infants, 42 Am.Jur.2d § 164 at 155 (1969). See Mo.Rev.Stat. § 507.115 (1978). Finally, plaintiffs’ reliance on Walsh v. Louisiana High School Athletic Association, 616 F.2d 152 (5th Cir.1980), is misplaced because in Walsh, the plaintiff parents brought suit individually as well as on behalf of their minor children. The parents in the case at bar brought suit only as the next friends of their named minor children.

Plaintiffs next argue that so-called “collateral consequences” of defendants’ action continue to prejudice plaintiffs Kuhlmeier and Tippett and that injunctive relief is needed to remedy said consequences. These consequences are vaguely referred to as “impaired educational and employment opportunity.” Memorandum Of Law In Opposition To Defendants’ Motion For Summary Judgment at 13. A review of plaintiffs’ complaint and the depositions of Kuhlmeier and Tippett-West, however, sheds some light on plaintiffs’ position. Plaintiff Kuhlmeier complains that because the articles in question, on which she did the layout work, were not published, she was unable to include them in her college portfolio or enter them in contests. Plaintiff Tippett-West complains that defendants’ conduct prevented her from entering the articles in contests and listing them on her resume.

The weakness in plaintiffs’ argument, however, is that plaintiffs fail to indicate how these consequences have adversely affected them. Plaintiff Tippett-West is currently in nursing school and apparently has no plans to pursue a career in journalism. It is not clear what plaintiff Kuhlmeier is currently doing, but nowhere does she state how the absence of these articles in her college portfolio has or will adversely affect her. With respect to contests, if this Court were to order defendants to publish the articles in question, said relief would not remedy the consequence because the contests that they were allegedly prevented from entering were limited to high school students. Plaintiffs are no longer high school students and therefore injunctive relief would not cure this “collateral consequence.”

Moreover, the cases relied on by plaintiffs in support of applying the “collateral consequences” exception to the mootness doctrine here, are easily distinguished. In both Hatter v. Los Angeles City High School, 452 F.2d 673, 674 (9th Cir.1971), and Jones v. Snead, 431 F.2d 1115, 1116 (8th Cir.1970), the student plaintiffs were subjected to disciplinary sanctions which they challenged as unconstitutional. Although the sanctions had been completed by the time the cases received judicial review, the students’ claims for injunctive relief were held not moot because collateral consequences, i.e., the existence of the discipline on the students’ records, continued to flow from the action taken and an injunction ordering the discipline expunged from the students’ records would remedy said consequences. Such is not the case here.

Plaintiffs next argue that their claims for injunctive relief are not moot because they, as members of the community served by Hazelwood East High School, “have an ongoing First Amendment right to contribute material for publication in and to receive information through Spectrum.” Memorandum Of Law In Opposition To Defendants’ Motion For Summary Judgment at 14. The factual basis for this alleged right is defendants’ statements that the Spectrum includes stories that are of interest to the patrons of the Hazelwood East community and that the Spectrum solicits suggestions and ideas for stories from the members of said community. The simple answer to plaintiffs’ argument is that, assuming they have such a right as members of the community, plaintiffs do not allege that said right was violated by defendants. From the start, plaintiffs alleged that defendants violated their rights as students to publish the articles in question. The right that plaintiffs assert in the instant argument is not a right of expression, but a right as members of the community to receive information or read articles on certain topics. See Seyfried v. Walton, 668 F.2d 214, 218-19 (3d Cir.1981) (distinction between first amendment freedom of expression and freedom to hear or receive information). Asserting such a new theory constitutes an amendment to their complaint and, at this late date, unfairly prejudices defendants who have discovered and prepared this case as a right of expression case. This Court will not allow plaintiffs to amend their complaint or change the right being asserted this late in the case and, therefore, plaintiffs’ “community standing” argument is rejected.

The final argument made by plaintiffs is that, because they challenge defendants’ policies with respect to Spectrum on overbreadth grounds under the first amendment, they have standing to raise the rights of third parties, such as present members of Spectrum who have not graduated. Plaintiffs rely on Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973), wherein the Supreme Court stated:

Litigants ... are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.

Id. at 612, 93 S.Ct. at 2915 (emphasis added). See also Secretary of State of Maryland v. Joseph H. Munson Company, Inc., _U.S. _, _, 104 S.Ct. 2839, 2847, 81 L.Ed.2d 786 (1984). Plaintiffs are correct that, under Broadrick, the normal prudential standing limitation against raising the rights of third persons, see In re Malone, 592 F.Supp. 1135 at 1153-1154 (E.D.Mo., 1984), does not apply in first amendment cases. However, plaintiffs confuse prudential standing limitations, which are not mandated by Article III, with the mootness doctrine, which is. A necessary prerequisite to application of Broadrick is that a “case or controversy exist.” See Village of Schaumburg v. Citizens For Better Environment, 444 U.S. 620, 634, 100 S.Ct. 826, 834, 63 L.Ed.2d 73 (1980) (“Given a case or controversy, a litigant whose own activities are unprotected may nevertheless challenge a statute by showing that it substantially abridges the First Amendment rights of other parties not before the court.”) (emphasis added). See also, Joseph H. Munson Company, Inc., — U.S. at-, 104 S.Ct. at 2847. In the case at bar, at least with respect to injunctive relief, plaintiffs no longer have a “live” case or controversy and, therefore, they may not assert the rights of others to obtain said relief.

Accordingly, this Court holds that plaintiffs’ claims for injunctive relief are moot, Defendants’motion for summary judgment in their favor is granted with respect to plaintiffs’ claims for injunctive relief and said claims are dismissed.

II. DAMAGES

Defendants also argue that plaintiffs’ damage claims are moot. Defendants spend much effort trying to establish that plaintiffs’ claims for actual damages and emotional distress damages are not viable. Although it appears that plaintiffs have suffered little, if any, actual damage and that plaintiffs’ alleged emotional distress may not have been caused by the named defendants, this Court need not determine the merits of said damage claims because the availability of nominal and punitive damages prevents plaintiffs’ damage claims from being moot.

Nominal and punitive damages are recoverable in an action under 42 U.S.C. § 1983 without proof of actual damage. Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983); Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). Therefore, even though plaintiffs have graduated, their viable. claims for nominal and punitive damages satisfy the “case or controversy” requirement of Article III. Gibson v. DuPree, 664 F.2d 175, 177 (8th Cir.1981); Truesdale v. District of Columbia, 436 F.2d 288, 290 (D.C.Cir. 1970); Lavin v. Chicago Board of Education, 73 F.R.D. 438, 440 (N.D.Ill.1977).

Accordingly, defendants’ motion for summary judgment is denied with respect to plaintiffs’ damage claims. In addition, although it seems unlikely that plaintiffs can prove actual damages, including damages for emotional distress, this Court is not convinced that there is no evidence to sustain such a recovery under any circumstances.

III. DECLARATORY RELIEF

The viability of plaintiffs’ damage claims prevents their claim for declaratory relief from being moot. 28 U.S.C. § 2201. Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). Accordingly, defendants’ motion is also denied with respect to plaintiffs’ claim for declaratory relief.

      . An alternative reason for rejecting plaintiffs’ last argument is that plaintiffs have, from the start, sought injunctive relief for the violation of their own first amendment rights and have never, until now, attempted to assert the rights of third parties. See First Amended' Complaint, Count I, ¶ 17. See also Deposition of Leanne Tippett-West at 15-16. This Court will not allow plaintiffs to change their basis for injunctive relief at this late date.


author: KANE, District Judge.

text:
    LOWELL STAATS MINING COMPANY, INC., Plaintiff, v. PIONEER URAVAN, INC., Defendant.
    Civ. A. No. 82-K-2039.
    United States District Court, D. Colorado.
    Nov. 2, 1984.

      William G. Waldeck, Joseph C. Coleman, Dufford, Waldeck, Ruland, Wise & Mil-burn, Grand Junction, Colo., for plaintiff.
    Gregory K. Hoskin, Theodore Allegra, Nelson, Hoskin, Groves & Prinster, Grand Junction, Colo., for defendant.
   MEMORANDUM OPINION AND ORDER

KANE, District Judge.

During the late spring and summer of 1978, representatives of Pioneer Uravan, Inc. entered into negotiations with Lowell Staats Mining Company, Inc., an independent mining contractor, regarding mine development and mining on certain property owned by Pioneer located in Mesa County, Colorado and Grand County, Utah. The negotiations culminated in a Mine Development and Ore Mining Contract between the parties dated September 15, 1984. The contract provided for Staats to construct a decline mine shaft and perform related mine development work on Pioneer’s property. Upon completion of the development work, Staats would mine uranium and vanadium ore on behalf of Pioneer. The contract provided for an initial term of three years, expiring on September 15, 1981. Thereafter, the contract was to continue on a year to year basis unless terminated by either party on six months prior written notice. In March, 1981, Pioneer elected to terminate the Contract at the end of the initial three year term. Accordingly, Pioneer sent written notice to Staats of the termination. Staats received the notice on March 10, 1981.

Staats’ amended complaint alleges two types of claims through six separate claims for relief. The first and second claims for relief allege that Pioneer wrongfully terminated the contract. The remaining claims allege various breaches by Pioneer through its failure to perform or its inadequate performance of its obligations under the contract.

The amended complaint seeks only damage remedies but Staats has also filed a lis pendens providing notice of this action allegedly involving judicial determination of rights affecting an interest in certain real property.

Before me now are Pioneer’s motion for summary judgment as to the first and second claims for relief of the amended complaint and Pioneer’s motion to release the notice of the lis pendens. The issues have been extensively briefed by both sides and oral argument would not add to the delineation of the issues.

MOTION FOR SUMMARY JUDGMENT

Pioneer argues that its notice of termination complied with the requirements of the contract and, therefore, Staats has no cause of action for premature termination. The relevant portion of the contract provides:

3. (e) Unless terminated as herein provided, this Agreement shall continue for a three (3) year period, beginning Sept. 15, 1978, and ending Sept. 15, 1981, and shall thereafter continue on a year to year basis; after the initial three (3) year period, either party shall have the right of termination on six (6) months prior written notice to the other party.

Staats argues that this termination clause is ambiguous; its meaning not appropriately determined on a motion for summary judgment. Moreover, Staats argues that rules of construction compel a finding that the contract precludes any termination notice before September 15, 1981 and in fact requires that the contract continue through the first yearly extension.

Staat's allegations as to the correct construction of the contract must be examined in the light of well-established principles of contract law as applied in Colorado. The primary purpose of construing and interpreting a written agreement is to ascertain the intent of the parties, which is to be determined primarily from the language of the instrument itself. See Harrison Western Corp. v. Gulf Oil Co., 662 F.2d 690, 694-95 (10th Cir.1981); Ader v. Hughes, 570 F.2d 303, 309 (10th Cir.1978). The express provisions of a document should not be rewritten merely because of the contrary assertions of a party to the agreement. See Griffin v. United Bank of Denver, 198 Colo. 239, 599 P.2d 866, 868 (1979). Rather, I must enforce an unambiguous contract as written and in accordance with its terms. See, e.g., People v. Johnson, 618 P.2d 262, 266 (Colo.1980); Jameson v. Foster, 646 P.2d 955, 958 (Colo.App.1982).

In construing instruments to determine their meaning, I am also guided by a number of established rules. The prime objective is to ascertain the intention of the parties from the plain and generally accepted meaning of the words used from the language of the agreement. See Ader v. Hughes, supra; Cave Constr., Inc. v. United States, 387 F.2d 760, 762 (10th Cir. 1967). See also Griffin v. United Bank of Denver, supra; Radiology Professional Corp. v. Trinidad Area Health Ass’n, Inc., 195 Colo. 253, 577 P.2d 748, 750-51 (1978). I must avoid a construction which is unreasonable or absurd, and should be hesitant to imply conditions or terms which result in a breach. See Sunshine v. M.R. Mansfield Realty, Inc., 195 Colo. 95, 575 P.2d 847, 849 (1978); Bator v. Mines Development, Inc., 32 Colo.App. 320, 513 P.2d 220, 225 (1973). Where, as here, the evidence of agreement between the parties consists of an unambiguous document, the determination of the meaning and effect of its provisions is a question of law for the Court, proper for resolution by summary judgment. See, e.g., Harrison Western Corp. v. Gulf Oil Co., supra; Resort Car Rental System, Inc. v. Chuck Ruwart Chevrolet, Inc., 519 F.2d 317, 320 (10th Cir.1975); Eastern Tunneling Corp. v. Southgate Sanitation District, 487 F.Supp. 109, 112 (D.Colo. 1980); Radiology Professional Corp. v. Trinidad Area Health Ass’n, supra, Martynes and Associates, No. 1 By Martynes v. Devonshire Square Apartments, 680 P.2d 246, 249 (Colo.App.1984).

While paragraph 3(e) of the contract could have been more artfully drafted, its meaning and import are clear. The analysis advanced by Staats relies upon strained interpretations of language and grammar. To view paragraph 3(e) as requiring an initial term longer than three years would eviscerate the plain meaning of the contract.

This is not a situation where the terms of the agreement need be applied against the party responsible for drafting the agreement. See, e.g., Christmas v. Cooley, 158 Colo. 297, 406 P.2d 333, 335 (1965). Such analysis should only be applied as a last resort. Here, however, the meaning of the document is clear. See Quad Constr. Co. v. Wm. A. Smith Contracting Co., 534 F.2d 1391, 1394 (10th Cir.1976). Moreover, neither party is a stranger to the business world or to transactions such as the one into which they entered. Staats had full opportunity to review the contract prior to signing it. In fact, Staats attorney Thomas Harshman was concerned with the initial language of paragraph 3(e) and suggested modifications which were made.

Staats also argues that the provisions in paragraph 3(e) were intended for Staats benefit and should, accordingly, be interpreted for the benefit of the party for whose protection they were inserted. Christmas v. Cooley, supra. The contract, however, gives benefits to both sides, allowing either party the option to terminate. Paragraph 3(e), when drafted, was not clearly designed for the protection of Staats. Hence there is no justification for balancing the interpretation in Staats’ favor.

Paragraph 3(e) was clearly intended to allow termination by either party upon six months prior notice, provided that said termination would not occur before September 15, 1981. This is the unambiguous and plain meaning of the language of the contract.

Finally, Staats argues that various other breaches of the contract by Pioneer preclude allowing termination of the contract on September 15, 1981. By this argument Staats seeks to bolster its first and second claims for relief with the facts and legal theories underlying the third through sixth claims for relief. Claims one and two, however, deal specifically with Pioneer’s termination and the validity of Pioneer’s exercise of that right. Trying to bootstrap all of the claims together is inconsistent with the claims presented in the amended complaint. Other claims of breach of contract are irrelevant to Pioneer’s motion for summary judgment which focuses only upon the first two claims asserted in the amended complaint.

Staats correctly notes that if Pioneer’s alleged breaches go to the essence of the contract then the affect of Pioneer’s attempted termination will be constrained. Thus, Corbin has suggested that:

a party who has reserved a power of termination loses that power if he himself commits such a breach as goes to the essence and discharges the other party. A subsequent notice of termination has no effect upon the other party’s right to full damages for the existing total breach. However, one who commits a partial breach that does not discharge the other party from his contractual obligation does not thereby extinguish his power of termination that is expressly reserved.

6 A. Corbin, CORBIN ON CONTRACTS § 1266, at 68-69 (2d ed. 1962). See also Concrete Specialities, Inc. v. Smith Constr. Co., 423 F.2d 670 (10th Cir.1970). This argument, however, goes to the amount of damages Staats may recover on the third through sixth claims for relief. It has nothing to do with the proper interpretation of the termination clause which is alleged in the first and second claims. Thus, if Pioneer’s breaches, as alleged in the third through sixth claims for relief, go to the essence of the contract then Staats damages may include losses which arose over the course of the entire contract including the extensions. Pioneer could not minimize the damages it could owe to Staats by seeking to terminate the contract. Logically, however, breach of contract claims are independent of the issue of interpreting the termination clause as raised in the first and second claims and addressed in Pioneer’s motion for partial summary judgment.

The motion for partial summary judgment is granted.

REMOVAL OF LIS PENDENS

Colorado law as applied by this court pursuant to 28 U.S.C. § 1964, provides:

(1) Filing and Notice. Only after filing any pleading wherein the affirmative relief is claimed affecting the title to real property, a party may record in the office of the clerk and recorder of the county in which the property is situated a notice of lis pendens____

Colo.R.Civ.P. 105(f). When a plaintiffs complaint seeks only money damages and no affirmative relief affecting the title, possession, use or enjoyment of any property then a trial court can order the release of a lis pendens related to the complaint filed in that court. See Peoples Bank & Trust Co. v. Packard, 642 P.2d 57 (Colo.App.1982).

With the exception of a generalized claim for “such additional relief as this Court deems just and proper,” Staats’ amended complaint seeks solely monetary damages. Although a court may, in its sound discretion, award equitable relief in the face of pleadings seeking only monetary relief, such generalized pleadings are insufficient to support the filing of a lis pendens. See Blazer v. Black, 196 F.2d 139, 147 (10th Cir.1952); Peoples Bank & Trust Co., supra. Particularized pleadings affecting real property are necessary to permit the encumberance of property by a lis pendens prior to adjudication of the claimants rights.

Staats argues that a restrictive view of the pleadings required by Colo.R.Civ.P. 105(f) is inconsistent with federal notice pleading and judicial remedies incorporated in Fed.R.Civ.P. 8 and 54. Such reliance on state procedural rules, claims Staats, is inconsistent with the doctrine requiring that federal rules guide federal proceedings. See Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965). Staats suggests that 28 U.S.C. § 1964 restricts reliance on state procedures to the statutory provisions creating lis pendens and that federal law does not include the procedural implementation of that statute.

Staats’ argument carries little weight. First, 28 U.S.C. § 1964 specifically adopts state law, not just state statutes, as the method for filing a lis pendens relating to actions filed in federal court. The federal statute requires that, “... State law must be complied with in order to give constructive notice of such an action pending in a United States district court as it relates to real property in such State.” 28 U.S.C. § 1964. Thus, federal law can incorporate state procedural mechanisms providing for lis pendens. Second, Colo.R.Civ.P. 105(f) is not inconsistent with Fed.R.Civ.P. 8 and 54. Requiring particularized pleading of a claim relating to real property as a requisite to the filing of a lis pendens does not affect the ultimate remedies which a federal court can award. The, adoption of Colo. R.Civ.P. 105(f) does not conflict with federal control of federal court procedures or remedies, nor does it abrogate control of federal courts to state laws, save to the extent mandated by the federal statute itself.

Finally, the state statute providing for lis pendens only makes general provision for lis pendens. It establishes no procedures for such filings. If the procedures established in Colo.R.Civ.P. 105(f) are not adopted for lis pendens relating to federal civil suits then not only would federal releases pursuant to Rule 105(f) be improper, but the initial filings pursuant to that rule would also be improper. Thus, if Rule 105(f) cannot be adopted by this court then the original lis pendens filed by Staats is without authority and must be released.

In the final analysis, federal law requires the adoption of relevant state statutes and procedural rules dealing with the filing of lis pendens. As such, according to Colorado law, a lis pendens can only be filed if it relates to a lawsuit specifically alleging some claim to real property. Here Staats asserts no such claim and the lis pendens must be released.

My findings herein may directly affect Magistrate Clifton’s ruling granting plaintiff leave to amend its complaint to add specific performance as a prayer for relief. Staats shall respond to Pioneer’s motion for reconsideration of the magistrate’s decision, filed October 29, 1984, on or before November 13, 1984. Pioneer may reply on or before November 23, 1984.

IT IS THEREFORE ORDERED that the defendant’s motion for partial summary judgment is granted. It is further ordered that the lis pendens filed in connection with this lawsuit shall be released.

      . At a hearing on October 19, 1984, Magistrate Clifton granted plaintiffs motion to further amend its complaint to add specific performance as a prayer for relief. No such amendment has been filed. The mere possibility that a claim for relief might be filed cannot support a lis pendens.

      . Staats’ Memorandum Brief in Opposition to Pioneer Uravan’s motion for summary judgment, filed August 23, 1984, totals 24 pages and is far longer than needed to address the issues presented in Pioneer’s motion. The brief is an example of the pleading practice sought to be eliminated by Local Rule 408C. Accordingly, Pioneer Uravan has requested that I consider the imposition of sanctions authorized by 28 U.S.C. § 1927 for excessive and prolix briefs. I reserve judgment on this request.

      . The parties agree as to Harshman’s role in negotiating the contract. Beyond this, Pioneer also refers to a letter from Harshman and his deposition, which indicate Staats’ acquiescence to Pioneer’s interpretation of paragraph 3(e).
      The latter evidence was not properly presented to the court and cannot support the motion for partial summary judgment. See Holloway v. John E. Smith’s Sons Co., 432 F.Supp. 454, 456 (D.S.C.1977).

      . 28 U.S.C. § 1964 provides:

        Constructive notice of pending actions
      Where the law of a State requires a notice of an action concerning real property pending in a court of the State to be registered, recorded, docketed, or indexed in a particular manner, or in a certain office or county or parish in order to give constructive notice of the action as it relates to the real property, and such law authorizes a notice of an action concerning real property pending in a United States district court to be registered, recorded, docketed, or indexed in the same manner, or in the same place, those requirements of the State law must be complied with in order to give constructive notice of such an action pending in a United States district court as it relates to real property in such State.

      . Colo.Rev.Stat. § 38-35-110 (1982 Replacement Volume) provides:
      Lis pendens as notice, when sufficient. The filing of notice of pendency of an action in compliance with law shall from the time of the filing thereof be notice to all persons who may subsequently acquire any right, title, interest, or estate in and to the real property described in such notice from any grantor or from any source whatsoever.


author: MELTON, District Judge.

text:
    Timothy C. PALMES, Petitioner, v. R.L. DUGGER, Superintendent, Florida State Prison, et al., Respondents.
    No. 84-1280-Civ-J-12.
    United States District Court, M.D. Florida, Jacksonville Division.
    Nov. 4, 1984.

      Thomas B. McCoun, III, Louderback, McCoun & Helinger, St. Petersburg, Fla., for petitioner.
    Jim Smith, Atty. Gen., State of Fla., Carolyn M. Snurkowski, Asst. Atty. Gen., Dept, of Legal Affairs, Miami, Fla., for respondents.
   OPINION AND ORDER DENYING SUCCESSIVE PETITION FOR WRIT OF HABEAS CORPUS

MELTON, District Judge.

This cause is before the Court on a successive Petition for Writ of Habeas Corpus, filed herein on November 2, 1984, by TIMOTHY CHARLES PALMES, a death-row inmate at Florida State Prison. On November 3,1984, respondents filed a response to said petition. On the same day, the Court heard oral argument on all of the grounds raised in the petition. After extensively reviewing the entire record herein, and after carefully considering argument of counsel for the respective parties, the Court is of the opinion that the petition should be denied.

PROCEDURAL HISTORY

On October 28, 1976, petitioner was indicted for the first-degree murder of James Stone in Duval County, Florida, and on April 8, 1977, petitioner was convicted of that crime. Petitioner waived his right to an advisory sentencing jury, and the trial judge imposed the death sentence on June 22, 1977. The Florida Supreme Court affirmed petitioner’s judgment and sentence in Palmes v. State, 397 So.2d 648 (Fla.1981) [hereinafter Palmes I], and the United States Supreme Court denied a petition for writ of certiorari in Palmes v. Florida, 454 U.S. 882, 102 S.Ct. 369, 70 L.Ed.2d 195 (1981).

On May 18, 1982, the Governor of Florida signed a death warrant ordering petitioner’s execution during the week commencing June 14,1982, and ending June 21, 1982. On June 7, 1982, petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody [hereinafter Original Petition] with this Court and requested a stay of execution. Petitioner asserted, as his sole ground for relief, the allegedly improper use of nonrecord materials by the Florida Supreme Court in reviewing the cases of death-row inmates. In an order dated June 11, 1982, this Court stayed petitioner’s execution. This Court also denied the Original Petition with leave to file an amended petition raising all additional constitutional claims.

On August 11, 1982, petitioner filed his Amended Petition for Writ of Habeas Corpus by a Person in State Custody [hereinafter Amended Petition], By order dated September 17, 1982, this Court directed petitioner to return to state court to exhaust his state remedies. Pursuant to Fla.R. Crim.P. 3.850, petitioner filed a Motion to Vacate Judgment and Death Sentence [hereinafter First 3.850 Motion] on September 17, 1982. Florida Circuit Court Judge Thomas D. Oakley, Jr., held a hearing on October 15, 1982, on petitioner’s First 3.850 Motion and on the same date denied the motion [hereinafter First 3.850 Order]. The denial of the Rule 3.850 Motion was affirmed by the Florida Supreme Court on January 6, 1983, in Palmes v. State, 425 So.2d 4 (Fla.1983) [hereinafter Palmes II].

On January 25,1983, petitioner filed with this Court his Second Amended Petition for Writ of Habeas Corpus by a Person in State Custody [hereinafter Second Amended Petition], raising eleven claims. In an order entered on August 11,1983, the United States Court of Appeals for the Eleventh Circuit [hereinafter Eleventh Circuit] affirmed this Court’s denial of the Second Amended Petition. Palmes v. Wainwright, 725 F.2d 1511 (11th Cir.1984). The United States Supreme Court denied a petition for writ of certiorari on October 1, 1984. Palmes v. Wainwright, — U.S. _, 105 S.Ct. 227, 83 L.Ed.2d 156 (1984). A Petition for Rehearing, an Application for Suspension of the Order Denying Certiorari, and an Application for Stay of Execution were denied by the United States Supreme Court on October 29, 1984. Palmes v. Wainwright, — U.S.-, 105 S.Ct. 374, 83 L.Ed.2d 310 (1984).

On October 9, 1984, the Governor of Florida signed a death warrant ordering petitioner’s execution during the week commencing November 1, 1984, and ending November 8, 1984. On October 30, 1984, petitioner filed in the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, the following three motions: Motion to Vacate Sentence, pursuant to Fla.R.Crim.P. 3.850 [hereinafter Second 3.850 Motion]; Motion for Evidentiary Hearing; and Application for a Stay of Execution. Florida Circuit Court Judge Virginia Q. Beverly heard oral argument on petitioner’s motions on October 31, 1984 [hereinafter Second 3.850 Hearing], and denied the motions in an order entered on November 1, 1984 [hereinafter Second 3.850 Order],

On October 30,1984, petitioner filed Petition for Writ of Habeas Corpus with the Florida Supreme Court. On November 2, 1984, the Florida Supreme Court heard argument of counsel both on the Petition for Writ of Habeas Corpus and on the appeal from the Second 3.850 Order. On the same day, the Florida Supreme Court denied relief on the Petition for Writ of Habeas Corpus and affirmed the Second 3.850 Order. Palmes v. Wainwright, 460 So.2d 362 (Fla.1984) [hereinafter Palmes III].

Petitioner filed the instant successive petition [hereinafter Successive Petition] with this Court at 2:47 p.m. on November 2, 1984, together with a motion for leave to proceed in forma pauperis, an emergency application for stay of execution, and supporting memoranda and documents.

GROUNDS FOR RELIEF

I. THE DENIAL OF DUE PROCESS

In his first claim, petitioner argues that he was denied due process when the prosecutor failed to disclose promises and/or threats made to state’s witness, Jane Albert. Petitioner concedes that the grant of immunity given Albert, a participant in the murder scheme, was made known to the jury by both the prosecution and defense. Trial Transcript at 302, 476-78. Petitioner alleges that the prosecutors or law enforcement personnel threatened Albert that if she refused to testify she could lose custody of her daughter. Petitioner also contends that the prosecutor failed to disclose the fact that Albert was promised a new identity and relocation in exchange for her testimony against petitioner. Both the trial court and the Florida Supreme Court rejected this claim after considering the issue on its merits. Second 3.850 Hearing; Palmes III.

This Court is of the opinion that presentation of this new claim in a successive habeas corpus petition constitutes an abuse of the writ under Rule 9(b), Rules Governing Section 2254 Cases in the United States District Courts [hereinafter Rule 9(b)]. Rule 9(b) codifies Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), where the Supreme Court recognized that while res judicata is inapplicable to habeas corpus proceedings, federal courts are not powerless to protect themselves from harassing and repetitive petitions. Id. at 7, 83 S.Ct. at 1072. The Supreme Court recently recognized that

[a] pattern seems to be developing in capital cases of multiple review in which claims that could have been presented years ago are brought forward — often in a piecemeal fashion — only after the execution date is set or becomes imminent. Federal courts should not continue to tolerate — even in capital cases — this type of abuse of the writ of habeas corpus.

Woodard v. Hutchins, — U.S.-, 104 S.Ct. 752, 753, 78 L.Ed.2d 541 (1984) (Burger, C.J., Powell, Blackman, Rehnquist, O’Connor, JJ., concurring).

Under Rule 9(b), a successive habeas corpus petition may be dismissed in either of two situations: (1) where petitioner’s claim is not based on new or different grounds and there was a prior determination of the claim on the merits; or (2) where petitioner’s claim is based on new or different grounds, but failure to assert those grounds in an earlier petition constitutes an abuse of the writ.

The doctrine of abuse of the writ is applicable only to the second situation where a new or different claim is asserted. Once the state alleges abuse of the writ, the petitioner has the burden of showing that his failure to raise the new claim earlier was not a result of deliberate withholding or inexcusable neglect. In re Shriner, 735 F.2d 1236, 1240 (11th Cir.1984). If the petitioner presents a “justifiable reason” for failing to raise the claim earlier, a reason which makes it “fair and just for the trial court to overlook the delay”, the court should address the merits of the successive petition. Price v. Johnston, 334 U.S. 266, 291, 68 S.Ct. 1049, 1063, 92 L.Ed. 1356 (1948). See also Potts v. Zant, 638 F.2d 727, 741 (5th Cir.1981) (Unit B), cert. denied, 454 U.S. 877, 102 S.Ct. 357, 70 L.Ed.2d 187 (1981).

With regard to petitioner’s first claim, the Court concludes that petitioner has failed to present a justifiable reason for not presenting this claim in any of his earlier habeas corpus petitions. Petitioner argues that because he only recently learned of the facts of the undisclosed alleged promises and/or threats made to Albert, he was not inexcusably neglectful for failing to raise this claim earlier. This Court is of the opinion, however, that petitioner had ample opportunity to discover and raise this claim earlier, and the failure to do so was inexcusable neglect. At trial, defense counsel knew about the grant of immunity given Albert and made that fact known to the jury. Trial Transcript at 476-78. Trial counsel could have then asked Albert whether any additional threats or promises had been made to her in exchange for her testimony. On direct appeal, counsel could also have made inquiries of Albert as to whether any additional promises or threats had been made. Petitioner again had the opportunity to investigate and present this claim in prior habeas corpus petitions, but failed to do so. It was only with the signing of petitioner’s second death warrant, that petitioner’s sister, Ms. Watts, telephoned Albert to inquire whether any promises or threats had been made to induce her to testify at petitioner’s trial. There is nothing to suggest that Albert would have responded differently if a similar inquiry had been made at the time of the earlier habeas corpus petitions. Thus petitioner’s failure to raise this claim earlier was inexcusable neglect and constitutes an abuse of the writ. Even if this claim were not precluded under the doctrine of abuse of the writ, the Court would conclude that no due process violation resulted from the prosecutor’s failure to disclose to petitioner the promises and threats made to Albert. For purposes of this discussion, the Court will assume that the allegations contained in the sworn statement of Ms. Watts are true. See Deposition of Rosalyn Watts, Oct. 25, 1984.

Under Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963), suppression of material evidence favorable to petitioner upon request violates due process. The Supreme Court in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), defined the standard of “materiality” as it applied in three situations, two of which are relevant here. First, when a specific discovery request is made, giving the state notice of exactly what defendant desires, the prosecutor’s failure to respond warrants a new trial if the suppressed evidence “might have affected the outcome of the trial.” Id. at 104, 96 S.Ct. at 2398. When only a general request for exculpatory material is made and the prosecutor does not disclose such evidence, constitutional error occurs only if the suppressed evidence “creates a reasonable doubt that does not otherwise exist.” Id. at 112, 96 S.Ct. at 2402.

In his original demand for discovery, petitioner requested “[a]ny material information which the State has within its possession or control which tends to negate the guilt of the accused as to the offense charged.” See Transcript of Record of the Florida Supreme Court, Palmes I, vol. 1 at 4. This discovery request was general in nature because it did not give the prosecutor notice of exactly what the defense was seeking. Agurs, 427 U.S. at 104, 96 S.Ct. at 2397. Under the latter standard, then, there was no due process violation because the suppressed evidence of threats and promises to Albert did not create a reasonable doubt that did not otherwise exist as to her credibility. The jury already knew that Albert was just as guilty as petitioner in the murder scheme, see Trial Transcript at 1032, and that she had been given a grant of immunity to testify. This grant of immunity freed Albert from the threat of life imprisonment or the death penalty and enabled her to retain custody of her daughter. The Court discerns little difference between the promise of immunity if Albert agreed to testify and a threat to take away custody of Albert’s daughter if Albert refused to testify. Thus the Court agrees with the Florida Supreme Court’s conclusion that disclosure of this information “would only have added marginally to the defendant’s ability to impeach the witness and was not material to the fundamental question of guilt or innocence.” Palmes III at 4.

Finally, petitioner relies on Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1971), for the proposition that due process requires a new trial in this case. The Court concludes, however, that Giglio is factually distinguishable from this cause. In Giglio, a new trial was required when the state’s sole witness linking petitioner with the crime falsely testified that he received no promise of immunity. The government in Giglio did not correct the witness’ false statement.

In this case, however, there have been no allegations that Albert gave false testimony to the jury; indeed, she admitted that the only reason she was testifying was because she had been given immunity. Trial Transcript at 302, 476-78. Moreover, Albert was not the only witness who linked petitioner to the crime. Her daughter, who was present at the scene of the murder, also testified against petitioner. Id. at 617-42. In addition, the jury heard evidence of petitioner’s pretrial confession to the crime, which confession petitioner later recanted at trial.

II. DISMISSAL OF A JUROR DURING TRIAL

Petitioner asserts in claim two that he was denied his sixth, eighth and fourteenth amendment rights by the court’s dismissal of a juror during the trial. The Court is of the opinion that presentation of this new claim in a successive habeas corpus petition is an abuse of the writ under Rule 9(b). See Antone v. Dugger, — U.S.-, 104 S.Ct. 962, 964, 79 L.Ed.2d 147 (1984); Woodard v. Hutchins, 104 S.Ct. at 753; Sanders v. United States, 373 U.S. at 17-19, 83 S.Ct. at 1078-1079.

Petitioner concedes that this claim is based on facts which were in existence and known to petitioner at the time the earlier habeas petitions were filed. Successive Petition at 18-19. Petitioner contends, however, that this “colorable constitutional claim” arose, subsequent to the earlier petitions, only after the decision of the Eleventh Circuit in Green v. Zant, 715 F.2d 551 (11th Cir.1983). The Court notes that there is case law prior to Green v. Zant which supports the right to challenge a trial court’s dismissal of a juror. See, e.g., United States v. Rodriguez, 573 F.2d 330, 332 (5th Cir.1978) (trial court’s dismissal of a juror without factual support is prejudicial to defendant); United States v. Smith, 550 F.2d 277, 285 (5th Cir.1977). The decision in Green v. Zant does not change previously existing law; it merely expounds on the scope of inquiry a trial court should make before dismissing a juror. Because petitioner has not presented a justifiable reason for failing to assert this claim earlier, petitioner’s second claim should be dismissed as an abuse of the writ.

Even if presentation of this claim in the instant successive petition were not an abuse of the writ, petitioner is barred from raising this issue in a federal habeas corpus proceeding, absent a showing of cause for and prejudice from the procedural default. See Wainwright v. Sykes, 433 U.S. 72, 89, 97 S.Ct. 2497, 2507, 53 L.Ed.2d 594 (1977); Ford v. Strickland, 696 F.2d 804, 816 (11th Cir.1983) (en banc). Unlike Green v. Zant, 715 F.2d at 555, or Peek v. Kemp, 746 F.2d 672, at 681, (11th Cir.1984), the juror in petitioner’s ease was not dismissed during jury deliberations nor did the court fail to question the juror as to her capacity to continue. See Trial Transcript at 450-53. Petitioner has not shown any actual prejudice resulting from the replacement of this juror which affected his conviction. See Smith v. Kemp, 715 F.2d 1459, 1470-72 (11th Cir.), cert. denied, — U.S. -, 104 S.Ct. 510, 78 L.Ed.2d 699 (1983). In addition, petitioner cannot show cause for failing to comply with the state procedural rule. As previously stated, there has not been any change in the law resulting from the decision in Green v. Zant; therefore, this alleged error could have been objected to at trial and could have been raised on appeal. Because petitioner cannot show cause for or prejudice from this default, he is now barred from raising this issue.

III. EXCLUSION OF GENERAL PUBLIC FROM TRIAL DURING TESTIMONY OF STEPHANIE ALBERT

Petitioner’s third claim is that he was denied his sixth and fourteenth amendment rights to a public trial by the exclusion of the general public during the testimony of witness Stephanie Albert. This Court is of the opinion that presentation of this claim in the instant successive habeas corpus petition constitutes an abuse of the writ under Rule 9(b). See Woodard v. Hutchins, 104 S.Ct. at 753.

Petitioner has not offered this Court a justifiable reason for his failure to raise this claim earlier. Petitioner does not attempt to justify his failure to raise this claim earlier by alleging that he has reeently discovered facts which were previously unknown; instead, petitioner contends that a change in the law since the earlier petitions excuses his failure to raise this claim in an earlier petition. See Successive Petition at 53-54; Transcript of- Hearing on Successive Petition on Nov. 3, 1984, at 46-49 [hereinafter Successive Petition Hearing]. In the instant petition, however, petitioner relies on Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979), and on the dissenting opinion of Justice England in Douglas v. State, 328 So.2d 18, 22 (Fla.), cert. denied, 429 U.S. 871, 97 S.Ct. 185, 50 L.Ed.2d 151 (1976). See Successive Petition at 53-54, 56. Both Gannett and Douglas were decided prior to petitioner’s filing of the Original Petition on June 7, 1982, his Amended Petition on August 11,1982, and his Second Amended Petition on January 25, 1983. The right to a public trial was not a newly-developed or novel issue when petitioner filed his previous petitions in this Court. Therefore, the Court finds that petitioner’s failure to present this claim in a prior petition was the result of inexcusable neglect and that petitioner’s third claim should be dismissed as an abuse of the writ.

Even if petitioner had met his burden of showing that his failure to raise the third claim in an earlier petition was not the result of neglect, petitioner’s trial counsel made no objections at trial to this alleged error, see Trial Transcript at 596; further, this issue was not raised on direct appeal to the Florida Supreme Court. Consequently, this claim is barred from review in a federal habeas corpus proceeding, absent a showing of cause for and prejudice from the procedural default. See Ford v. Strickland, 696 F.2d at 816-17. Petitioner contends that his failure to object to or appeal from the trial court’s decision, to exclude the general public from the trial is excusable because of the adverse ruling in Douglas. The Florida Supreme Court’s holding in Douglas, a case in which the general public was excluded during a rape victim’s testimony, did not preclude petitioner from objecting to or appealing from the trial court’s decision to exclude the general public from a child’s testimony in a homicide case. The interests favoring the exclusion of the public from a rape victim’s testimony are different from those favoring the exclusion of the general public in petitioner’s trial. See, e.g., United States v. Sielaff, 561 F.2d 691 (7th Cir.1977), cert. denied, 434 U.S. 1076, 98 S.Ct. 1266, 55 L.Ed.2d 782 (1978). The right to a public trial is a fundamental constitutional right, and was not a novel claim at the time of petitioner’s trial and direct appeal. See Douglas, 328 So.2d at 22 (England, J., dissenting). Petitioner has therefore not demonstrated cause for this default, and petitioner is now barred from raising this issue.

IY. JURY INSTRUCTION ON LESSER INCLUDED OFFENSES

In his fourth claim, petitioner contends that the instruction to the jury of all lesser included offenses of homicide leads to arbitrary and capricious results and thereby violates petitioner’s eighth and fourteenth amendment rights. This Court is of the opinion that petitioner’s raising this claim in this successive petition constitutes an abuse of the writ under Rule 9(b). See Woodard v. Hutchins, 104 S.Ct. at 753.

Petitioner has not presented this Court with a justifiable reason for his failure to raise this claim earlier. Petitioner does not attempt to justify his failure to raise this claim earlier by alleging that facts have recently surfaced which were previously unknown; instead, petitioner contends that a change in the law since the earlier petitions excuses his failure to raise this claim earlier. The case on which petitioner grounds his right to relief on this claim in the instant petition, Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982), was decided on May 24, 1982, prior to petitioner’s filing his Original Petition on June 7, 1982, his Amended Petition on August 11, 1982, or his Second Amended Petition on January 25, 1983. Therefore, the Court finds that petitioner’s failure to present this claim in a prior petition was the result of inexcusable neglect and that petitioner’s fourth claim should be dismissed as an abuse of the writ.

Even if petitioner had met his burden of showing that his failure to raise the fourth claim in an earlier petition was not the result of neglect, petitioner’s failure to object at trial, see Trial Transcript at 912-15, and petitioner’s failure to raise this claim on direct appeal, bar petitioner from raising this issue in a federal habeas corpus proceeding, absent a showing of cause for and prejudice from the procedural default. See Ford v. Strickland, 696 F.2d at 816-17. Petitioner has demonstrated neither cause for nor prejudice from this default, see Hitchcock v. Wainwright, 745 F.2d 1332 (11th Cir.1984), and therefore petitioner is now barred from raising this issue.

V. PROPORTIONALITY CLAIM

Petitioner makes two related arguments in his fifth claim. Petitioner’s first argument is that the sentence of death should not have been upheld in petitioner’s direct appeal to the Florida Supreme Court because of the disparity existing between petitioner’s sentence of death and the grant of immunity given to Albert. In affirming this Court’s denial of petitioner’s Second Amended Petition, the Eleventh Circuit in Palmes v. Wainwright, 725 F.2d 1511 (11th Cir.), cert. denied, — U.S.-, 105 S.Ct. 227, 83 L.Ed.2d 156 (1984), denied petitioner relief on this claim. The court held as follows:

Finally, appellant claims that his sentence violates the eighth and fourteenth amendments because it is so disproportionate to the grant of immunity to Jane Albert. Ronald Straight, another actor in this murder scheme was also sentenced to death. The Supreme Court has stated that discretionary decisions of state prosecutors to grant immunity to some participants of a crime and not others is not arbitrary or cruel and unusual under the constitution. See Gregg v. Georgia, 428 U.S. 153, 199, 96 S.Ct. 2909, 2937, 49 L.Ed.2d 859 (1976) (Justices Stewart, Powell, and Stevens); Proffitt v. Florida, 428 U.S. at 254, 96 S.Ct. at 2967. Appellant’s claim that Jane Albert was not similarly punished is not a cognizable basis for relief.

725 F.2d at 1524.

There having been no intervening change in the law since the Eleventh Circuit’s ruling, this Court is of the opinion that the ends of justice would not be served by a redetermination of this claim on the merits, in that this claim, albeit in a slightly different form, was raised in the Second Amended Petition and was determined on the merits adversely to petitioner. Rule 9(b); In re Shriner, 735 F.2d at 1239-41; Smith v. Kemp, 715 F.2d at 1467-69.

Petitioner’s second argument is that the Florida Supreme Court’s opinion on the direct appeal failed to explicate the proportionality review, which failure to explicate frustrated federal court review and thereby denied petitioner his eighth and fourteenth amendment rights. The presentation of this claim in the instant successive habeas corpus petition constitutes an abuse of the writ under Rule 9(b). See Woodard v. Hutchins, 104 S.Ct. at 753.

Petitioner has not offered this Court a justifiable reason for his failure to raise this argument earlier. Petitioner has not alleged that new facts have been recently discovered which now make it possible to raise this claim. The fact that the Florida Supreme Court’s consideration of proportionality was not “explicated” is evident on the face of Palmes I. Furthermore, petitioner has not shown that his failure to present this argument earlier was justified by a recent development in the law. Petitioner relies on Advisory Committee Note to Fed.R.Civ.P. 52, see Successive Petition at 73, and on Justice Brennan’s dissent in Pulley v. Harris, — U.S.-, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984), see Successive Petition Hearing at 60-61. Neither the advisory note nor Justice Brennan’s dissent is a recent development in the law which would justify petitioner’s failure to raise this argument in an earlier petition. Therefore, this Court concludes that petitioner's failure to raise this argument earlier is the result of inexcusable neglect and that the second argument of petitioner’s fifth claim should be dismissed as an abuse of the writ. Accordingly, it is

ORDERED AND ADJUDGED:

1. That the Petition for Writ of Habeas Corpus, filed herein on November 2, 1984, is hereby denied;

2. That the Application for a Stay of Execution, filed herein on November 2, 1984, is hereby denied;

3. That petitioner is hereby granted leave to appeal in forma pauperis pursuant to 28 U.S.C. § 1915 (1982); '

4. That this Court declines to issue a certificate of probable cause to appeal pursuant to 28 U.S.C. § 2253 (1982) and Fed.R. App.P. 22(b), in that the instant Petition for Writ of Habeas Corpus is frivolous and constitutes an abuse of the writ; and

5. That the Clerk of the Court shall enter Judgment dismissing this action.

      . Petitioner argues that claims two, three and four are not procedurally barred because the Florida Supreme Court addressed the merits of those claims in Palmes III. See Transcript of Hearing on Successive Petition on Nov. 3, 1984, at 5-10. Specifically, petitioner points out the discussion by the Florida Supreme Court of whether any of the three claims not raised at trial or on direct appeal "call[ ] into question the fundamental fairness of the trial, the reliability of the determination of guilt, or the propriety of the sentence of death.” Palmes III at 3. This Court is of the opinion that the Florida Supreme Court relied on procedural default and did not adjudicate the merits of these three claims. The Florida Supreme Court specifically labelled these claims “waived contentions." Id. at 4. The Florida Supreme Court addressed the fundamental fairness of each issue only to determine whether a question of fundamental fairness had been raised. If such a question had been raised, then it would not be barred as an “ordinary procedural [error] which must be raised on appeal if [it is] to be raised at all.” Id. at 3. In fact, the Florida Supreme Court found petitioner’s fifth claim to be a “fundamental matter that can be raised by collateral challenge to a conviction.” Id. at 4. Consequently, unlike the other three claims, the Florida Supreme Court addressed the merits of petitioner's fifth claim.

      . See supra note 1.

      . See supra note 1.


author: KRAM, District Judge.

text:
    IRVING TRUST COMPANY, as Trustee for Teachers Insurance and Annuity Association of America, Northwestern National Life Insurance Company, and Northern Life Insurance Company, Teachers Insurance and Annuity Association of America, Northwestern National Life Insurance Company, and Northern Life Insurance Company, Plaintiffs, v. Elliott S. BRASWELL, Defendant.
    No. 84 Civ. 6319 (SWK).
    United States District Court, S.D. New York.
    Nov. 5, 1984.
    Stroock & Stroock & Lavan, New York City, for plaintiffs; Jay P. Mayesh, Brian M. Cogan, New York City, of counsel.
    Heller, Horowitz & Feit, P.C., New York City, for defendant; Richard F. Horowitz, Stuart A. Blander, New York City, of counsel.
   MEMORANDUM OPINION AND ORDER

KRAM, District Judge.

This action was commenced on August 31, 1984. The plaintiffs’ claim is based on an alleged breach of contract by the defendant, Elliott S. Braswell. Plaintiffs claim that Braswell personally guaranteed certain loans, and that he has failed to satisfy that guarantee. By stipulation of the parties, Braswell’s time to answer was extended until November 5, 1984.

Subsequent to the commencement of this action plaintiffs filed a motion to obtain a preliminary injunction. The plaintiffs originally requested the Court to hear this motion on October 11, 1984. At the request and consent of all of the parties the hearing for the preliminary injunction was postponed until October 18. In the interim, Braswell agreed not to dispose of any assets. The Court attempted to go forward with the hearing, as scheduled, on October 18. However, the defendant did not file any responsive papers until only moments before the hearing was to commence.

In order that an informed decision could be reached the Court rescheduled the hearing for October 26, 1984. In the interim, Braswell continued his stipulation not to dispose of any assets. This stipulation remained in effect until October 19. On that day the Court entered a temporary restraining order (hereinafter referred to as “TRO”) against Braswell. This order, in effect, prevented Braswell from fraudulently disposing of his assets. The order was to remain in effect until the hearing occurred on October 26.

The hearing for the preliminary injunction went forward on October 26. The plaintiffs introduced several exhibits at this hearing. Braswell did not testify, choosing instead to submit a conclusory two page affidavit. At the conclusion of the hearing the Court ordered that the previously issued TRO be extended and remain in effect through November 5, 1984. Both the initial TRO and the subsequent extension were entered with full notice to Braswell.

The underlying facts regarding plaintiffs’ breach of contract claim are not in dispute. On February 15, 1984 the three insurance company plaintiffs loaned $12,-000,000 to BSI Corporation (hereinafter referred to as “BSI”). BSI executed promissory notes in return for these funds. Bras-well was the sole shareholder in BSI.

In connection with this loan to BSI, Bras-well entered into a Guarantee and Pledge Agreement. The agreement was between Braswell and the fourth plaintiff, Irving Trust Company. In this agreement, Irving Trust was to serve as trustee for the three insurance company plaintiffs, and Braswell personally guaranteed payment of the promissory notes should BSI default.

BSI defaulted on the notes and commenced proceedings under Chapter 11 of the Bankruptcy Code on August 13, 1984. Braswell has failed to fulfill his obligations under the guarantee agreement, and has made no payments to cover BSI’s default. The outstanding balance of the loan is $10,-861,312.00 plus interest.

On July 28, 1984 Braswell transferred a piece of real property he owned to his wife for ten dollars. Braswell had previously valued this property at $500,000. On August 8, 1984 Braswell’s wife sold this property for $425,000. On August 16 Braswell made a gift to his wife of another piece of property he owned. Braswell had previously valued this property at $225,000. According to Braswell’s Statement of Assets and Liabilities as of March 31, 1984 he had a net worth of $10,664,270. The foregoing facts, none of which are in dispute, must be evaluated in conjunction with the following facts. Braswell was the sole shareholder of BSI, had personally guaranteed loans which BSI had defaulted on, and BSI had filed for bankruptcy on August 13.

Motions Before the Court

As explained earlier, the plaintiffs have moved for a preliminary injunction. Bras-well, in addition to opposing the preliminary injunction motion, has filed several motions. These include a motion to dismiss for lack of subject-matter jurisdiction, a motion to dismiss because of improper venue, and a motion to transfer under 28 U.S.C. § 1404. Plaintiffs have now also moved for summary judgment.

On October 31,1984 the Court refused to sign an Order to Show Cause which essentially requested that Braswell’s motions be decided prior to plaintiffs’ motion for summary judgment. In the instant opinion the Court currently decides only plaintiffs’ motion for a preliminary injunction and Bras-well’s motion to dismiss for lack of subject-matter jurisdiction. The Court reserves decision on all other pending motions, and will give Braswell adequate time to respond to the summary judgment motion. Jurisdiction

The basis of the Court’s subject-matter jurisdiction is 28 U.S.C. § 1332. Braswell contends that the Court lacks subject-matter jurisdiction over this action because plaintiffs have failed to join an indispensable party. Braswell argues that this action must be dismissed under Rule 19 of the Federal Rules of Civil Procedure because an indispensable party has not been joined and cannot be joined. The party which Braswell claims is indispensable cannot be joined because the presence of this party would destroy diversity among the parties in the instant case. Braswell’s factual argument to support this theory is entirely frivolous and without merit.

Braswell contends that the First National Bank of South Carolina (hereinafter referred to as “FNBSC”) is an indispensable party under Fed.R.Civ.P. 19. This is untrue. The transaction between FNBSC and BSI was a separate transaction from the instant one. It was a separate loan and was provided for in a separate loan agreement. Plaintiff — Irving Trust is the trustee for both loans, and this is provided for in the same written instrument. However, there are two separate and distinct obligations involved: one to FNBSC and one to the three insurance company plaintiffs in the instant case. Moreover, FNBSC has already commenced a separate law suit against Braswell in South Carolina.

I find that FNBSC is not an “indispensable party” within the meaning of Fed.R. Civ.P. 19(a). Moreover, even if it were, the action would still not be dismissed under Fed.R.Civ.P. 19(b). This is so because any judgment rendered by this Court will in no way prejudice FNBSC, and an adequate judgment can be rendered in the absence of FNBSC as a party to this litigation. Bras-well’s motion to dismiss this action for nonjoinder of an indispensable party is, therefore, DENIED.

The Preliminary Injunction

To obtain a preliminary injunction in the Second Circuit plaintiffs must show the following:

(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.

Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979). Plaintiffs have met all of the prongs of this test. Plaintiffs have shown that they will suffer irreparable harm without the preliminary injunction. If Braswell is permitted to fraudulently dispose of his assets the plaintiffs will be unable to enforce any judgment against him and Braswell’s personal guarantee of the loans will be rendered meaningless.

Plaintiffs have also made a very strong showing that they are likely to succeed on the merits. Braswell has failed to assert any credible defense to plaintiffs’ claims that BSI is in default and that Braswell has failed to fulfill his personal guarantee. The facts surrounding these claims are not in dispute.

Alternatively, given the terms of the injunction the Court will issue, and the substantial losses the plaintiffs stand to suffer, plaintiffs have shown a fair ground for litigation and a clear balance of hardships tipping decidedly in their favor. Thus, plaintiffs have fulfilled either of the alternative second prongs of the test.

Braswell does not take issue with any of the foregoing, nor does he dispute that plaintiffs have made the requisite showing to obtain a preliminary injunction. Rather, the basis of his opposition to the issuance of the injunction is that Rule 64 of the Federal Rules of Civil Procedure precludes the issuance of an injunction in this case. The basis of subject-matter jurisdiction in the instant case is diversity of citizenship among the parties. Braswell contends that Fed.R.Civ.P. 64 provides the sole and exclusive basis for provisional remedies and interim relief in a diversity case. He argues that, despite Fed.R.Civ.P. 65, an injunction cannot issue in the instant case unless it is specifically authorized by New York State law.

Braswell argues that New York Law does not provide for, and specifically prohibits, the issuance of the type of preliminary injunction the plaintiffs are seeking. Rather, they must utilize New York’s procedure for attachment, argues Braswell. In the same breath, however, he concedes that attachment is not available in the instant case because none of Braswell’s assets are present in New York, nor are they subject to attachment under the New York statute.

Braswell’s argument fails, however, in that he has failed to cite any authority for his contention that Fed.R.Civ.P. 64 is the sole basis in a diversity case for granting the type of relief the plaintiffs seek in the instant case. In effect, Braswell’s position is that Fed.R.Civ.P. 65 does not apply in diversity cases, and a preliminary injunction may issue in diversity cases only when the controlling state law specifically authorizes it. This contention is wholly unsupported by any authority or by the language of Fed.R.Civ.P. 64. Indeed, at least one court has specifically rejected this contention. Federal Trade Commission v. H.N. Singer, 668 F.2d 1107, 1112 (9th Cir.1982). See also Perfect Fit Industries, Inc. v. Acme Quilting Co., Inc., 646 F.2d 800, 806 (2d Cir.1981), cert. denied, 459 U.S. 832, 103 S.Ct. 73, 74 L.Ed.2d 71 (1982); (“State law does not govern the scope of the equity powers of the federal court; and this is so even when state law supplies the rules of decision,”); Clark Equipment Co. v. Armstrong Equipment Co., 431 F.2d 54, 56 (5th Cir.), reh’g denied, 434 F.2d 1039 (5th Cir.1970), cert. denied, 402 U.S. 909, 91 S.Ct. 1382, 28 L.Ed.2d 650 (1971).

I reject Braswell’s contention, and I find that neither Fed.R.Civ.P. 64, nor Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), preclude the issuance of the preliminary injunction sought in the instant case. Braswell’s two page conclusory affidavit, in which he states that the two conveyances to his wife were not fraudulent because they did not render him insolvent, is also insufficient to defeat plaintiffs clear showing that they are entitled to a preliminary injunction. In view of the foregoing, the preliminary injunction, the specific terms of which are described below, is hereby GRANTED.

Conclusions

Braswell’s motion to dismiss this action for failure to join an indispensable party is hereby DENIED. The plaintiffs’ motion for a preliminary injunction is hereby GRANTED. Decision on all other pending motions is reserved at this time.

It is hereby further

ORDERED that the defendant, his agents, and all others acting in concert or participation with him, during the pendency of this action are preliminarily enjoined from: (a) making or causing to be made any conveyance, assignment, or other transfer, with or without consideration, of any real property belonging to the defendant; and (b) making or causing to be made any payment to any person or entity, or pledging, hypothecating, mortgaging or otherwise encumbering any of his assets, except for (i) the payment of his ordinary and necessary living expenses, or (ii) any payment made to obtain personalty or realty of reasonably equivalent value to such payment; and (c) releasing, waiving, or causing to be satisfied, in whole or in party, any debt owing to him, except by payment or cash or bond transferred to him for the full amount released or satisfied; and it is further

ORDERED that this preliminary injunction shall remain in effect until the underlying issues in the instant case are resolved or until otherwise modified by the Court.

SO ORDERED.