text:
    Dorothy GAUTREAUX, et al., Plaintiffs, v. CHICAGO HOUSING AUTHORITY, et al., Defendants.
    Nos. 66 C 1459, 66 C 1460.
    United States District Court, N.D. Illinois, E.D.
    Feb. 26, 1985.
    See also, 7th Cir., 690 F.2d 601.
    Alexander Polikoff, Howard A. Learner, Chicago, Ill., for plaintiffs.
    U.S. Atty.’s Office, Robert Grossman, Roan & Grossman, Patrick W. O’Brien, Mayer, Brown & Platt, Richard Fiando, Acting Regional Counsel, Dept, of Housing & Urban Development, Stanley J. Garber, Corp. Counsel, Calvin H. Hall, Gen. Counsel, Chicago Housing Authority, Earl L. Neal, Sp. Asst. Corp. Counsel, Chicago, Ill., Jane McGrew, Gen. Counsel, Dept, of Housing and Urban Development, Washington, D.C., Gerald D. Skoning, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., for defendants.
   MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

This litigation, now about to enter its twentieth year, began in 1966 when the plaintiff class brought related actions against the Chicago Housing Authority (“CHA”) and the United States Department of Housing and Urban Development (“HUD”) alleging that defendants had violated their rights under the Civil Rights Act of 1866, as amended, 42 U.S.C. § 1981 et seq., and the equal protection clause of the Fourteenth Amendment. Consistent with the modified consent decree which was accepted by this Court on July 16, 1981, HUD authorized the construction of the Academy Square project, a 200-unit Section 8 Family Housing Development. On July 16, 1982, the Court ordered that construction of this project be achieved by October 1, 1982. After the defendants failed even to begin construction by that deadline, Midwest Community Council (“Midwest”) moved to intervene in this suit. The Court allowed Midwest to intervene on November 8, 1982, “as a party plaintiff for the limited purpose to monitor and enforce the previous orders of this Court as they relate to the Academy Square Development.” Presently before the Court is Midwest’s motion for attorney’s fees. For the reasons set forth below, Midwest’s motion is granted.

When Congress created the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988, it recognized the critical nexus between providing for recovery of attorney’s fees and ensuring enforcement of the civil rights laws.

All of these civil rights laws depend heavily upon private enforcement, and fee awards have proved an essential remedy if private citizens are to have a meaningful opportunity to vindicate the important Congressional policies which these laws contain.

S.Rep. No. 1011, 94th Cong., 2d Sess. 4, reprinted in [1976] U.S.Code Cong. & Ad. News 5908, 5910. Congress further predicted that “[i]n the large majority of cases the party or parties seeking to enforce such rights will be the plaintiffs and/or plaintiffintervenors.” Id. at 5912. Thus, Congress explicitly noted that intervening parties as well as original plaintiffs might be entitled to attorney’s fees. Various courts also have acknowledged the propriety of awarding attorney’s fees to prevailing intervenors. E.g., Donnell v. United States, 682 F.2d 240 (D.C.Cir.1982), cert. denied, 459 U.S. 1204, 103 S.Ct. 1190, 75 L.Ed.2d 436 (1983); Seattle School District No. 1 v. State of Washington, 633 F.2d 1338 (9th Cir.1980), affd, 458 U.S. 457, 102 S.Ct. 3187, 73 L.Ed.2d 896 (1982); Morgan v. McDonough, 511 F.Supp. 408 (D.Mass. 1981), affd, 689 F.2d 265 (1st Cir.1982).

In order to recover attorney’s fees, plaintiffs or intervenors must show that they prevailed — and that the underlying claim was an “action or proceeding to enforce a provision of sections 1981, 1982, 1983,1985, and 1986 of this title, title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964.” 42 U.S.C. § 1988. Additionally, an intervenor’s attorney’s fee award may be limited by the Court’s assessment of the proportionate contribution which the intervenor made to the ultimate success. We find that Midwest is entitled to attorney’s fees as a prevailing party which made significant contributions to the plaintiffs’ ultimate success regarding the Academy Square project.

The City argues that Midwest should not be awarded attorney’s fees for several reasons. First, the City claims that Midwest did not act “to secure a recognized, constitutionally protected right” or to enforce any provision of the civil rights laws enumerated in section 1988. This claim is unpersuasive. Midwest’s intervention served to enforce this Court’s orders concerning the construction of certain public housing which the defendants agreed to provide. Midwest therefore helped obtain compliance with aspects of the consent decree which was entered into so that various constitutional and civil rights violations might be remedied. The connection between Midwest's actions and the plaintiffs’ civil rights claims is clearly not so tenuous as to preclude recovery of attorney’s fees.

The City also claims that Midwest’s role in this case is more accurately characterized as an amicus curiae than as a party plaintiff. This claim hardly requires a response, as it ignores the Court’s express designation of Midwest as a limited “party plaintiff” and obviously understates Midwest’s participation in the case.

We thus turn to the City’s next argument, that Midwest is not a “prevailing party.” It is clear that when Midwest moved to intervene, neither the principal plaintiffs nor the Court knew that the CHA was attempting to find an alternate site for the Academy Square project and to abandon the original site either through inaction or by seeking vacation of the condemnation award. After Midwest presented this information, we noted our concern that the original site would be lost before an alternate site had been approved. We also questioned at that time whether the CHA would have made any formal request at all for HUD approval of the alternate site if Midwest had not brought its motion to intervene. Later, when the Court directed the principal plaintiffs to move for a Rule to Show Cause, both the Court and plaintiffs’ attorney acknowledged Midwest’s role leading to that motion.

The above examples are not meant to detail the full extent of Midwest’s involvement in this case, but to illustrate how — at various points — Midwest was instrumental in maintaining the integrity of the Court’s efforts regarding the Academy Square project. Indeed, we agree with Midwest that its careful monitoring of the City’s actions and its aggressive activities ensuring compliance with the Court’s orders, served to assure that the Academy Square project was not abandoned. Thus, we find that Midwest was a “prevailing party” entitled to recover attorney’s fees. Moreover, in light of Midwest’s significant — perhaps essential — contribution to the plaintiffs’ success in achieving construction of the Academy Square project, it would be inappropriate to limit Midwest’s recovery to some fraction of the total attorney’s fees and costs actually incurred.

The City’s final two objections to Midwest’s request for fees may be answered briefly. First, the City claims that Midwest’s time records are too vague to provide sufficient evidence of the reasonableness of the fees requested. We disagree. As the Supreme Court stated recently, “counsel, of course, is not required to record in great detail how each minute of his time was expended. But at least counsel should identify the general subject matter of his time expenditures.” Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 1941 n. 12, 76 L.Ed.2d 40 (1983). Midwest’s time records satisfy this requirement. They are broken down into small blocks of time and are explained in sufficient detail. Thus, they are not too vague to support Midwest’s motion for fees.

Second, the City contends that Midwest’s motion should be denied because it is untimely. It is certainly within the Court’s discretion to deny fees where a delay in filing the motion for fees has prejudiced the other party. White v. New Hampshire Department of Employment Security, 455 U.S. 445, 454, 102 S.Ct. 1163, 1167-68, 71 L.Ed.2d 325 (1982). However, the City has failed to demonstrate any prejudice in this case. The City merely states that Midwest’s motion is “ipso facto prejudicial” because it is based on events which occurred up to two years ago. We disagree. Many civil rights cases take several years to resolve, as this litigation aptly demonstrates. And, as in this case, motions for fees will often encompass long periods of time. In light of these circumstances and without a more specific showing of prejudice, the Court declines to deny Midwest’s motion as untimely.

Accordingly, Midwest’s motion for attorney’s fees and costs totalling $31,804.82 is granted. It is so ordered.

      . Transcript of November 4, 1982 hearing at 18.

      . Id. at 23.

      . Transcript of March 31, 1983 hearing at 20, 24 and 35.

      . We note additionally that the total hours listed in the time records appear reasonable. Moreover, the City has not disputed any specific entry on the records, either claiming that the amount of time is unreasonably long for a particular activity or asserting any conflict with the City’s own records for activities in which both parties were involved.


source: Caselaw Access Project

author: ASPEN, District Judge:

license: Public Domain

text:
    Edward Alan HANNA, Plaintiff, v. Michael P. LANE, Henry E. Cowan, David Grant, Captain Tibbetts, Willie Hayes, Rodney Sprinkle, Larry Pusteria, George Stampar, M. Hosey, Gaylon Yates, Edna Davis, Nathaniel Richars and Marvin Shields, Defendants.
    No. 84 C 1635.
    United States District Court, N.D. Illinois, E.D.
    March 4, 1985.

      Edward Alan Hanna, pro se.
    Robert W. Cushing, Asst. Atty. Gen., Chicago, Ill., for defendants.
   MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

Edward Hanna, plaintiff in this pro se civil rights suit, initiated this action with a complaint against twenty-two individuals employed by the Illinois Department of Corrections and the Joliet Correctional Center. Because the broad allegations of the original complaint did not link the named defendants to the facts underlying Hanna’s claims, defendants moved to dismiss. Plaintiff responded with a memorandum thoroughly detailing all the facts relevant to his claim. The Court treated the memorandum as an amended complaint incorporating the allegations of the original and denied defendants’ motion as moot. Defendants now move to strike certain paragraphs of the amended complaint and to dismiss the claims against some of the defendants.

On January 7, 1984, prison officials removed Hanna to segregation for purposes of investigation of a rule violation. Hanna was later cited and found guilty of a disciplinary infraction. Defendants’ motion, however, does not address the legal claims arising out of these events. Instead, it seeks to strike 31 of the 74 paragraphs in the amended complaint as superfluous filler failing to allege a basis for a constitutional violation. It further seeks dismissal of twelve of the twenty-two defendants for lack of sufficient involvement in the circumstances giving rise to Hanna’s suit.

While the original complaint suffered from a paucity of critical facts, the amended complaint is burdened with an excess of needless detail. But a surfeit of factual allegations is not necessarily grounds to strike the pleadings, especially when those pleadings are prepared by a pro se litigant untutored in the requirements of federal procedural rules. Rule 12(f) of the Federal Rules of Civil Procedure only allows a court to strike from a pleading “any redundant, immaterial, impertinent, or scandalous matter.”

With the few exceptions noted infra, most of the paragraphs which defendants seek to strike do not fit within any of the grounds enumerated in Rule 12(f). Moreover, inasmuch as motions to dismiss are looked upon with disfavor, courts ordinarily will not strike matters unless it both has no relevance to the subject matter of the litigation and is prejudicial to the objecting party. Lirtzman v. Spiegel, Inc., 493 F.Supp. 1029, 1030 (N.D.Ill.1980). The amended complaint is discursive and clearly in violation of the Rule 8 directive to keep pleadings simple and concise, but the paragraphs defendants challenge are for the most part neither wholly irrelevant nor prejudicial. Therefore, the Court shall overlook the prolixity in Hanna’s amended complaint and deny defendants’ motion to dismiss paragraphs 1, 2, 3, 4, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 22, 23, 24, 41, 42, 50, 52, and 58, 59, and 60.

Defendants also move to dismiss paragraph 21. Unlike the paragraphs cited above, paragraph 21 alleges a claim for relief, not just supporting facts. Specifically, Hanna alleges that four of the defendants violated his constitutional right to adequate security by permitting another inmate with a history of aggressive and assaultive behavior to reside with him and other less-aggressive inmates in the general population at Joliet.

The Eighth Amendment entitles prisoners to reasonable protection from bodily harm at the hands of fellow prisoners. Madyun v. Thompson, 657 F.2d 868, 875 (7th Cir.1981). But to sustain a claim of cruel and unusual punishment, a prisoner must show that defendants “deliberately deprived” him of his right to reasonable security from violence. Little v. Walker, 552 F.2d 193, 198 (7th Cir.1977), cert. denied, 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 530 (1978). If a prison official has strong reason to believe that one inmate is about to attack another yet fails to take any precautions to safeguard the intended victim, then he may be held liable under the deliberate indifference standard for injuries suffered by the prisoner who was assaulted. See Matzker, 748 F.2d at 1149-50. But allegations evidencing a “mere possibility” of violence are not enough to infer callous indifference. Estate of Davis v. Johnson, 745 F.2d 1066, 1071 (7th Cir. 1984).

Hanna’s allegations show, at most, only the mere possibility of attack. Hanna does not allege that the purportedly dangerous prisoner ever threatened him personally. Indeed, the only allegations of actual violence or threats of violence concern past acts at a different correctional facility. The only misconduct alleged is that defendants permitted an inmate with a history of aggression to reside in general population with Hanna. But as the Seventh Circuit noted in United States ex rel. Miller v. Twomey, 479 F.2d 701 (7th Cir.1973), cert. denied, 414 U.S. 1146, 94 S.Ct. 900, 39 L.Ed.2d 102 (1974):

Within the prison itself the warden and his agents must also be permitted a wide area of unreviewable discretion. The proper placement or classification of the especially dangerous inmate should not present him with a Hobson’s choice between alternative Eighth Amendment claims; segregation on the basis of mere suspicion or inadequate history of violence might have subjected him to a claim by Bright, whereas the failure to segregate has given rise to a claim by Gutierrez.

Id. at 721. Thus, the decision to permit a potentially dangerous inmate to reside in the general population does not, without more, give rise to a claim for relief. Id. Accordingly, the Court dismisses the claim asserted in paragraph 21 of the amended complaint.

In paragraphs 43, 48, and 70, Hanna complains that officials required him to wear a security belt and handcuffs when he was released from segregation for visits with friends and family on two occasions. He alleges his brother, who did not have as good a prison record as he, did not have to wear security devices. He asserts that use of the restraints during his visits was degrading and “wrongfully defamed” him before family and friends.

The Supreme Court has repeatedly recognized the need for federal courts to avoid unnecessary encroachment on difficult questions of prison administration which are more properly left to the expertise of the trained officials who run the prisons. Hudson v. Palmer, — U.S.-, 104 S.Ct. 3194, 3199, 82 L.Ed.2d 393 (1984); Rhodes v. Chapman, 452 U.S. 337, 351 n. 16,101 S.Ct. 2392, 2401 n. 16, 69 L.Ed.2d 59 (1981); Bell v. Wolfish, 441 U.S. 520, 562, 99 S.Ct. 1861, 1886, 60 L.Ed.2d 447 (1979). Matters of security are of particular importance and administrative decisions in this critical area are especially deserving of deference from the courts. Soto v. Dickey, 744 F.2d 1260, 1269 (7th Cir.1984). Because prison officials are better equipped to determine what practices and procedures are best suited to maintain institutional security, the courts will not interfere with the imposition of a particular security measure unless the need for it is unjustifiably exaggerated. See Bono v. Saxbe, 620 F.2d 609, 617 (7th Cir.1980). A security measure does not constitute a violation of the Eighth Amendment absent some showing that it constitutes a wanton infliction of pain that is totally without penological justification. See Rhodes, 452 U.S. at 346,101 S.Ct. at 2398; Garza v. Miller, 688 F.2d 480, 487 (7th Cir.1982).

The practice at issue here is not so excessive or unreasonable as to violate Hanna’s right to be free from cruel and unusual punishment. At the time of the visits, Hanna, unlike his brother, was confined to segregation. Prisoners in segregation are usually those who have violated prison rules or are under investigation for possible disciplinary action. It is not unreasonable to assume that as a class those prisoners represent a potential threat to security. Therefore, courts have sanctioned the use of mechanical restraints on prisoners in segregation-type status whenever they are taken out of the segregation unit. Tubwell v. Griffith, 742 F.2d 250, 252-53 (5th Cir.1984); Fulford v. King, 692 F.2d 11 (5th Cir.1982). While it is true that Hanna contends he was wrongfully placed in segregation and had no prior history of violence, these facts alone are not enough to permit this Court to substitute its judgment for that of prison officials. See Tubwell, 742 F.2d at 253. For Eighth Amendment purposes, the mere fact of segregation is sufficient to justify use of handcuffs and a security belt for purposes of receiving contact visits. The burden of individualized determination of dangerousness is not constitutionally compelled for a prisoner committed to segregation. Accordingly, the Court dismisses the claim asserted in paragraphs 43, 48, and 70.

In paragraph 31 of the complaint Hanna alleges he wrote defendant Lane giving details of the events and grieving the actions of the other defendants. Lane purportedly never responded to Hanna’s letter. Michael Lane is Director of the Illinois Department of Corrections. As Director, Lane cannot be expected to involve himself with the minutiae of daily events in the lives of the thousands of prisoners incarcerated in Illinois prisons. Thus, Lane’s failure to respond to Hanna’s letter is not grounds for a claim of constitutional importance. See Crowder v. Lash, 687 F.2d 996, 1006 (7th Cir.1982); Partee v. Lane, 528 F.Supp. 1254, 1259 (N.D.Ill.1981). Lane is therefore dismissed from the action.

Eleven other defendants move to dismiss on grounds that they were without authority to rectify the allegedly wrongful assignment of Hanna to segregation or to order his release. Hanna concedes as to defendants Jenkins, Cooper, Douglas, Sibley, Loos, L. Yates, Maxwell, and Brljavac and agrees to their dismissal. He asserts, however, that defendants Cowan, G. Yates, and Shields knew of the wrongful action against him and had authority to release him from segregation. On a motion to dismiss, the court must accept these allegations as true. Hanrahan v. Lane, 747 F.2d 1137, 1139 (7th Cir.1984). Accordingly, the motion to dismiss as to these three defendants must be denied.

In conclusion, the Court grants defendants’ motion to dismiss the amended complaint as to paragraphs 21, 31, 43, 48, and 70 and dismisses from the action defendants Lane, Jenkins, Cooper, Douglas, Sibley, Loos, L. Yates, Maxwell, and Brljavac. The motion is denied in all other respects.

It is so ordered.

      . The Seventh Circuit has since recognized the propriety of this procedure for cases in which plaintiff is proceeding without counsel. Matzk

        er v. Herr, 748 F.2d 1142, 1148 n. 5 (7th Cir. 1984).

      . Defendants contend that certain of the paragraphs attempt to present claims on behalf of two other prisoners. Hanna was placed in segregation because he wrote a letter attempting to intercede on behalf of his two fellow prisoners to obtain dismissal of disciplinary reports against them which he felt were without foundation. As the Court reads the amended complaint, reference to the other inmates are facts in support of Hanna’s claims, not separate claims on behalf of the non-plaintiff inmates.


author: JAMES McGIRR KELLY, District Judge.

text:
    Frank J. VALENTI v. INTERNATIONAL MILL SERVICES, INC., et al.
    Civ. A. No. 84-1218.
    United States District Court, E.D. Pennsylvania.
    March 6, 1985.

      George P. Wood, Norristown, Pa., for plaintiff.
    Michael P. Kraemer, Philadelphia, Pa., for defendants.
   MEMORANDUM AND ORDER

JAMES McGIRR KELLY, District Judge.

Presently before this court is defendants International Mill Services, Inc. (IMS) and IU International Corporation’s (IU) motion for summary judgment pursuant to Ped.R. Civ.P. 56. Plaintiff Valenti asserts that he was discharged from employment because of his age, in violation of the Age Discrimination in Employment Act, (ADEA) 29 U.S.C. § 621, et seq., the Employees’ Retirement Income Security Act (ERISA), 29 U.S.C. § 1001, et seq., the Pennsylvania Human Relations Act, 43 P.S. § 959, and general tort law. See Valenti v. International Mill Services, Inc., No. 84-1218 (E.D.Pa. September 28, 1984); Valenti v. International Mill Services, Inc., No. 84-1218 (E.D'.Pa. November 21, 1984) (denial of defendants’ earlier motion for summary judgment).

Defendants contend that the plaintiff has signed a valid release. Indeed, the defendants submitted for my consideration an agreement made between the parties. This agreement contains inter alia a general release which states in pertinent part:

In consideration of the foregoing, you hereby release IMS and all of its subsidiaries, divisions and related corporations from any and all actions, causes of actions, claims and demands whatsoever, which you, your heirs, executors or administrators ever had, now have or may have against such entities by reason of any matter, course or thing whatsoever.

Plaintiff Valenti and by amicus curiae the Equal Employment Opportunity Commission (EEOC) advance two arguments which they assert would be grounds for denying the summary judgment. First, plaintiff and the EEOC assert that because the language of the release was of a broad general nature, coupled with the fact that plaintiff had no specific knowledge or intent to waive his age discrimination claim, an issue of fact is presented. Namely, the issue presented is whether or not the general release can be construed as plaintiff’s relinquishment of his claim for age discrimination. Second, plaintiff and the EEOC assert that claims under the ADEA cannot be waived unless the EEOC is a participant in the negotiations for the release.

I need only address the first argument raised by plaintiff to dispose of this motion. Because of Congress’ activities in regulating age discrimination by enactment of the ADEA, courts must place a higher burden on individuals who seek to have such rights waived. Defendants assert that Three Rivers Motors Company v. The Ford Motor Company, 522 F.2d 885 (3d Cir.1975) should control this court’s interpretation of the release. In Three Rivers Motors Company the plaintiff sought to bring an antitrust action against an automobile manufacturer. The Third Circuit held that the release, although couched in general waiver language, would be construed to effectuate its plain meaning, notwithstanding the subjective intentions of the parties. Judge Forman speaking for the court reasoned: “Thus, Pennsylvania law is clearly that where the parties manifest an intent to settle all accounts, the release will be given full effect even as to unknown claims.” (footnotes omitted) Id. at 896.

Here, the court is concerned with the civil rights of the plaintiff. Indeed, Judge Forman included a caveat to the above quoted passage which states in particular part: “Upholding the validity of the release in these circumstances does not offend public policy.” Id. at 896, n. 27.

The court here is dealing with plaintiffs civil rights. A broad release which does not mention the instant age discrimination claim coupled with the fact that the parties never discussed the general release and thus did not shed any light as to its meaning and the parties’ intentions, cannot be construed as a waiver of the claim. Indeed, a trier of fact must decide the question as to whether or not plaintiff waived the claim. Thus, this matter is distinguished from Runyan v. NCR Corporation, 573 F.Supp. 1454 (S.D.Ohio 1983) which defendants rely upon for authority for their position. In Runyan the plaintiff was discharged and signed a general release for certain consideration. Subsequently, Runyan brought an action for age discrimination. However, the court was faced with the fact that the plaintiff was an experienced labor attorney, who further acknowledged the fact that when confronted with the release, he considered whether or not he was being discharged because of his age. Thus, the court held that Runyan had knowingly and voluntarily waived his rights. Here, plaintiff is an engineer with a masters degree, and never thought at the time he was being discharged that he may have been discriminated against because of his age or that he possibly had an age discrimination claim.

Defendants also argue that this court is bound by Stump v. Ganflec Construction Company, Inc., No. 80-650 (M.D.Pa. December 11, 1980), affd., 671 F.2d 496 (3d Cir.1981). However, upon review of Stump, all the district court issued was an order granting summary judgment without a memorandum or opinion. The Third Circuit issued a judgment order affirming the district court’s order. Without more I cannot uncover the reasons why the district court granted the summary judgment or why the Third Circuit affirmed the summary judgment. Therefore, clearly Stump cannot be authority for the position that a general release must be construed as to release age discrimination claims.

For all the reasons, defendants have not established the absence of a genuine issue of fact. Accordingly, defendants’ motion for summary judgment must be denied.

      . The Third Circuit did cite Three Rivers Motors Company in its judgment order. But without more I would only be speculating as to the facts in Stump and how Three Rivers Motors Company is applicable to it.


author: EARL E. O’CONNOR, Chief Judge.

text:
    Charles A. SAWYER, Plaintiff, v. SWIFT & COMPANY, Defendant.
    Civ. A. No. 83-2403.
    United States District Court, D. Kansas.
    March 12, 1985.

      Benjamin L. Burgess, U.S. Atty., Robert S. Streepy, Asst. U.S. Atty., Francis X. Lilly, Deputy Regional Solicitor, Tedrick A. Housh, Jr., Regional Solicitor, John B. Renick, Deputy Regional Solicitor, Keithley F.T. Lake, Atty., U.S. Dept, of Labor, Kansas City, Mo., and William Berger, U.S. Dept, of Labor, Office of Regional Solicitor, Atlanta, Ga., for plaintiff.
    Daniel B. Denk of McAnany, Van Cleave & Phillips, Kansas City, Kan., for defendant.
   MEMORANDUM AND ORDER

EARL E. O’CONNOR, Chief Judge.

This matter is presently before the court on the parties’ joint motion for declaratory judgment. The parties have submitted stipulations of fact and deposition testimony, and presented the following three issues for determination by the court: (1) the responsibility of the defendant to allow the plaintiff a monthly absence from work in order to travel to Memphis, Tennessee, from Kansas City, to attend military reserve inactive training once a month; (2) whether the plaintiff gave defendant adequate notice that he would attend a reserve drill and not be present for overtime work assignments on the weekend of January 8 and 9, 1983; and (3) whether the plaintiff was terminated as a result of his attending military reserve inactive training on the weekend of January 8 and 9, 1983.

The parties submitted the following joint stipulations of fact:

1. Defendant is a corporation maintaining a place of business at 4612 Speaker Road, Kansas City, Kansas.
2. Plaintiff was employed by defendant on December 8, 1980, in an other than temporary position as a mechanic and was discharged on January 10, 1983.
3. Plaintiff joined the Navy Reserve in October, 1982, a component of the Armed Forces of the United States, and was assigned to a Naval Reserve Unit in Memphis, Tennessee. The plaintiff would meet a military transport plane at Richards-Gebaur Airport at 6:00 p.m. on the Fridays preceding his drills for transportation to Memphis.
4. Plaintiff was scheduled to perform inactive duty training with his Naval Reserve Unit in Memphis, Tennessee on December 11 and 12, 1982.
5. Plaintiff attended a second step grievance hearing at Swift & Company on December 9, 1982. Also present at the hearing were Stan Hall, Lucille White, Henry Duron, Ron Lupardus, Steve Dickey, and Pat Holland. Plaintiff contends that at this hearing he gave defendant verbal notice of his make-up drill the first nonholiday weekend in January, 1983. Defendant alleges there was no such notice given.
6. The plaintiff did not work at Swift & Company on Saturday, December 11, 1982.
7. The plaintiffs supervisor at Swift & Company was Jerry Kaprol. Steve Dickey was employed in December, 1982, as Chief Engineer.
8. Plaintiff was a union steward for Local 12, National Brotherhood of Meat Packers and Industrial Workers.
9. Plaintiff rescheduled his make-up inactive duty training originally scheduled at Memphis for December 11 and 12, 1982, with the Naval Reserve Unit at Olathe, Kansas, for January 8 and 9, 1983.
10. The plaintiff’s shift at Swift & Company was from approximately 2:00 p.m. to approximately 10:30 p.m. weekdays.
11. Defendant’s objection to plaintiff’s attending inactive duty training in Memphis was based on the fact that the plaintiff had to leave work early on Fridays preceding reserve drills.
12. On January 6, 1983, defendant posted a list of employees scheduled to work on Saturday, January 8, 1983. Plaintiff’s name appeared on this list.
13. Plaintiff attended his make-up inactive duty training at the Naval Reserve Unit, Olathe, Kansas, on January 8 and 9, 1983, and did not report to his scheduled overtime work at Swift & Company on January 8, 1983.
14. Plaintiff attended inactive duty training at the Naval Reserve Unit in Memphis, Tennessee, in October and November, 1982.
15. There were eight mechanics on plaintiff’s shift.
16. Every employee assigned to work on January 8, 1983, was a mechanic.
17. The plaintiff had been disciplined on occasions prior to January 10, 1983, for his work attendance record at Swift & Company and was accordingly in the progressive disciplinary mode.
18. The plaintiff was scheduled to work on January 8, 1983, and he did not report for work on such date.
19. The plaintiff returned to work on January 10, 1983, and he was indefinitely suspended, and subsequently discharged by defendant.

The controlling law in this case is found in two sections of the Veterans Reemployment Rights Act, 38 U.S.C. Chapter 43. The first provision is 38 U.S.C. § 2021(b)(3), which states that any person covered by this provision of the Act “shall not be denied retention in employment or any promotion or other incident or advantage of employment because of any obligation as a member of a Reserve component of the Armed Forces.” This statute, commonly known as the Vietnam Era Readjustment Assistance Act of 1974, was passed for the purpose of preventing reservists and National Guardsmen not on active duty, who must attend weekend drills or summer training, from being discriminated against in employment because of such membership. Monroe v. Standard Oil Co., 452 U.S. 549, 559-60, 101 S.Ct. 2510, 2516, 69 L.Ed.2d 226 (1981). 38 U.S.C. § 2024(d) states that a leave of absence from work “shall upon request be granted ... for the period required to perform ... inactive duty training.” Furthermore, this statute states that an employee-reservist “shall report for work at the beginning of the next regularly scheduled working period after expiration of the last calendar day necessary to travel from the place of training to the place of employment following such employee’s release.”

Defendant’s position is that although it was required to give plaintiff monthly release time for reserve duty, it was not required to grant plaintiff time off for travel to a remote training location. Defendant argues that although the statute specifically allows reservists time off from work to travel from the place of training to the place of employment, it does not cover travel to the place of training. This argument, although creative, is clearly without merit. This statute obviously contemplated that substantial time might be necessary to travel from one’s place of employment to the location for reserve training. The language allowing an employee-reservist time to travel from reserve training to his employment would be meaningless if the employee-reservist did not also have sufficient time to travel from his employment to the reserve training. Defendant argues that this reading of the statute would encourage reservists to sign up in great numbers for reserve training at the most exotic locales available. It further contends that it had no duty to allow plaintiff additional time for travel to his reserve training in Memphis because there were closer locations, e.g., Olathe, at which he could attend weekend reserve training. This argument ignores the fact that Memphis was the closest location at which plaintiff could perform the functions for which he was trained, namely those of an aircraft mechanic.

The case of Mendaloff v. Weiner, 92 Lab.Cas. (CCH) % 12,924 (D.Md.1981), is instructive on this issue. In that case, Mendaloff was a member of the United States Army Reserves. He was required to report for weekend drills on Saturday at 8:00 a.m. This did not interfere with his job because he did not work on weekends. However, his unit was subsequently ordered to attend specialized training at a distant location that would have required Mendaloff to report at 7:45 p.m. on Friday night in order to travel to that location. The training schedule was changed before it went into effect and Mendaloff did not in fact have to report on Friday evenings. His employer nonetheless terminated Mendaloff because the “Army Reserve [was] too much of a problem.” The court found that Mendaloff was terminated because of his obligation to report on Friday evenings, even though he was never in fact required to meet that obligation. The Mendaloff case involved travel time to weekend training, as does the instant case. The Mendaloff court made no distinction between travel time to, as opposed to travel time from, weekend training.

Defendant further argues that Monroe v. Standard Oil Co., supra, stands for the proposition that an employer is only required to make “reasonable accommodation” under the Act, and that “reasonable accommodation” does not include granting plaintiff time off from work to travel to Memphis, Tennessee. Defendant’s reliance on Monroe is misplaced. The Court held in Monroe that an employer is not required to make work-scheduling accommodations for employee-reservists not made for other employees. The Court held that “reasonable accommodation” had been made in § 2024(d) by requiring employers to grant a leave of absence to reservists whose duties force them to miss time at work. The Monroe decision is inapposite here. Plaintiff has not made any claims that defendant should be required to reschedule work hours so that he would avoid missing work. He only claims that his employer must give him unpaid leaves of absence from work in order to travel to his reserve training duties in Memphis, Tennessee.

We conclude that defendant has an obligation to allow plaintiff time off from work in order to travel to Memphis, Tennessee, to attend military reserve inactive training.

We now turn to the second issue of whether plaintiff gave the defendant adequate notice that he would attend the reserve drill the weekend of January 8 and 9, 1983, and not be available for assigned overtime duties on January .8. The plaintiff is required to give notice to his. employer under 38 U.S.C. § 2024(d). Plaintiff alleges that he gave the defendant notice during a grievance hearing on December 9, 1982, that he would need the first nonholiday weekend in January 1983 off to attend a makeup drill. Defendant alleges that no such notice was given. Upon reviewing the deposition testimony, the court is of the opinion that the plaintiff did indeed notify defendant during the grievance hearing that he would need this weekend off in January 1983. Not only did plaintiff testify to this fact, but Lucille White and Stan Hall, who were present at the second-step grievance hearing, testified that the plaintiff told both Mr. Dickey and Mr. Holland that he would have to attend the makeup drill and asked them if thirty days notice would be adequate. They further testified that he was told thirty days notice was sufficient. Henry Duron, who was also present, testified that he recalls plaintiff telling Dickey and Holland that he would have to make up the missed training, but he does not recall if plaintiff mentioned a specific date. Dickey and Holland both testified that they did not recall plaintiff ever giving them such notice. Further, the minutes of the grievance hearing reflect that plaintiff notified defendant that he would need the first nonholiday weekend in January 1983 off to attend a make-up drill. The court believes that plaintiff did tell Steve Dickey and Pat Holland at the grievance hearing that he would require the first nonholiday weekend in January 1983 off to attend a makeup drill. Defendant argues that when a list of employees scheduled to work on Saturday, January 8, was posted on January 6, the plaintiff should have again notified them that he was scheduled for this makeup drill. However, in light of the fact that defendant had previously denied plaintiff time off to travel to Memphis to attend reserve training, we cannot say that it was unreasonable for plaintiff not to remind defendant that he needed the weekend off. Actually, the earlier denial is what precipitated plaintiffs need to attend a makeup drill in January.

As to the third issue of whether plaintiff was terminated as a result of attending inactive duty training, or whether he was terminated upon other grounds, the court is convinced that the plaintiff was terminated because he did not show up for work on January 8, 1983. Because defendant was under an obligation to permit plaintiff to attend reserve training on January 8, 1983, the conclusion is inescapable that plaintiff was terminated as a result of attending that training. Defendant argues that plaintiff had had numerous absences and tardies and was on disciplinary steps, and that it “had abundant grounds to terminate plaintiff irrespective of his reservist duties.” Defendant states that “plaintiffs dismissal on January 10 relates to adequate notice in the context of his overall work record — not from mere attendance at the January makeup reserve duty as plaintiff charges.” Regardless of plaintiffs overall work record, he was terminated as a result of not working January 8, 1983. Plaintiff did not work January 8, 1983, because he was attending inactive duty training in Olathe, Kansas, of which he had notified his employer a month previous.

In summary, the court reaches the following conclusions with regard to the three issues submitted.

(1) Defendant has a duty to allow plaintiff a monthly leave of absence from work on a regularly assigned work day in order to travel to Memphis from Kansas City to attend military reserve inactive training.
(2) Plaintiff gave defendant adequate notice that he would attend a reserve drill the weekend of January 8 and 9, 1983, and would not be available for assigned overtime duties on January 8, 1983.
(3) Plaintiff was terminated as a result of attending inactive duty training on January 8, 1983.

Plaintiff is entitled to reinstatement and back pay. Defendant contends that the back pay award should be reduced by the unemployment compensation plaintiff received. The court in Mendaloff, supra, held that an action under the Vietnam Era Veterans’ Readjustment Assistance Act is analogous to a Title VII employment discrimination case. The Mendaloff court followed the Title VII decisions that refuse to offset unemployment compensation against back pay awards, because to do so would undercut the corrective force of a Title VII back pay award. The Tenth Circuit Court of Appeals has held that in Title VII actions the decision whether to reduce the back pay award by the amount of unemployment compensation is within the discretion of the trial court. E.E.O.C. v. Sandia Corp., 639 F.2d 600 (10th Cir.1980).

We have held that unemployment compensation should not be used to reduce back pay. “Unemployment compensation is a collateral source awarded by the state in furtherance of a separate social policy. It would not be fair to allow the defendant ... to reap benefits from its own discriminatory action.” Davis v. Midland Broadcasters, Inc., No. 82-4061 (D.Kan., unpublished, 2/29/84) (citing Craig v. Y & Y Snacks, Inc., 721 F.2d 77 (3d Cir.1983); Brown v. A.J. Gerrard Manufacturing Co., 715 F.2d 1549 (11th Cir.1983) (en banc) (per curiam); Kauffman v. Sidereal Corp., 695 F.2d 343 (9th Cir.1983) (per curiam), E.E.O.C. v. Ford Motor Co., 645 F.2d 183 (4th Cir.1981), rev’d on other grounds, 458 U.S. 219, 102 S.Ct. 3057, 73 L.Ed.2d 721, adhered to original position on remand, 688 F.2d 951 (1982) {per curiam)). We recognize authority that unemployment compensation should offset back pay in Vietnam Era Veterans’ Readjustment Assistance Act eases. Chemoff v. Pandick Press, Inc., 440 F.Supp. 822, 826-27 (S.D.N. Y.1977); Chaltry v. Ollie’s Idea, Inc., 546 F.Supp. 44, 51 (W.D.Mich.1982); Green v. Oktibbeha County Hospital, 526 F.Supp. 49 (N.D.Miss.1981). We find the cases that prohibit the offset of unemployment compensation to be more persuasive. Therefore, plaintiff’s back pay award shall not be reduced by the amount of unemployment compensation he received. However, any income plaintiff received from other employment, such as his income from painting and installing cable television, must be subtracted from the back pay award.

The award of prejudgment interest is in the discretion of the trial court. Hanna v. American Motors Corp., 724 F.2d 1300, 1311 (7th Cir.1984). The trial judge’s discretion must be guided by the principle of making whole the plaintiff. Id. The defendant’s “good faith” is of no consequence in a case arising under the Vietnam Veterans’ Readjustment Act. Id. We conclude that plaintiff is entitled to an award of prejudgment interest and that an appropriate rate of interest is the statutory rate in Kansas of 10 percent. K.S.A. 16-201.

Plaintiff’s counsel is directed to prepare, circulate and submit for the court’s approval an appropriate Journal Entry of Judgment in accordance with the foregoing Memorandum and Order.

IT IS SO ORDERED.


author: BENJAMIN F. GIBSON, District Judge.

text:
    Bruce STEIN and Martha Dahlinger, Plaintiffs, v. PLAINWELL COMMUNITY SCHOOLS, et al., Defendants.
    No. K85-197 CA.
    United States District Court, W.D. Michigan, S.D.
    March 22, 1985.

      Ross E. Chapman, Deming, Hughey, Lewis, Reiser, Allen & Chapman, P.C., Kalamazoo, Mich., Robert A. Sedler, Detroit, Mich., for plaintiffs.
    Lawrence J. Murphy, Howard & Howard, Kalamazoo, Mich., for Portage Public Schools & Conti.
    Douglas W. Peterson, Gemrich, Moser, Dombrowski, Bowser & Fette, Kalamazoo, Mich., for Plainwell Community Schools & Jones.
   OPINION

BENJAMIN F. GIBSON, District Judge.

Plaintiffs, parents of children graduating this year from the defendant public school districts, bring this action pursuant to 42 U.S.C. § 1983 to enjoin the defendants from including invocations and benedictions in their graduation ceremonies. Plaintiffs contend that, if defendants proceed with their plans to include these forms of prayer in the graduation ceremonies, they will violate the establishment clause of the first amendment.

I. FACTUAL BACKGROUND

The parties have stipulated to the facts relevant to this motion for preliminary relief. Set forth below are summaries of the general facts of each case. Other pertinent facts are incorporated into the Court’s discussion of the applicable law.

The Plainwell Community School district plans to hold its annual high school commencement on June 6, 1985, at an outdoor athletic facility. Attendance by graduating seniors is voluntary, and receipt of diplomas is not conditioned upon attendance.

Plainwell has included invocations and benedictions as a regular part of past high school commencement exercises. Since 1980, the general practice has been to have one graduating senior offer an invocation and a different senior a benediction. The students who offer the invocation and benediction are volunteers chosen from the group of honor students who audition, but are not selected, to give the two commencement addresses.

The students are advised to keep the invocation and benediction brief. Prior to the commencement, they are required to practice before the school’s speech instructor, but the administration in no way attempts to monitor the content of their presentations.

The Portage Public School district is planning to hold commencement exercises for Portage Central High School on May 31, 1985. The ceremony will be held in the high school football stadium. As with the Plainwell graduation, attendance is voluntary, and receipt of diplomas is not conditioned on attendance.

For the past fifteen years, the school has permitted the graduating seniors to organize and develop the content of their own commencement exercises. During each of the fifteen years, the graduation ceremony has included an invocation and benediction delivered by a minister selected by representatives of the graduating class. The invocation and benediction account for approximately three minutes during a seventy-five minute ceremony.

Neither the school administrators nor the senior class representatives preview the content of the minister’s presentation. The minister is instructed, however, to keep the invocation and benediction nondenominational and short in time.

Neither the stipulations of fact regarding the Plainwell schools nor those regarding the Portage schools mention anything about the proposed content of the prayers. Nor do they provide information regarding the content of invocations and benedictions offered in past years.

II. APPLICATION OF THE LAW

This case is brought before the Court on a motion for a preliminary injunction. In determining whether an injunction should issue, the Court must consider:

1) Whether the plaintiffs have shown a strong or substantial likelihood or probability of success on the merits;
2) Whether the plaintiffs have shown irreparable injury;
3) Whether the issuance of a preliminary injunction would cause substantial harm to others;
4) Whether the public interest would be served by issuing a preliminary injunction.

Mason County Medical Association v. Knebel, 563 F.2d 256, 261 (6th Cir.1977).

In the context of this case, the focus of the Court is drawn to the first consideration, the probability of success on the merits. The second and third factors, in effect, cancel out each other. If the practice of saying invocations and benedictions at graduation ceremonies is not constitutional, the plaintiffs will be irreparably injured by having to submit to an unconstitutional practice. On the other hand, if it is constitutional, the Court would be infringing on the first amendment free speech rights of the students by enjoining them from carrying out their commencement exercises as planned. The fourth factor, the public interest, will be served if the constitution is upheld. Thus this factor, like the second and third, leads the Court back to an inquiry of the merits of plaintiffs’ claim.

The first amendment to the United States Constitution provides, in part, that there shall be “no law respecting the establishment of religion.” The Supreme Court has held that the “establishment clause” applies with full force to state governmental bodies such as the Portage and Plain-well school boards. Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947).

The issue presented by the facts of this case falls into a grey area of establishment clause doctrine. On the one hand, the Supreme Court has ruled that the recitation of nondenominational prayers and the daily reading of the Bible in public school classrooms are barred by the establishment clause. Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962); Abington School District v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963). On the other hand, the Court has also.held that the Nebraska state legislature’s practice of opening each day with a prayer by a state-paid chaplain does not violate the establishment clause. Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983). The practice contested in this case, that of offering invocations and benedictions at high school graduations, falls into the grey area between these two extremes. Although a high school graduation involves public school students, as in Abington and Engel, it does not present a question regarding a daily routine that takes place in the classroom itself. Similarly, while the graduation ceremonies incorporate simple opening prayers as in Marsh, they do not present the legislative setting that was critical to the Court’s decision to uphold the practice in that case. Thus, this Court is charged with deciding whether the shade of grey presented by the facts of this case is closer to the white of Marsh or the black of Engel and Abington.

This Court finds, as have other courts that have considered this same issue, that it is only able to answer the question presented by carefully considering the specific factual context in which the issue arises. See Graham v. Central Community School District, 608 F.Supp. 531 (D.Iowa, 1985) (holding the practice unconstitutional); Doe v. Aldine Independent School District, 563 F.Supp. 883 (S.D.Texas 1982) (holding the practice unconstitutional); Grossberg v. Deusebio, 380 F.Supp. 285 (E.D.Va.1974) (holding the practice constitutional); Goodwin v. Cross County School District, 394 F.Supp. 417 (E.D.Ark.1973) (holding the practice constitutional); Wood v. Mount Lebanon Township School District, 342 F.Supp. 1293 (W.D.Pa.1972) (holding the practice constitutional).

The Court is guided in its determination by the test enunciated by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). In that case, the Court held that a governmental act that is challenged under the establishment clause is valid only if:

1) it has a secular legislative purpose;
2) its principal or primary effect is one that neither advances nor inhibits religion; and
3) it does not foster an excessive governmental entanglement with religion.

Id. at 612-13, 91 S.Ct. at 2111.

Although the Supreme Court has recently indicated an unwillingness to be strictly bound by the three prongs of the Lemon test, it still apparently relies on Lemon as a guide. See Lynch v. Donnelly, 465 U.S. 668,-, 104 S.Ct. 1355, 1362, 79 L.Ed.2d 604 (1984) (although stating that it could not be bound by the strictures of any single test, the Court nevertheless applied the three prongs of the Lemon test to the facts before it). A recent Sixth Circuit case similarly looked to the guidance of the Lemon test in resolving an establishment clause issue. Americans United for Separation of Church and State v. Grand Rapids School District, 718 F.2d 1389 (6th Cir.1983), cert. granted — U.S. -, 104 S.Ct. 1412, 79 L.Ed.2d 739 (1984). Accordingly, this Court will analyze this case by inquiring into the issues raised by the three prongs of the Lemon test.

The first issue for the Court is whether the Portage and Plainwell school districts have a valid secular purpose for including invocations and benedictions in their graduation ceremonies. Plaintiffs contend that the school districts have no valid secular purpose. After all, they argue, invocations and benedictions are prayers, and prayers are inherently religious.

The Court agrees only partially with plaintiffs’ characterization of the kind of prayer at issue here. Whether an invocation or benediction is “inherently religious” depends on one’s vantage point. For example, the Court assumes that the purpose of the minister offering the invocation and benediction at the Portage graduation will be to make supplication, albeit in a nondenominational form, to God. Thus, to the minister, the purpose of the prayer will be religious. At the same time, to some members of the audience, the invocation and benediction will be merely a formal way of opening and closing the graduation ceremony. To these people, the purpose of the prayer will be ceremonial. Thus, the Court recognizes a dual nature of prayer in this context, partly religious and partly ceremonial.

The Supreme Court has recently emphasized that, when determining whether the acts of a governmental body have violated the establishment clause, a court must look to that body’s purpose “in context.” Lynch v. Donnelly, 465 U.S. at-, 104 S.Ct. at 1362. In Lynch, the Court held that the district court erred by focusing on the religious nature of a nativity scene that was part of a city’s Christmas display. The lower court overlooked what the Supreme Court viewed as the secular nature of the display:

The City ... has principally taken note of a significant historical religious event long celebrated in the Western World. The creche in the display depicts the historical origins of this traditional event long recognized as a National Holiday.

465 U.S. at-, 104 S.Ct. at 1363. The Supreme Court did not deny that, to some, a nativity scene is a very important religious symbol. It recognized, however, the dual nature of a creche: as well as having religious significance, the creche has historical and cultural significance in our society. See also Abington School District v. Schempp, 374 U.S. 203, 225, 83 S.Ct. 1560, 1573, 10 L.Ed.2d 844 (1963) (although daily Bible readings violate the establishment clause, study of the Bible as an objective part of a secular program of education may be constitutional); Stone v. Graham, 449 U.S. 39, 42, 101 S.Ct. 192, 194, 66 L.Ed.2d 199 (1980) (per curiam) (although the establishment clause does not permit posting the Ten Commandments as a religious admonition, the practice of integrating them into an appropriate study of history, civilization, ethics or comparative religion may survive constitutional scrutiny).

Given the dual nature of the kind of prayer at issue in this case, the Court must not be misled by looking solely at the purpose of the person who is delivering the prayer. Even if the purpose of the speaker is purely religious, the practice may still be constitutional if the purpose of the sponsoring governmental body is primarily secular. See Widmar v. Vincent, 454 U.S. 263, 271-73, 102 S.Ct. 269, 275-76, 70 L.Ed.2d 440 (1981) (a university’s policy of providing equal access for all student groups to university facilities does not violate the purpose prong of the Lemon test when some student groups use the facilities for admittedly religious purposes). Accordingly, the Court must look specifically at the purposes of the defendant school districts in sponsoring ceremonies that include short forms of prayer.

Unlike cases where the legislative history of a government’s action states its purpose, the record in this case contains no clear articulation of the purpose of the defendant school districts. The stipulations of fact, however, reveal at least two reasons why the school defendants have planned the ceremonies to include short forms of prayer.

First, both school districts are following a long tradition of including invocations and benedictions in their ceremonies. Although “no one acquires a vested or protected right in violation of the Constitution by long use ..., an unbroken practice ... is not something to be lightly cast aside.” Walz v. Tax Commissioner, 397 U.S. 664, 678, 90 S.Ct. 1409, 1416, 25 L.Ed.2d 697 (1970), quoted in Marsh, supra, 463 U.S. at 788-789,103 S.Ct. at 3334-35. In McGowen v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961), the Court upheld Maryland’s Sunday closing laws against an establishment clause challenge. After finding that the legislature had the valid purpose of providing one uniform day of rest, the Court found that the establishment clause was not violated when the state selected Sunday, the traditional sabbath of the majority of Christian faiths, as the proclaimed day of rest. Similarly, in this case, the school must provide some form of solemn opening and closing for these ceremonial events. The fact that they chose an opening and closing form from the Christian tradition is not itself reason to prohibit the practice.

Second, the schools have the purpose of permitting the students to either plan or participate in their own commencement exercises. The students of Portage High School are permitted to organize and develop their own graduation program. The fact that the students have, for the past fifteen years, chosen to include invocations and benedictions by local clergy does not mean that the decision of the school district to encourage the students to plan their own ceremony was motivated by any religious purpose. Plainwell High School, although not turning over the planning function to the students, encourages students to participate in the commencement exercises. Honor students are encouraged to audition to give the two student commencement addresses. Of those honor students who audition but are not selected to give the major addresses, the school solicits two volunteers to give the invocation and benediction. The school does not seek to control the content of the students’ prayers. Thus, it appears that once the school meets its objective of picking an additional two students to participate in the ceremony, it has no further involvement.

In addition finding these two valid secular purposes, the Court is influenced by the fact that there is no evidence of a secret purpose of the school district to proselytize the audience to accept the tenets of any particular faith. See Marsh, supra, 463 U.S. at 790-791, 103 S.Ct. at 3335 (noting that the framers of the first amendment did not consider legislative opening prayers to be a proselytizing activity or a means of symbolically placing the government’s official seal of approval on one religious view). Thus, this case can be distinguished from Graham v. Central Community School District, supra, where the record revealed that, on at least one occasion, Christian prayer was permitted in the classroom, that Gideon Bibles were distributed to students in the classroom, and that the president of the school board had remarked that she hoped that plaintiffs’ children could be exposed to Christianity in school. Similarly, this case can be distinguished from Doe v. Aldine Independent School District, 563 F.Supp. 883, 885 (S.D. Texas 1982) where the record showed that the singing of a school prayer was frequently initiated by the principal or another employee of the public school.

Even if the purpose of defendant school districts is primarily secular, the practice of offering prayers at graduation will violate the establishment clause if the Court finds that the principal or primary effect of including invocations and benedictions is to advance religion. Lemon v. Kurtzman, 403 U.S. at 612, 91 S.Ct. at 2111. Based on the facts before the Court in this case, the Court has concluded that this “primary effect” prong is not violated. The Court finds a number of factors pivotal to its decision.

First, the graduation ceremony is not a mandatory part of the school curriculum. The Court recognizes that the voluntary nature of the exercises itself is not dispositive. See Engel v. Vitale, 370 U.S. at 430, 82 S.Ct. at 1266 (although the school district permitted students to leave the room during opening prayers, the Court held that the fact that the prayers were voluntary did not “serve to free it from the limitations of the Establishment Clause”); Lemke v. Black, 376 F.Supp. 87, 89 (E.D. Wis.1974) (voluntariness of attendance at graduation ceremony not dispositive). Yet, one effect of the voluntary nature of the commencement is that it minimizes the sense of the audience that the school is endorsing the content of the exercises. See Wood v. Mount Lebanon School District, 342 F.Supp. 1293, 1294 (W.D.Pa.1972).

Similarly, the fact that speakers other than school employees deliver the invocations and benedictions and that the schools have no control over their content serves to minimize the sense that the school is endorsing any religious position. See Wood, supra at 1294. Unlike the case in Engel v. Vitale, supra 370 U.S. at 425, 82 S.Ct. at 1264, the school itself is not composing a prayer. Unlike the facts of Graham v. Central Community School District, supra at 532-533, the school board itself does not decide whether the graduation ceremony will include an invocation and benediction. Again, the Court recognizes that the fact that the school acquiesces in the decisions of the students, rather than affirmatively acts itself, cannot alone be dispositive. See Collins v. Chandler Unified School District, 644 F.2d 759, 761 (9th Cir.) (the “cases support no meaningful distinction between school authorities actually organizing the religious activity and officials merely ‘permitting’ students to direct the exercises”), cert. denied, 454 U.S. 863, 102 S.Ct. 322, 70 L.Ed.2d 163 (1981). Nevertheless, as with the voluntary nature of the exercises, it is a factor that serves to minimize the sense that the school is endorsing a particular religious position.

Third, there is no danger of daily indoctrination. The contested prayers take only a few minutes, are given only once a year, and reach a different audience each time. Compare Engel v. Vitale 370 U.S. at 438, 82 S.Ct. at 1270 (prayer read at beginning of each day); Abington School District v. Schempp, 374 U.S. at 205-11, 83 S.Ct. at 1562-65 (Bible read daily).

Fourth, the makeup of the audience at the graduation ceremonies lessens the possibility that any part of the ceremony could have the effect of advancing religion. The plaintiffs alleging injury in this case, both parents of graduating seniors, are adults who are “presumably not readily susceptible to ‘religious indoctrination’.” Marsh, supra, 463 U.S. at 790-791, 103 S.Ct. at 3335; see also Collins v. Chandler Unified School District, 644 F.2d at 762. Other than parents, the majority of the audience at graduation will consist of the graduating seniors themselves, many of whom are legally adults, most of whom are beyond the age where they are readily impressionable. Cf. Americans United for Separation of Church and State v. Grand Rapids School District, supra, at 1405 (noting a special concern because the shared-time program primarily assisted elementary schools).

Fifth, the graduation is not part of the educational program of the school. The purpose of the ceremony is not pedagogical; it is merely ceremonial. Because the audience does not attend the graduation with the expectation of receiving instruction, religious or otherwise, the Court finds it difficult to believe there is any danger of the school being perceived as attempting to advance religion. Rather, the invocation and benediction will be viewed in the ceremonial context, as a commonplace ritual that the graduating seniors are likely to observe at many private and public ceremonies that they attend in the remainder of their adult lives. See Grossberg v. Deusebio, 380 F.Supp. at 289 (noting a common practice of using invocations at public functions); Wood v. Mount Lebanon Township School District, 342 F.Supp. at 1295 (“such customary remarks are commonplace in our society”); see also Lynch v. Donnelly, 465 U.S. at-, 104 S.Ct. at 1360-61 (detailing examples of official acknowledgement of religious values); Zorach v. Clauson, 343 U.S. 306, 312-13, 72 S.Ct. 679, 683, 96 L.Ed. 954 (1952) (detailing examples of public references to God).

Finally, there is no evidence that the speakers intend to use the invocations and benedictions as an opportunity to proselytize. In this regard, the Court’s analysis is handicapped by the summary nature of these proceedings and the slender stipulation of facts. The facts that are before the Court, however, simply do not compel the conclusion that the primary effect of the practice of including benedictions and invocations at the graduations will be to advance religion.

The third prong of the Lemon test directs the Court to consider whether the practice of including short prayers at graduation ceremonies fosters excessive governmental entanglement with religion. The Court finds that the entanglement prong is not violated in this case. A once-a-year ceremony requiring minimal relations between school officials and local clergy does not present the kind of entanglement prospects that the courts have found violative of the establishment clause. See, e.g., Americans United for Separation of Church and State v. Grand Rapids School District, 718 F.2d at 1400-03, 1407-08 (entanglement problems posed by shared time program).

In summary, the Court concludes that the proposed plans for graduation at Portage and Plainwell High Schools, as developed in the facts before the Court, are motivated by secular purposes of the school districts, do not have the primary effect of advancing religion, and will not foster excessive entanglement of government with religion. Thus, under the analysis of Lemon, the Court is directed to a conclusion that the proposed practices do not violate the establishment clause. Accordingly, plaintiffs’ motion for a preliminary injunction is denied.

      . The school deviated from this practice in 1982 when the senior class officers invited a local Baptist minister to offer the invocation and benediction.

        . It is not clear to the Court whether "nondenominational” means harmonious with both Christian and Judaic beliefs or just harmonious with all Christian beliefs. The Court has assumed the latter.

      . Counsel for plaintiffs conceded at oral argument that, under the rationale of Marsh, the offering of an invocation or benediction at the meetings of the Plainwell and Portage school boards would not offend the establishment clause.

      . Of course, the purpose of the speaker may be some evidence as to the purpose of the governmental body.

      . See, e.g., Lemon v. Kurtzman, 403 U.S. 602, 613, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971).

      . In Marsh, the Supreme Court noted that
      [t]he content of the prayer is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief. That being so, it is not for us to embark on a sensitive evaluation or to parse the content of a particular prayer.
      463 U.S. at 794-795, 103 S.Ct. at 3337.


author: TERENCE T. EVANS, District Judge.

text:
    Joanne M. ZYWICKI, Plaintiff, v. MOXNESS PRODUCTS, INC., DIV. OF VERSA TECHNOLOGY, INC., and Jay Borroughs, Defendants.
    Civ. A. No. 82-C-1334.
    United States District Court, E.D. Wisconsin.
    March 28, 1985.

      Arthur Heitzer, Milwaukee, Wis., for plaintiff.
    James R. Scott, Lindner, Honzik, Mar-sack, Hayman & Walsh, Milwaukee, Wis., for defendants.
   DECISION and ORDER

TERENCE T. EVANS, District Judge.

Defendants have moved for summary judgment, raising the issue of the preclusive effect to be accorded a decision of the Wisconsin Department of Industry, Labor, and Human Relations (DILHR) finding no probable cause to believe that sex discrimination or sexual harassment had occurred.

Joanne Zywicki filed a charge of discrimination with the United States Equal Employment Opportunity Commission (EEOC). The charge arose out of the termination of her employment at Moxness Products, Inc. in July, 1977. The charge was referred to the Equal Rights Division of DILHR. It was investigated, and on October 17,1979 a decision was issued concluding that there was no probable cause to believe that discrimination had occurred. Zywicki appealed that decision, and a hearing was held before a hearing examiner of the Equal Rights Division. On February 23, 1982, the hearing examiner concluded that she was not the victim of sexual discrimination or sexual harassment. The Commission adopted the hearing examiner’s decision on January 14, 1983. In the meantime, on March 3, 1982, the EEOC issued its determination that there was no probable cause to believe discrimination had occurred. Zywicki then filed the present lawsuit.

During the course of this lawsuit the defendants filed a motion for summary judgment seeking to have the sexual harassment claims dismissed on the basis that they were not included in Zywicki’s charge before the EEOC. That motion was denied on September 11, 1984.

In Wisconsin DILHR is designated by the EEOC to investigate complaints filed with the EEOC. DILHR has investigative and conciliation functions similar to the EEOC. In addition, however, it holds adjudicatory hearings and is empowered to award a full range of remedial relief including back pay, reinstatement, attorney’s fees, and interest. The decisions of the Equal Rights Division of DILHR are appealable to Wisconsin state courts.

Because DILHR held an adjudicatory hearing in this case, defendants have moved for summary judgment on the basis that that decision is res judicata in this action.

In Kremer v. Chemical Construction Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982), the Supreme Court ruled that a decision of a state court to uphold a state administrative agency’s investigatory dismissal of an employment discrimination claim has preclusive effect whenever the state court’s decision would be res judicata in the state’s own courts. In a footnote, however, the court stated at page 470, 102 S.Ct. at 1891:

EEOC review of discrimination charges previously rejected by state agencies would be pointless if the federal courts were bound by such agency decisions. Batiste v. Furnco Constr. Corp., 503 F.2d 447, 450, n. 1 (CA7 1974), cert. denied, 420 U.S. 928 (1975). Nor is it plausible to suggest that Congress intended federal courts to be bound further by state administrative decisions than by decisions of the EEOC. Since it is settled that decisions by the EEOC do not preclude a trial de novo in federal court, it is clear that unreviewed administrative determinations by state agencies also should not preclude such review even if such a decision were to be afforded preclusive effect in a State’s own courts. Garner v. Giarrusso, 571 F.2d 1330 (CA5 1978); Batiste v. Furnco Constr. Corp., supra; Cooper v. Philip Morris, Inc., 464 F.2d 9 (CA6 1972); Voutsis v. Union Carbide Corp., 452 F.2d 889 (CA2 1971), cert. denied, 406 U.S. 918, 92 S.Ct. 1768, 32 L.Ed.2d 117 (1972).

The question here becomes, does this footnote leave open the issue of the deference a federal court must give an unreviewed administrative decision where, as here, the state agency acted in a judicial capacity, the parties had an adequate opportunity to litigate the disputed issues of fact and there was an opportunity — not taken — of state court review of the decision. Defendants cite Buckhalter v. Pepsi-Cola General Bottlers, Inc., 590 F.Supp. 1146 (N.D.Ill.1984), which held that an adjudicative agency decision had preclusive effect. Judge Bua’s decision in Buckhalter, a case that presents facts identical to those in this case, discusses the Kremer footnote and concludes that despite it, preclusive effect should be given to the state agency adjudication. I agree with the reasoning of Judge Bua. How many times, one might ask, must a defendant win the game before the match is over? Under the facts of this case, once should be enough.

Here, hearings were conducted on March 18,1980, August 27, 1980, August 29, 1980, and November 6, 1980. At all times, Ms. Zywicki was represented by counsel. In addition to her own testimony Ms. Zywicki presented nine witnesses, including four supervisory employees of Moxness who appeared pursuant to her subpoenas. The hearings generated a transcript that exceeded 600 pages. Briefs and arguments were presented and, on February 23, 1982, the hearing examiner (an attorney) issued a decision concluding that sex discrimination and harassment had not occurred. Review was taken to the state’s Labor and Industry Review Commission and, on January 14, 1983, the finding of no discrimination was upheld. Zywicki did not seek further state court review although it was available.

For the reasons stated by Judge Bua in Buckhalter, reasoning that I adopt, no further litigation here on Zywicki’s claim should be permitted. Accordingly, the defendants’ motion for summary judgment is granted.

IT IS THEREFORE ORDERED that defendants’ motion for summary judgment is GRANTED.


author: KEVIN THOMAS DUFFY, District Judge:

text:
    Frank WOHL, Temporary Receiver for Volume Investors Corp., Plaintiff, v. Gerald WESTHEIMER (a/k/a Jeffrey Westheimer), Valerie Westheimer and James Paruch, Defendants.
    No. 85 Civ. 2230 (KTD).
    United States District Court, S.D. New York.
    April 4, 1985.

      Barrett Smith Schapiro Simon & Armstrong, New York City, for plaintiff; William O. Purcell, Edmund R. Schroeder, Eileen J. Berkman, Jack G. Lerner, New York City, of counsel.
    Finley, Kumble, Wagner, Heine, Under-berg, Manley & Casey, New York City, for defendants Gerald and Valerie Westheimer; Jeffrey A. Fillman, Stuart K. Lesansky, David Burger, New York City, of counsel.
    Lovell & Stewart, New York City, for defendant James Paruch; Christopher Lovell, New York City, of counsel.
   OPINION

KEVIN THOMAS DUFFY, District Judge:

Trading in gold options is a highly volatile market where fortunes can be made and lost in one day. This case should stand as a reminder that the fallout from an explosive day in the gold market can affect not only the traders in that market but can also have a detrimental effect on the market place, including the organized exchanges dealing in gold, the exchange clearing house, the members of the exchange, and the innocent public customers of member firms, which customers may not even be involved in the trading of gold or gold options. Such explosive trading happened between the opening of trading on the Commodities Exchange (“COMEX”) on Monday, March 18, 1985 and the close of trading on Tuesday, March 19, 1985, when the price of gold surged by approximately $44 per ounce.

Valerie and Gerald Westheimer as members of the COMEX have been, for the last year, involved in the trading of gold options. On March 18th, the accounts of the Westheimers and another exchange member, James Paruch, whose accounts were guaranteed by the Westheimers, were each near the maximum of 4,000 short gold call options for a total of approximately 12,000 short gold call options. While members of the exchange may trade freely with each other, they are required to clear their accounts by either being a member of the COMEX clearing house or by funneling their trades through a member of the clearing house. The COMEX clearing house matches the trades from the floor every evening after the close of trading and by the following morning renders an account to each clearing member crediting the member with the gains or losses from the previous day’s trading. Where margin trading is permitted, the clearing house bills the member for margin every morning and is entitled to payment by 11:00 a.m., just a few short hours after the account is rendered. Thus, each clearing member prepares an account for each of its customers (including non-clearing members of the COMEX) on an overnight basis and attempts to have margin calls paid before its 11:00 a.m. deadline for required payment to the clearing house.

On Wednesday, March 20, 1985, Volume Investors Corp. (“VIC”), the brokerage firm through which the Westheimers and Mr. Paruch cleared their trades, missed a multi-million dollar margin call because of trades made by the defendants. VIC and all of the defendants were immediately suspended from trading on the COMEX and notification of this action and the reasons therefor was given to the Commodity Futures Trading Commission (“CFTC”) and the various other exchanges.

On March 21, 1985, the CFTC commenced an action against VIC (85 Civ. 2213 (KTD)) alleging violations of the Commodity Exchange Act and the regulations promulgated thereunder arising from the missed margin call. In the early morning hours of March 21st, the CFTC presented to the Part I judge, at her home, a proposed order providing for injunctive relief against VIC and the appointment of a temporary receiver. The order was signed and the plaintiff was appointed. This action was subsequently assigned to me.

Almost simultaneously with his appointment, the temporary receiver commenced an action against the Westheimers and James Paruch, (85 Civ. 2230 (RLC)), alleging basically that they breached a customer agreement that they signed upon opening accounts at VIC which obligated them to maintain sufficient margin in their accounts at VIC. This second action, though initially assigned to Judge Carter, was reassigned to me as a related case. At the same time that the temporary receiver commenced the action against the Westheimers and Mr. Paruch, an application was made, by Order to Show Cause, for an order of attachment against the assets of the three defendants and specifically with respect to $3.4 million which had been transferred, at the direction of Valerie Westheimer, to Lazard Freres & Co. (“Lazard Freres”), which brokerage firm was to convert the monies into bearer securities. The request for an attachment with respect to Mr. Paruch’s assets became moot when the parties stipulated to an arrangement concerning his assets. A hearing on the request for attachment was thereafter scheduled for Wednesday, March 27, 1985.

On March 27th, certain preliminary matters were disposed of and shortly thereafter, a third action was commenced by the Westheimers against a myriad of individuals including the President of VIC, CO-MEX, and the temporary receiver. (85 Civ. 2388 (KTD)). The Westheimers allege that the defendants manipulated the price of futures and options and in other, yet undefined ways, caused the losses suffered by the Westheimers. Upon the commencement of this action, the Westheimers moved by Order to Show Cause seeking a variety of relief including the appointment of a special master to supervise discovery, expedited discovery, the removal of the receiver, an injunction against COMEX’s prosecution of administrative proceedings, and the impounding of certain documents. At the hearing held on March 28, 1985, most of this requested relief was denied, and to the extent I did not address any of the requests included in the Westheimer’s Order to Show Cause, with one exception, they are formally denied.

The exception involves the appointment of a receiver in this matter. The temporary receiver, Frank Wohl, is assertedly a recent former member of the law firm of Rosenman, Colin, Freund, Lewis & Cohen, counsel for VIC. As such, he is alleged to have a conflict of interest; but on the record developed thus far, it is impossible to determine. Accordingly, Mr. Wohl is directed to submit an affidavit which sets forth any factors that may be relevant in ascertaining the nature and extent of any potential conflict.

ATTACHMENT

Frank Wohl, as temporary receiver for VIC, pursuant to Fed.R.Civ.P. 64 and N.Y. Civ.Prac.Law and Rules (“CPLR”) §§ 6201, 6210, and 6212, seeks an order of attachment directing the levy upon “such property in which the defendants have an interest and upon such debts owing to the defendants as will satisfy the amount of not less than $14 million.”

CPLR § 6212(a) provides that:

On a motion for an order of attachment, ... the plaintiff shall show, by affidavit and such other written evidence as may be submitted, that there is a cause of action, that it is probable that the plaintiff will succeed on the merits, that one or more grounds for attachment provided in section 6201 exist, and that the amount demanded from the defendant exceeds all counterclaims known to the plaintiff.

CPLR § 6212(a) (McKinney 1980). The section 6201 ground relied on by the temporary receiver provides that:

An order of attachment may be granted ... when:
3. the defendant, with intent to defraud his creditors or frustrate the enforcement of a judgment that might be rendered, in plaintiff’s favor, has assigned, disposed of, encumbered or secreted property, or removed it from the state or is about to do any of these acts.

CPLR § 6201 (McKinney 1980).

The provisional remedy of attachment is a harsh remedy, see First National Bank v. Highland Hardwoods, Inc., 98 A.D.2d 924, 471 N.Y.S.2d 360, 362 (3d Dep’t 1983), and when the plaintiff is asserting that the attachment is necessary to prevent the perpetration of a fraud on creditors, the plaintiff must show that the defendant act*ed or is acting with an intent to defraud which intent will not be lightly inferred, see Brastex Corp. v. Allen International, Inc., 702 F.2d 326, 331 (2d Cir.1983).

There is no question that the first two elements in section 6212(a) are satisfied. It is clear that the Westheimers were obligated to supply VIC, on demand, additional margin before 11:00 a.m. the day after the trading occurred. It is undisputed that each of the Westheimers, upon opening their respective accounts with VIC, signed a “Commodity Customer Agreement” and an “Options Disclosure Statement.” The latter statement provided, in large print, that:

BECAUSE OF THE VOLATILE NATURE OF THE COMMODITIES MARKETS, THE PURCHASE AND GRANTING OF COMMODITY OPTIONS INVOLVE A HIGH DEGREE OF RISK.... SUCH TRANSACTIONS SHOULD BE ENTERED INTO ONLY BY PERSONS WHO HAVE READ AND UNDERSTOOD THIS DISCLOSURE STATEMENT.... A PERSON SHOULD NOT PURCHASE A COMMODITY OPTION UNLESS HE IS ABLE TO SUSTAIN A TOTAL LOSS OF THE PREMIUM AND TRANSACTION COSTS OF PURCHASING THE OPTION. A PERSON SHOULD NOT GRANT A COMMODITY OPTION UNLESS HE IS ABLE TO MEET ADDITIONAL CALLS FOR MARGIN WHEN THE MARKET MOVES AGAINST HIS POSITION, AND, IN SUCH CIRCUMSTANCES, TO SUSTAIN A VERY LARGE FINANCIAL LOSS.

See Plaintiff’s Exh. 1.

The margin provisions in the Commodity Customer Agreement are equally unambiguous. The Westheimers testified at the hearing that they did not read any of the documents that they signed at the time that they opened their accounts at VIC. I find such a statement to be incredible. Even if it were true, however, it is no excuse; they are legally chargeable with knowledge of what they sign. Furthermore, given the educational, personal, and professional backgrounds of both defendants, I find completely unbelievable their testimony that they were only “vaguely aware of” margin requirements imposed on them and/or VIC.

Thus, it is apparent that plaintiff both has a cause of action against the Westheimers and is likely to succeed on the merits. The issues left to be resolved are: (1) whether the receiver had a cause of action against the defendants which exceeded all counterclaims, and (2) whether these defendants were about to secrete their assets or remove them from the jurisdiction of the court so as to defraud their creditors.

In his case, the receiver proved his prima facie claim for approximately $14 million against the defendants and there was no showing of any viable counterclaim. Thus, plaintiff prevailed on the first issue. On the second item, however, the direct case showed merely that when their fragile house of cards in the gold options market collapsed, one of the defendants made the comment that it would be better to leave the country with their remaining assets. If the case had ended at that point, I would have found against the receiver on this second crucial issue and denied the attachment. I could well see such a comment being made as a sort of gallows humor. But the defendants chose to put in a case. And based in great part on the motives disclosed by the tissue of lies they tried to spin in their testimony, the admissions they made, and the rebuttal case introduced, I am compelled to issue the requested attachment orders to prevent the fraud on creditors obviously contemplated by the Westheimer defendants.

There was testimony adduced at the hearing that, on a daily basis in the morning, certain documents, including individual account statements and margin requests, if any, were prepared by Saul Dworkin, Executive Vice President and Operations Manager of VIC, or his assistant, Kim Tully, and thereafter taken by a “runner,” Thomas O’Brien, to the customer or his designated representative. See Transcript (“Tr.”) 115-16. The account statements for the Westheimers’ accounts and the Paruch account, which had been guaranteed by the Westheimers, were delivered on a daily basis to one of the clerks employed by the Westheimers on the floor of the Exchange. A phone call was also máde prior to 9:00 each morning by Dworkin or his assistant to Valerie Westheimer at her home informing her of the status of the three accounts and the need for margin, if any.

Kim Tully testified that on the morning of March 19th, Saul Dworkin was not at VIC, and therefore she prepared the margin requests for the Westheimers’ accounts and the Paruch account, see Plaintiff’s Exh. 3, and spoke to Valerie Westheimer on the phone. See Tr. 400. Mrs. Tully testified that she told Mrs. Westheimer the amount of Treasury Bills and the total equity in the accounts and the initial margin. See id. at 401. Mrs. Tully further stated that she did not recall whether she used the words “margin call” or “margin request” but did testify that she specifically told Mrs. Westheimer that approximately $1.8 million had to be deposited immediately for Gerald Westheimer’s account, approximately $1.4 million for James Paruch’s account, and approximately $700,000 for Valerie Westheimer’s account. See id. at 402. Mrs. Tully then asked Mrs. Westheimer when she could expect the $4 million transfer and Mrs. Westheimer apparently indicated that she would get back to Mrs. Tully. Later, Mrs. Tully stated, Valerie Westheimer telephoned VIC and informed her that $1.5 million was being transferred to VIC. Mrs. Tully told Mrs. Westheimer that $1.5 million was insufficient and then Mrs. Tully contacted Owen Morrissey, the President of VIC and Mr. Dworkin. See id. at 403.

Harry Rosenberg of Lazard Freres also testified at the hearing. See id. at 394-400. The following facts are adduced from his testimony as well as the Affidavit of Fred Michael Santo, Esq.: On Wednesday, March 20, 1985, at 4:01 p.m., Valerie Westheimer transferred to Lazard Freres $3.4 million and directed that the funds be used to purchase bearer securities to be paid out to a person named “Rose McFarland.” Mr. Rosenberg testified that Mrs. Westheimer wired the funds to Lazard Freres after being told that it would take approximately one week to cdmplete the settlement of the transaction. Mr. Rosenberg testified that before wiring the funds, Mrs. Westheimer indicated that she needed to purchase the securities as quickly as possible and mentioned by way of rationale for the transaction, a pending divorce.

I find from the combined testimony of Owen Morrissey, Saul Dworkin, Kim Tully, and Harry Rosenberg that the Westheimers were properly informed of the status of their accounts including that a margin call was being made on March 19th and that they had the funds necessary to meet the call but instead attempted to secrete from their creditors at least $3.4 million of assets. Mrs. Tully and Mr. Rosenberg testified after the defendants put in their case. Had the plaintiff rested after his initial case was presented, consisting only of Mr. Dworkin and Mr. Morrissey, I would have been constrained to deny the attachment order as the only evidence of an intent to defraud seemed to be a passing statement by the Westheimers, subject to different interpretations, that they would be better off if they left the country. However, once the Westheimers testified, combined with the testimony of Mr. Rosenberg and Ms. Tully, I determined that an order of attachment is not only justified, it is necessary to prevent financial injury to innocent parties.

The Westheimers were not merely evasive in their testimony, they lied! Both Westheimers testified repeatedly that nothing was ever said to them regarding a margin call or request. Both testified that they did not know that margin was due from them upon the 19th, 20th, or 21st.

Gerald Westheimer, a graduate of MIT with a degree in Nuclear Engineering, became interested in the commodities field through his father who was one of the founders of the COMEX in 1933. See Tr. at 196. In 1967, Westheimer left the engineering field and joined a brokerage firm as a clerk. He became a broker and junior partner and left that firm after three years to join Floor Brokers Associates. See id. He became a senior partner and at some point was the managing partner. In 1982, after 12 or 13 years, Gerald Westheimer left Floor Brokers Associates to form with the brother of the defendant Paruch a small brokerage operation involved in executing copper trades on the COMEX. See id. at 197. Valerie Westheimer, who holds a graduate degree in Mathematics from the Courant Institute of Mathematical Sciences at NYU, owned a membership on the CO-MEX as far back as 1975. See id. at 302. Valerie Westheimer relinquished her seat on the COMEX when it moved to the World Trade Center, but in July of 1984, she had her membership reinstituted. See id. at 355.

The Westheimers became customers of VIC in July and August of 1984. These accounts, along with the Paruch account, guaranteed by the defendants, were used to trade gold future options. Gerald and Valerie Westheimer were so involved in dealing commodities that they had two monitors installed in their Park Avenue residence whereby they could get the quotations from the various security and commodity exchanges. Furthermore, they would receive phone calls both in the evening and then again in the morning from the overseas markets in London and elsewhere reporting on the price of gold and other commodities. The trading engaged in by the Westheimers was quite heavy at times. Each of the three accounts involved here was almost to the maximum allowed in gold. Gerald Westheimer testified that he often made his trades directly on the floor and that he and his wife employed at least three clerks to assist in that trading. Valerie Westheimer testified that she kept a record of all such trades at home and that the morning phone calls from Dworkin or his assistant at VIC were used by her to check the accuracy of VIC’s record of their accounts.

With the background of the Westheimers and the sophisticated nature of their business in mind, I find incredible their asserted ignorance of margin calls generally and VIC’s margin call to them specifically. For example, Gerald Westheimer testified, “I knew my position was not good. As far as margin, I had no idea — not no idea, but not a real good idea.” Tr. 204. In addition, Mr. Westheimer testified that although he could calculate the required margin and his loss, he made no attempt to do so. The Westheimers testified that they did not know the reason VIC required the $4 million on March 19, 1985. After darkness had fallen on the night of March 20, 1985 the Westheimer defendants were in constant contact with VIC. They left their Park Avenue apartment to journey to the offices of VIC, located at 160 Broadway, to discuss the “problem.” While they stated that even before they left their apartment, they requested that the Officials of CO-MEX and the clearing house be notified, they also testified that they did not know the extent of the “problem” even after meeting with VIC at its lower Broadway office. Saul Dworkin testified that he also went to VIC’s office that night to figure out the margin to be required for the Westheimer accounts. The Westheimers testified that they sat in the office with Dworkin for over an hour that night and that the only thing discussed was the weather. When they were asked for money on that evening, they testified that it was their understanding that it was needed to guarantee a buy-out price or for a consortium and that they really did not understand it but believed that a margin call was not being made because a resolution to “the problem” was being worked out. Again, given the mathematical backgrounds of both defendants, the calculations which they mentally performed almost instantaneously on the witness stand, and their history in the gold options market, I find this explanation completely untenable.

The only conclusion that I can draw from the blatant prevarications of the Westheimers and all of the evidence produced is that in fact they are of a mind to defraud their creditors and possibly abscond with their remaining assets to frustrate the enforcement of a judgment that might be rendered in plaintiffs favor. Valerie Westheimer testified that after a restraining order had been issued freezing all of her assets, she withdrew $1 million from an account at a bank that had yet to be notified of the restraining order. See Tr. 392. Mrs. Westheimer testified that this was done at the behest of her attorneys who presently have those monies.

Accordingly, a warrant of attachment will issue to the United States Marshal for all assets of the defendants Westheimer including the $1 million transferred to the law firm of Finley, Kumble, Wagner, Heine, Underberg, Manley & Casey.

It is further ordered that the undertaking be and the same hereby is fixed in the sum of $75,000, which amount the sum of $70,000 thereof is conditioned that the plaintiff will pay to the defendant all costs and damages including reasonable attorneys’ fees which may be sustained by reason of the attachment if the defendant recovers judgment or if it is finally decided that the plaintiff was not entitled to an attachment of the defendants’ property, and the balance thereof conditioned that the plaintiff will pay to the United States Marshal all of his allowable fees, and the plaintiff shall file such undertaking within ten (10) days of the entry of this Opinion.

SO ORDERED.

      . After the parties entered into a stipulation concerning Mr. Paruch, a motion was filed by Mr. Paruch on March 27, 1985 seeking damages, sanctions, and attorneys’ fees on the ground that the attachment against Mr. Paruch was frivolously sought. That motion is denied.

      . Owen Morrissey, President of VIC, was one of Valerie Westheimer’s sponsors for reinstituting her membership in the COMEX.

      . The motion, filed by the Westheimers, to dismiss the complaint for lack of subject matter jurisdiction was denied in the March 28, 1985 hearing. Their motion for sanctions pursuant to Fed.R.Civ.P. 11 and 28 U.S.C. § 1927 is obviously denied as moot.