author: ALSOP, Chief Judge.

text:
    Thomas E. MADER and Judy Mader, Plaintiffs, v. AMERICAN MOTORS CORPORATION and American Motor Sales Corporation, Defendants.
    No. 5-82 CIV 288.
    United States District Court, D. Minnesota, Fifth Division.
    June 21, 1985.

      Grose, Yon Holtum, Sieben & Schmidt, Ltd. by Clint Grose, Minneapolis, Minn., for plaintiffs.
    Oppenheimer, Wolff, Foster, Shepard and Donnelly by Mark S. Olson, St. Paul, Minn., for defendants.
   MEMORANDUM ORDER

ALSOP, Chief Judge.

This matter comes before the Court upon defendants’ motion for partial summary judgment pursuant to Fed.R.Civ.P. 56. Defendants seek to dismiss count two of plaintiffs’ complaint on the ground that the applicable statute of limitations bars plaintiffs’ claim for breach of warranty. In a previous memorandum order dated April 8, 198[3], this court assumed, without deciding, that the applicable statute of limitations for plaintiffs’ claims was six years.

This personal injury action arises from an automobile accident which occurred on September 17, 1976. In a memorandum order dated April 8, 198[3], this court held that the action was commenced on September 15, 1982. In count two of the complaint, plaintiffs allege a breach of express and implied warranties. Defendants contend that this claim is barred by the four-year statute of limitations of the Uniform Commercial Code. See Minn.Stat. § 336.2-725 (1984). Plaintiffs counter that their breach of warranty claim sounds in tort, not contract, and is therefore governed by Minnesota’s six-year statute of limitations for negligence. See Minn.Stat. § 541.05, subd. 1(5) (1984). Thus, a determination of the applicable statute of limitations will dispose of defendants’ motion.

The issue before the Court is what limitation period applies to a claim for the recovery of damages for personal injuries resulting from a breach of warranty. The Minnesota appellate courts have not yet addressed this issue. The state district courts which have confronted the issue are split. Compare Anderson v. Leisure Group Inc., No. 786259 (Hennepin County District Court Nov. 26, 1984) and Abbett v. City of Duluth, No. 153348 (St. Louis County District Court Oct. 25, 1984) (four-year limitation period) with Krein v. Raudabough, No. B-54060-8934 (Anoka County District Court Apr. 22, 1985) (six-year limitation period). Courts in other jurisdictions are also split on the issue. See An-not., 20 A.L.R. 4th 915 (1983).

The Minnesota Uniform Commercial Code (UCC) prescribes a four-year statute of limitations for actions alleging a breach of warranty:

(1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued____
(2) The cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warrarity occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.

Minn.Stat. § 336.2-725 (1984) (emphasis added).

The official code comment to Minn.Stat. § 336.2-725 is instructive, stating in pertinent part:

The prior limitation period for contract actions was six years. Minn.Stat. § 541.-05(1) (1961). For tort actions, it is two years. Minn.Stat. § 541.07(1) (1961). In some states the tort limitation period has been held applicable to actions for the recovery of damages for personal injuries caused by breach of warranty. [Citation omitted.] This subsection fixes the period at four years for all breaches, including breach of warranty, and so eliminates all doubt as to whether the contract or tort limitation period applies to actions for the recovery of damages for personal injuries resulting from the breach of warranty.

21A Minn.Stat.Ann. § 336.2-275, at 775 (West 1966) (emphasis added). The Minnesota code comments “are indispensable to a complete understanding of the Code.” Preface to id., at III. On their face, both the statute and the code comment unambiguously prescribe a four-year limitation period to all personal injury actions resulting from breach of warranty.

Plaintiffs argue that the four-year UCC limitation period is inapplicable in an action, such as this, alleging personal injury caused by a tortious breach of warranty. Instead, plaintiffs maintain that Minnesota’s six-year negligence limitation period is more appropriate in the instant matter. Minn.Stat. § 541.05, subd. 1 (1984) provides in pertinent part:

Except where the Uniform Commercial Code otherwise prescribes, the following actions shall be commenced within six years:
(5) ... for any other injury to the person or rights of another, not arising on contract, and not hereinafter enumerated; ...

(Emphasis added.) Plaintiffs present two arguments to support their position.

First, plaintiffs contend that the four-year UCC limitation period, Minn.Stat. § 336.2-725, is inapplicable to count two of their complaint. Plaintiffs observe that the official code comment refers to the two-year limitation period for intentional torts (Minn.Stat. § 541.07(1)) rather than the six-year limitation period for negligence (Minn. Stat. § 541.05, subd. 1(5)). On this basis, plaintiffs argue that Minn.Stat. § 336.2-725 extends the limitation period for personal injury actions alleging an intentional breach of warranty claim from two years to four years. Thus, according to plaintiffs, the UCC warranty limitation period does not reduce the six-year limitation period for bringing a negligence breach of warranty claim.

The Court finds this argument unpersuasive. Plaintiffs interpretation runs counter to the plain meaning of both the statute and the code comment. The code commentator’s reference to a tort limitation period contrasts his view of the Minnesota statute, which adopts the four-year UCC limitation period for all breach of warranty claims, to the contrary position of those states which fail to apply the UCC limitation period in personal injury actions alleging breach of warranty. The commentator’s reference to Minn.Stat. § 541.07(1), the two-year limitation period for intentional torts, rather than Minn.Stat. § 541.05, subd. 1(5), the six-year limitation period for negligence, is of no moment to either this court’s or the code commentator’s analysis.

Furthermore, the statute which plaintiffs rely upon, Minn.Stat. § 541.05, subd. 1(5), was amended by the Minnesota Legislature at the same time that the UCC was enacted, to include: “[e]xcept where the Uniform Commercial Code otherwise prescribes.” See 1965 Minn.Laws Ch. 812, § 20. Thus, under the explicit terms of Minn.Stat. § 541.05, subd. 1(5), the four-year UCC limitation period takes precedence over the six-year negligence limitation period. This statutory construction, consistent with the code comment, mandates a four-year limitation period for all personal injury actions resulting from breach of warranty.

Plaintiffs’ second contention is that Minnesota courts distinguish tortious breach of warranty claims from contractual breach of warranty claims. Under this analysis, plaintiffs maintain that only contractual breach of warranty claims are affected by the four-year limitation period of the UCC. In contrast, plaintiffs maintain that the six-year limitation period of Minn.Stat. § 541.-05, subd. 1(5) applies to a tortious breach of warranty claim.

To support this theory, plaintiffs rely on the landmark case of McCormack v. Hankscraft Co., 278 Minn. 322,154 N.W.2d 488 (1967), in which the Minnesota Supreme Court adopted the theory of strict liability in tort. In McCormack, the supreme court stated:

Defendant argues that plaintiff is barred from recovery for breach of express warranty because of failure to give notice of such breach within a “reasonable time” as required by ... the Sales Act. We cannot agree. This argument, not unlike defendant’s suggestion that the absence of privity of contract between defendant and plaintiff should likewise bar recovery, does not appeal to our sense of justice. It can be disposed of by adopting the rule of some jurisdictions that in personal injury actions alleging breach of warranty no such notice need be given because, as here, plaintiff is not a “buyer” within the contemplation of the statute. But such disposition, and similarly the elimination of privity, is only a transparent device to reach a desired result by eliminating bars to recovery imposed by the law of sales.
If traditional commercial contractual limitations, such as the requirement of notice or the doctrine of privity, were applied to this case, defendant’s liability upon the ground of breach of an express warranty could not be upheld----
Without attempting to discuss the many cases adopting the rule of strict liability and the many articles testifying to the remarkable shift towards its adoption we hold that neither notice nor privity need be alleged or proved in cases like the one before us. We do so not simply to eliminate these contractual limitations upon a claim for personal injury against a manufacturer based upon a breach of an expressed warranty (as was done long ago with respect to implied warranties) but, more importantly, to declare our agreement with the principles underlying the rule of strict tort liability and to record our intention of applying that rule in this type of case____
... Moreover, we desire to set at rest such future arguments which seek to raise various illusory contract defenses to a rule of liability which we believe should be imposed by law, in tort, as a matter of policy in cases such as this.

154 N.W.2d at 499, 500-01 (footnotes omitted). See also Farr v. Armstrong Rubber Co., 288 Minn. 83, 179 N.W.2d 64 (1970). Based upon McCormack, plaintiffs contend that a personal injury warranty claim sounds more in tort than a contract; thus, the four-year UCC limitation period should apply only to contractual breach of warranty claims, whereas the six-year negligence limitation period should apply to tortious breach of warranty claims.

The court rejects plaintiffs’ analysis for four reasons. First, plaintiffs’ tort-contract dichotomy is not supported by the law. No Minnesota case, including McCormack, stands for the proposition that warranty claims are divided into two types, contractual and tortious. Second, as was discussed above, the code comment states that the limitation period for personal injury actions resulting from breach of warranty is fixed at four years, thus eliminating the need to choose between a contract or a tort limitation period. Third, the Minnesota courts recognize that a breach of warranty claim is a distinct cause of action arising from the statutory scheme of the UCC. See O’Laughlin v. Minnesota Natural Gas Co., 253 N.W.2d 826 (Minn.1977). Thus, any distinctions between tort and contract are irrelevant. Furthermore, to the extent that the UCC provides a statutory cause of action, the four-year UCC limitation period is appropriate for this claim. Fourth, in Minnesota product liability actions, the legal theory of an action, rather than the type of injury, dictates the limitation period. For example, compare the four-year statute of limitations for strict liability claims against manufacturers, Minn.Stat. § 541.05, subd. 2 (1984), with the six-year statute of limitations for negligence claims, Minn.Stat. § 541.05, subd. 1(5) (1984). See also D. Heins, Statutory Changes in Minnesota Tort Law— 1978, 48 Hennepin Lawyer 6 (Sept.-Oct. 1978). Thus, in a products liability action, use of a four-year limitation period for a breach of warranty claim is not inconsistent with use of other limitation periods for claims based upon different legal theories.

Upon the foregoing, the court holds that a breach of warranty claim in a personal injury action is governed by the four-year UCC limitation period of Minn.Stat. § 336.-2-725. Because plaintiffs filed this action more than four years after the sale of the vehicle involved in the accident and more than four years after the accident,'plaintiffs’ breach of warranty claim is barred by the statute of limitations. Thus, the second count of plaintiffs’ complaint (breach of warranty) will be dismissed with prejudice.

Accordingly,

IT IS ORDERED That defendants’ motion for partial summary judgment be and the same hereby is granted and the second count of plaintiffs’ complaint (breach of warranty) is hereby dismissed with prejudice.


source: Caselaw Access Project

author: McMILLEN, District Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff, v. Kenneth L. THOMAS, Defendant.
    No. 84 CR 222.
    United States District Court, N.D. Illinois, E.D.
    June 24, 1985.

      Asst. U.S. Atty. Felipe Sanchez, Chicago, 111., for U.S.
    Andrew B. Spiegel, Chicago, 111., for Kenneth Thomas.
   DECISION

McMILLEN, District Judge.

Defendant, who was convicted by a jury on seven counts for failing to file income tax returns and for giving false information on W-4 withholding statements, has filed three post-trial motions. Although he has been sentenced, execution has been stayed until the pending motions have been decided.

The Speedy Trial Act Motion

The defendant’s motion to dismiss the indictment for violation of the Speedy Trial Act was filed prior to trial and renewed post-trial. Procedurally it should be decided first, because defendant’s other motions would be rendered moot if that motion is well-founded. It is not.

The difficult exercise of examining the various motions and other interruptions of the flow of time in this case, from the defendant’s first appearance on March 26, 1984 to the beginning of his trial on January 17, 1985 has been engaged in not only by my minute clerk but also by one of my law clerks. The former arrives at a total of 32 non-excludable days and the latter a total of 34 non-excludable days between these two dates. Defendant’s attorney, whose dilatory tactics caused most of the delays, asserts that 295 non-excludable days expired without tolling by the Act. The differences between these calculations are only partly attributable to the occasionally arcane nature of that statute. We will try to simplify our discussion by not reciting a detailed chronological history of this case before trial began.

Defendant’s attorney begins the running of time on March 20, 1984 when defendant was served with notice of his arraignment and ends on January 15, 1985 when his case was called for trial. He .ignores the fact that the government filed a superseding indictment on October 1, 1984, adding four new counts. Defendant pleaded not guilty to this new indictment on October 9 by which time nine days had expired on the four new counts. The Speedy Trial Act time was suspended by court order from October 9 to October 31, 1984, in the interest of justice. Defendant’s pretrial motions were filed beginning on October 6 and, with extensions of time, up until November 6. They were being briefed by defendant and then by the government until January 4, 1985 and were ruled on January 14, 1985. We believe the record will show that all of this time is excludable under United States v. Tibboel, 753 F.2d 608 (7th Cir.1985). Thereafter, only two days ran before trial, January 15 and 16, 1985. Thus defendant obviously received a speedy trial on the new counts, Four, Five, Six and Seven.

Even if the government’s delay from November 14,1984 to January 4,1985 in filing its response to the defendant’s first set of pretrial motions is not fully excludable (since no motion to exclude or order was entered covering that period), this would amount to a maximum of 52 days. However, the government had at least ten days after November 14, 1984 to prepare and file its responses under Local Criminal Rule 2.05c (United States v. Novak, 715 F.2d 810 (3rd Cir.1983)), and it would not be unreasonable to allow the government even more time because of the multiple motions and delays already requested by the defendant. Bearing in mind that when the defendant made a motion to exclude his time on November 13, 1984 he agreed that excludable time would run until the motions were decided, we find and conclude that it is reasonable to exclude as much time for the government’s response as had been allowed for the defendant’s filing of his motions. We therefore exclude 30 of the 52 days between November 14, 1984 and January 4, 1985 when the government finally filed its responses. Tibboel, supra. We believe that exclusion of more than 30 days could be unreasonable and warn the prosecutor to pay more attention to the calendar.

As to the original counts, One, Two and Three, it is necessary to add on the time that ran before the superseding indictment was filed. Defendant appeared before Magistrate Jurco for the first time on March 26, 1984. On April 9, 1984, Magistrate Sussman set the briefing schedule for filing and briefing pretrial motions. Thus 13 days ran until the pretrial motion date was reached. After that, defendant obtained extensions of time to file motions and briefs until finally, on May 14, 1984 he filed six pretrial motions.

The government, in the interest of justice, obtained extensions of time to file its answering memoranda until June 4, 1984, following which defendant obtained extensions to file replies until July 10, 1984. The magistrate issued his report and recommendations on August 1, 1984 and the court decided the objections on September 20,1984. All of these times are excludable under Tibboel, supra. Although this court held the motions under advisement for 38 days, defendant’s multiple motions keep this within a reasonable period of time under Tibboel and United States v. Latham, 754 F.2d 747 (7th Cir.1985). The additional eight days is not sufficient in the attempt to reach 70 in any event. After September 20, 1984, an additional ten days ran until the superseding indictment was filed on October 1, 1984.

The record will speak for itself and demonstrate that most of the time which elapsed after March 26, 1984 was due to the defendant’s filing and the subsequent processing of his multiple pre-trial motions. Although some of the extensions of time were at the government’s request, those delays are excludable as well as the defendant’s. cf. United States v. Bufalino, 683 F.2d 639, 646 (2d Cir.1982). Several circuits have held that all reasonable delays in pre-trial motion practice are excluded under § 3161(h)(1)(F), in most instances without prior court orders, e.g. United States v. Henderson, 746 F.2d 619 (9th Cir.1985); United States v. Novak, 715 F.2d 810 (3rd Cir.1983); United States v. Horton, 705 F.2d 1414 (5th Cir.1983); United States v. Stafford, 697 F.2d 1368, 1373 (11th Cir.1983). And the Seventh Circuit extends the 30-day limit of subsection (J) when defendant files multiple pretrial motions. Tibboel, supra.

We have already found that only two days ran after January 4. Therefore, in our opinion the maximum time which expired under the Speedy Trial Act was 13 days after arraignment, 8 days before the first set of pre-trial motions was ruled on, 10 days before the superseding indictment was filed, 22 days awaiting the government’s memoranda on defendant’s second set of motions, 8 days after the second set of motions could have been decided, and 2 days just before trial. The difference between these calculations and those referred to by our staff {supra, p. 2) is due largely to the extra time used by the government in briefing and by the court to rule on multiple motions following the superseding indictment.

The Invalidity of the Sixteenth Amendment

Defendant’s second motion is for arrest of judgment on the grounds that the Sixteenth Amendment to the Constitution was never validly ratified. This argument is based upon an alleged “fraudulant scheme” between then Secretary of State Knox and his Solicitor of the Department of State causing the Secretary to declare that the Sixteenth Amendment was ratified on February 25,1913. This fraud allegedly occurred because the Solicitor recognized that some of the ratifying legislatures did not use exactly the same wording or punctuation as had been enacted by Congress. The Solicitor nevertheless recommended in a letter to the Secretary of State that he issue his Proclamation of Ratification despite these “errors,” and he did so.

The issuance of the proclamation was an exercise of the executive powers of the Secretary of State, and the Solicitor’s letter disclosing the facts can in no way be considered collusion, a fraud, or a conspiracy. Much more evidence than the defendant has presented would be required to prove any of those conclusions, and of course the time for examining the surrounding circumstances and state of mind of the parties has long gone by. The Secretary exercised his authority in good faith, on advice of counsel, and the legislatures’ errors were of no substance. Therefore, if we were to rule on this question, it would be adverse to the defendant.

However, it has long been the law of the land that the courts will not intrude into a political question such as the validity of amendments to the Constitution. In Leser v. Garnett, 258 U.S. 130, 42 S.Ct. 217, 66 L.Ed. 505 (1922), Justice Brandéis, writing for a unanimous court, held that the validity of the ratification of the Nineteenth Amendment was not a justiciable issue because the certification by the various States followed by the proclamation of the Secretary of State under 5 U.S.C. § 160 was “conclusive upon the courts.” 258 U.S. at 137, 42 S.Ct. at 218. In Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939), involving the ratification of a Child Labor Amendment, the State of Kansas at first rejected the proposed amendment and later ratified it. The court held that it would not review an official notice of ratification to the Secretary of State, although the justices differed in their reasons. All but two acknowledged the continued vitality of Leser v. Garnett, supra.

All of the courts which have recently considered the argument raised by defendant in his motion in arrest have ruled that the validity of the Sixteenth Amendment cannot be contested under the facts alleged by defendant, e.g. United States v. Alvin Wojtas, 85 CR 45 (N.D.Ill., May 22, 1985); United States v. Wayne Wojtas, 611 F.Supp. 118 (N.D.Ill.1985); United States v. Ferguson, 615 F.Supp. 8 (S.D.Ind.1985). Nevertheless, we have ruled on it, alternatively, because of the tendency of the Supreme Court to become involved in “political” questions since 1939.

The Motion For Acquittal

Finally, defendant has filed a motion for judgment of acquittal based upon the evidence. He contends that he did not act willfully or knowingly in violating 26 U.S.C. §§ 7203 and 7205. Although defendant attempted to testify to this effect, his own acts and testimony were sufficient to permit a reasonable jury to find against him on this issue. He filed tax returns prior to the tax year 1979. He stated that he subsequently disagreed with the tax laws of the Federal government and with the way in which his tax payments would be spent. He received various notices from the I.R.S. notifying him of his obligation to file, and he also had received a letter from Congressman Philip Crane to the effect that Congress was not inclined to “strike down current IRS laws that consider wages as taxable income.” Finally, he testified that he attended at least one tax protester trial in December 1981 and heard the instructions of law given to the jury, yet failed to file tax returns for tax years 1981, 1982 and 1983..

Thus the evidence in this case, taken in the light most favorable to the government, is clearly sufficient to support the verdicts. It is at least equal to the evidence on which the Court of Appeals affirmed similar verdicts in United States v. Green, 757 F.2d 116 (7th Cir.1985) and United States v. Latham, 754 F.2d 747 (7th Cir.1985).

Defendant’s post-trial motions are therefore denied. A Rule 58 judgment will be entered.


author: TERENCE T. EVANS, District Judge.

text:
    Ralph REMUS, individually and on behalf of a class of persons similarly situated, Plaintiff, v. AMOCO OIL COMPANY, Defendant.
    Civ. A. No. 83-C-204.
    United States District Court, E.D. Wisconsin.
    June 24, 1985.
    James S. Grodin, Grodin & Grodin, and George Kersten, Kersten & McKinnon, Milwaukee, Wis., for plaintiff.
    Stuart Parsons, Quarles & Brady, Milwaukee, Wis., Richard C. Godfrey, Frank Cicero, Kirkland & Ellis, Chicago, 111., for defendant.
   DECISION and ORDER

TERENCE T. EVANS, District Judge.

This case concerns Amoco Oil Company’s “discount for cash” (DFC) marketing program, which it introduced in Wisconsin in 1982. The plaintiff, Ralph Remus, is an Amoco dealer in LaCrosse, Wisconsin. Remus, and the class of similarly situated Amoco dealers throughout Wisconsin which he seeks to represent, challenges the aspect of Amoco’s DFC program which calls for the collection of a credit card fee from the dealers. Remus has alleged that Amoco’s initiation of the DFC program violates the Wisconsin Fair Dealership Law, Ch. 135, Wis.Stats., and the credit card contract between the parties. Remus has further alleged that Amoco misrepresented the nature and profitability of DFC. The case is before me on Amoco’s motion for summary judgment.

Ralph Remus first became an Amoco service station dealer in 1968. In 1977, Remus incorporated his station as Ralph’s Standard, Inc. The basic documents creating the dealership relationship are the lease and supply contracts, but many dealers— including Remus — also enter into other contracts with Amoco covering such things as equipment and credit card acceptance.

Prior to the inception of the “discount for cash” program, Amoco customers paid the same price for their gas whether they paid cash or paid with their Amoco credit card. The costs of administering the Amoco credit card system were built into the price of the gas across the board. DFC was designed to eliminate the subsidization of the credit card system by cash customers who did not use it. Amoco hoped DFC would attract more cash customers, a growing segment of the gasoline market.

Under DFC, dealers who accepted credit cards would be charged a fee — initially 4%, later reduced to 3% — on the credit card receivables Amoco purchased from them. To offset the fee, dealers would receive a discount off the regular dealer gasoline buying price for all gas, whether resold on a cash or credit basis. (The discount was initially 2.8%, later reduced to 2.1%.) Dealers would then in turn offer their cash-paying customers a discount. In this way, the cost of the Amoco credit card system was separated out from the cost of the gasoline.

Remus’ deposition testimony indicates that he first learned about DFC in April of 1982 from his Amoco territory and field sales managers. At that time, DFC had been in place in the Milwaukee area as a test market and Amoco expected to expand it to the rest of Wisconsin during the summer. Remus testified at his deposition that he was interested in DFC at that time, and on May 20, 1982, at an Amoco trade show in Milwaukee, Remus told the district manager that he wanted to participate in the program. At the trade show Remus discussed the risks and benefits of DFC with dealers who had been using it. He received mixed reports, depending on the location and clientele nature of the dealership.

On June 8,1982, Remus attended a meeting among Amoco representatives and other state Amoco dealers about DFC and other marketing programs. On July 8, 1982, Remus attended another meeting to arrange for the introduction of DFC in the LaCrosse area. Remus agreed to participate and, on July 20, started the program.

Remus states that DFC has alienated his credit card customers, causing a gradual loss of business. The program did not, as he had expected it to, result in a substantial narrowing of the gap between his wholesale cost for gas and that of “the independents” — competitors not affiliated with any specific brand. He and other Wisconsin Amoco dealers organized a protest against DFC, the tactics of which included withholding the credit card fee. In response Amoco threatened to cancel the dealers’ credit card contracts. Remus dropped his protest in favor of filing this lawsuit.

The WFDL Claim

The Wisconsin Fair Dealership Law provides:

Section 135.03. Cancellation and Alteration of Dealerships.
No grantor, directly or through any officer, agent or employee, may terminate,, cancel, fail to renew or substantially change the competitive circumstances of a dealership agreement without good cause. The burden of proving good cause is on the grantor.
Section 135. Of Notice of Termination or Change in Dealership.
Except as provided in this section, a grantor shall provide a dealer at least 90 days’ prior written notice of termination, cancellation, non-renewal or substantial change in competitive circumstances. The notice shall state all the reasons for termination, cancellation, non-renewal or substantial change in competitive circumstances and shall provide that the dealer has 60 days in which to rectify any claimed deficiency____

Amoco argues that the WFDL does not apply here for the following reasons: DFC affects only the credit card contract and that contract is not a “dealership agreement” within the meaning of the WFDL; DFC does not constitute “a change in competitive circumstances”; if DFC is “a change in competitive circumstances” then it is not a “substantial change” within the meaning of the WFDL; and, the WFDL does not apply because Remus agreed to participate in DFC.

The first three of these arguments are overly technical, and I decline to accept them. Viewed reasonably, the introduction of DFC has, without a doubt, substantially changed the competitive circumstances of Remus’ dealership. Furthermore, as Amoco concedes, the WFDL regulates the relationship between a grantor and a dealer with respect to the dealership. To exclude Remus from its coverage merely because his relationship with Amoco is embodied in several separate documents would be contrary to the spirit of the law.

However, the argument about the voluntariness of Remus’ participation in DFC is persuasive. Remus admits that he agreed to “try” the program, but says he never specifically agreed to the credit card fee. However, Remus acknowledges being fully aware of the fee aspect of DFC at the time he consented to it. Remus cannot accept the part of the program he likes — the discount — and reject the part he doesn’t like. At any rate, Remus has continued to participate in the program; DFC has apparently become a permanent part of Amoco’s credit card system.

That fact brings me to the reason why I believe the WFDL is not applicable here. The language of § 135.03 restricts a grant- or from unilaterally terminating or changing the competitive circumstances of a dealership without “good cause.” Section 135.-04 requires the grantor to give the dealer notice of the changes or termination; the notice must include a statement of the reasons for the action and give the dealer a sixty-day period to cure the deficiency that prompted the grantor’s action. The definition of the “good cause” necessary under the statute is:

135.02(4) “Good cause” means:
(a) failure by a dealer to comply substantially with essential and reasonable requirements imposed upon him by the grantor, or sought to be imposed by the grantor, which requirements are not discriminatory as compared with requirements imposed on other similarly situated dealers either by their terms or in the manner of their enforcement; or
(b) bad faith by the dealer in carrying out the terms of the dealership.

The language of the WFDL assumes a grantor decision based on some sort of dealer shortcoming. The statute does not address a grantor decision based on business reasons unrelated to the dealer — such as a decision to change the way a credit card program is operated systemwide. This raises a troubling question: Are grantors prohibited from occasionally changing the way they do business because the WFDL defines “good cause” only with respect to the behavior of the dealers?

I believe the answer to that question is no. Common sense suggests that when a company has determined that an aspect of its business should be changed in order to stay competitive, it has good cause to make the change provided that it does so in a non-discriminatory manner. If business exigencies totally unrelated to the dealer require a change in policy, and the company implements the change among all its dealerships, the protections of the WFDL are unnecessary. The underlying purposes of the WFDL are, among other things:

Section 135.025(2)(a). To promote the compelling interest of the public in fair business relations between dealers and grantors, and in the continuation of dealerships on a fair basis ...

It would hardly be fair, and I don’t believe the Wisconsin legislature intended, to so circumscribe a grantor's business judgment that the grantor risks WFDL liability even when it makes a non-discriminatory change in policy based on factors unrelated to the dealer.

During the pendency of this motion the Court of Appeals for the Seventh Circuit issued its decision in Kealey Pharmacy & Home Care Services, Inc. v. Walgreen Co., 761 F.2d 345 (7th Cir.1985), affirming Judge Barbara Crabb’s holding that a grantor’s decision to terminate all of its dealerships nationwide in favor of company-owned stores violated the WFDL. In that case, Walgreen’s decided to eliminate all its independently-owned dealerships because they were, in Walgreen’s view, not making enough money.

Just after Judge Crabb’s decision in Kealey, I issued an opinion in St. Joseph Equipment v. Massey-Ferguson, Inc., 546 F.Supp. 1245 (W.D.Wis.1982), holding that Massey-Ferguson’s complete withdrawal from the North American construction machinery market did not violate the WFDL. In that decision, I noted a distinction between that case and Kealey, on which the Seventh Circuit commented:

The good cause definition in Section 135.-02 ... does not permit blanket terminations of dealerships such as those affected by Walgreen’s. Under Section 135.03, “the burden of proving good cause is on the grantor” with respect to the termination of every dealership. Even though defendant relies upon St. Joseph Equipment v. Massey-Ferguson, Inc., 546 F.Supp. 1245 (W.D.Wis.1982), as being contrary to plaintiffs, the author of that opinion stated that he agreed with the district court’s result in the present case based on its facts (at page 1248). Since Walgreen intends to maintain and increase its own stores in the same marketing area in competition with plaintiffs who helped to build up the Walgreen reputation and image there, it was not unfair for the Wisconsin legislature to prohibit a manufacturer and supplier such as defendant from terminating all its dealers because they produced an inadequate rate of return.

Kealey Pharmacy & Home Care Services, Inc. v. Walgreen Co., 761 F.2d 345, 350 (7th Cir.1985).

Applying the Kealey analysis to this case produces a result which, I believe, could not have been intended by the legislature. It makes sense that a grantor should not be off the hook simply because its action was even-handed. As Judge Crabb observed, this would permit a grantor to do anything as long as it was done to everyone. Kealey Pharmacy & Home Care Service, Inc. v. Walgreen Co., 539 F.Supp. 1357, 1365 (W.D.Wis.1982). But I believe the analysis in this case must go a step further. The reason for the grantor’s decision must be examined. Where the grant- or’s action is due to business exigencies unrelated to the dealer — such as a withdrawal from the marketplace, as in Massey-Ferguson, or a change in credit card policy, as in this case — I believe the WFDL’s prohibitions are inapplicable. Thus, this case is distinguished from cases such as Kealey, in which the grantor action stems from some dealer inadequacy. Accordingly, the plaintiff’s claim under the WFDL will be dismissed.

Remaining Claims

Remus has also asserted a breach of contract claim based on Amoco’s collection of a credit card fee. The credit card contract between the parties is silent on the subject of a credit card fee. Remus contends that because of the credit card fee Amoco is no longer buying the credit card slips from him “dollar for dollar”. Remus argues that the contract presumes (although it doesn’t state directly) that the credit card slips will be purchased at their face value; therefore, when the company charges the 3% fee, it effectively reduces the value of the credit card slips to 97 cents on the dollar.

This argument assumes that the credit card fee must be paid in credit card slips. Amoco points out that the fee can be paid in cash or credit card assignments. At any rate, Remus agreed to participate in DFC, a component of which, as he acknowledges he knew well in advance, is the credit card fee. While I make no finding on the correctness of Remus’ interpretation of the contract, I find that the credit card agreement has been altered by mutual consent.

Finally, Remus contends that Amoco misrepresented the risks and benefits of the DFC program. Remus’ own deposition testimony contradicts this claim. He testified that Amoco representatives had warned him that dealers may lose credit card sales and that, in fact, DFC may hurt dealerships having 50% or more of total sales on credit cards. Remus also testified that Amoco representatives told him the company could not guarantee higher profits or a lower “spread” — the difference between Remus’ wholesale cost and that of the “independents”. Remus testified that Amoco representatives simply presented the results of the Milwaukee test market and expressed their optimism about the prospects for the rest of the state. Remus has not pointed to any concrete false representation made by Amoco in the course of the introduction of the DFC program. This appears to be a case of disappointed expectations, rather than fraudulent misrepresentation.

For the foregoing reasons, the defendant’s motion for summary judgment is GRANTED and this case DISMISSED.


author: GARRITY, District Judge.

text:
    DATASCOPE CORP., Plaintiff, v. KONTRON, INCORPORATED, Defendant.
    Civ. A. No. 83-3704-G.
    United States District Court, D. Massachusetts.
    June 24, 1985.

      Thomas Y. Urmy, Jr., Warner & Stack-pole, Boston, Mass., for plaintiff.
    Michael T. Cetrone, Daniel Gleason, Nutter, McClennen & Fish, Boston, Mass.; Theresa M. Gillis, Michele Gapinski, Dewey, Ballantine, Bushby, Palmer & Wood, New York City; Peter B. Ellis, Foley, Hoag & Eliot, Boston, Mass., and John C. Vassil, Patricia S. Rocha, Morgan, Finnegan, Pine, Foley & Lee, New York City, for defendant.
   MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION

GARRITY, District Judge.

On November 15,1984, plaintiff filed this action alleging infringement of U.S. Letters Patent No. 4,261,339 (“the ‘339 patent”) by defendant and a motion for preliminary injunction seeking to enjoin defendant pendente lite from manufacturing and selling its allegedly infringing devices. After hearing oral argument and reviewing the extensive briefs, affidavits and exhibits submitted by the parties, the court grants plaintiff’s motion for preliminary injunction in part and denies it in part. Pursuant to F.R.Civ.P. 52(a), the following represents the court’s findings of fact and conclusions of law.

I. Statement of Facts

On April 14, 1981, the ‘339 patent was issued to plaintiff as assignee for the invention of an intra-aortic inflatable balloon catheter (“IAB”) capable of percutaneous insertion, i.e., by puncturing the femoral artery with a needle through the skin instead of by surgery. Shortly thereafter, plaintiff brought an action in the United States District Court for the District of New Jersey, Chief Judge Fisher presiding, charging SMEC, Inc. (“SMEC”) with patent infringement. Datascope v. SMEC, Inc., (1984) 594 F.Supp. 1306. After two years of discovery and a thirteen-day trial, the court found the ‘339 patent valid and infringed by SMEC’s IAB, filing a comprehensive opinion dated September 24, 1984. Because Chief Judge Fisher’s opinion so thoroughly discussed the background and development of IABs, the ’339 patent, and the SMEC IAB, for purposes of the instant motion we adopt his findings of fact with respect to those issues.

Briefly summarizing the findings of Judge Fisher, the primary significance of the IAB claimed in the ’339 patent lies in its ability to be inserted pereutaneously, rather than surgically. Percutaneous insertion was made possible by essentially three components of the invention: the end of the catheter tube that extended into the inside of the balloon chamber of the IAB was replaced by a wire support member; the support member could be rotated at one end of the balloon chamber but not at the other end of the chamber so that the balloon could be wrapped around the support member; and a device was added to the distal end of the catheter tube to prevent the support member from telescoping into the catheter tube and to insure that the IAB could be pushed through the arterial system. By wrapping the balloon around the support member, the cross-sectional diameter of the balloon chamber is reduced significantly, permitting the catheter, with the balloon wrapped about the support member, to be inserted into the arterial system pereutaneously, eliminating the trauma and risks of surgery and increasing the speed of insertion, among other benefits.

Defendant manufactures and sells two types of percutaneous IABs. One of defendant’s devices is called a single lumen IAB, which, as conceded by defendant, is virtually identical to the SMEC device found by Judge Fisher to infringe the ‘339 patent. This IAB differs from that described by the ‘339 patent in that the support member extends beyond the balloon chamber through the full length of the catheter tube and into a wrap handle, which is used to wrap the balloon about the support member. Defendant’s other device is known as a dual lumen IAB. In this IAB, the support member is replaced by a narrow hollow tube which is open at the distal end of the balloon chamber. In patients with tortuous arterial systems or atherosclerosis, a guidewire can be passed through the arterial system into the aorta. A dual lumen IAB is then threaded over the guidewire into the aorta with greater ease. Defendant’s dual lumen IAB also includes the wrap handle described above.

Plaintiff alleges that both of defendant’s IABs infringe the ‘339 patent. Therefore, it seeks to enjoin defendant from manufacturing and selling these devices.

II. The Standard for a Preliminary Injunction

The court must consider four factors in determining whether or not to grant a preliminary injunction in a patent infringement case:

(1) whether the plaintiff will have an adequate remedy at law or will be irreparably harmed if the injunction does not issue;

(2) whether the threatened injury to the plaintiff outweighs the threatened harm the injunction may inflict on the defendant;

(3) whether the plaintiff has at least a reasonable likelihood of success on the merits; and

(4) whether the granting of a preliminary injunction will disserve the public interest.

Roper Corporation v. Litton Systems, Inc., Fed.Cir.1985, 757 F.2d 1266, 1268. However, irreparable harm will be presumed in a patent case where validity and infringement have been clearly established. Id. at 1271; Smith International v. Hughes Tool Company, Fed.Cir.1983, 718 F.2d 1573, 1581. The purpose of this exception is to protect the right to exclude which has been granted to the patent owner. Roper Corporation, supra, at 1275, n. 5. A prior adjudication of validity and infringement may constitute a sufficient “clear showing” to give rise to a presumption of irreparable injury. Id. at 1578; Carter-Wallace, Inc. v. Davis-Edwards Pharmacal Corp., 2 Cir.1971, 443 F.2d 867, 873 (“The theory of the prior adjudication exception is ... that a determination of validity after a full trial adds enough to what is now the statutory presumption, 35 U.S.C. § 282, to justify dispensation from the rule that a preliminary injunction will not be granted ‘except when the patent is beyond question valid.’- ”). However, in order for the presumption of irreparable harm to attach, the defendant’s objections to validity and infringement must have been raised and rejected in the prior adjudication. Id.

There has been a prior judicial determination that the ‘339 patent is valid and infringed by the SMEC IAB. However, defendant has raised various issues with respect to validity and infringement which it claims were not addressed in the New Jersey case. Therefore, plaintiff will be entitled to a presumption of immediate, irreparable harm only if we find that these issues were considered by Chief Judge Fisher or would not have affected his findings of validity and infringement.

III. Validity

Defendant first asserts that the IAB claimed in the ‘339 patent is obvious and, therefore, invalid under 35 U.S.C. § 103, based upon the teachings of plaintiff’s pri- or art IAB and U.S. Letters Patent No. 3,939,820 (“the Grayzel patent”).

Judge Fisher addressed the issue of obviousness with respect to the Grayzel patent in his September 24, 1984 decision. That patent teaches that the size of IABs can be reduced by replacing the catheter tube within the balloon with a wire and then wrapping the balloon around the wire. He found that the Grayzel patent does not render the ‘339 patent obvious because it does not claim a rotatable support member which allows one end of the balloon to twist relative to the other.

According to defendant, the New Jersey court did not consider plaintiff’s prior art surgical IAB together with the Grayzel patent. In plaintiff’s prior art IAB, the catheter tube extended through the entire balloon chamber. Inside the catheter tube was a wire stylet, which was fixed at the distal end of the balloon and extended through the balloon chamber, terminating about an inch and a half beyond the proximal end of the balloon chamber. The proximal end of the stylet was unfixed in the catheter tube. The primary purpose of the stylet was to enable the catheter to be permanently bent near the balloon tip to allow the IAB to be guided around obstructions or curves in the arteries. Another purpose of the stylet was to provide the IAB with additional support.

We find that plaintiff’s prior art surgical IAB, even when considered together with the Grayzel patent, does not render obvious the claims of the ‘339 patent. As stated by Chief Judge Fisher, the significant feature of the ‘339 patent is the rotatable nature of the support member. The stylet from plaintiff’s prior art was not used for such a purpose. Nor was the stylet inherently rotatable, even though it was fixed at one end and unfixed at the other end of the balloon chamber, as it was always surrounded by the catheter tube. Therefore, this situation is distinguishable from that in Application of Wiseman, C.C.P.A.1979, 596 F.2d 1019, where a device was held to be unpatentable which possessed an inherent function which was previously unknown. Even if plaintiff had removed the catheter tube from the balloon chamber of its prior art as described in the Grayzel patent, the IAB would have needed significant alterations before it would have resembled the IAB claimed in the ‘339 patent. Therefore, we find for the purposes of plaintiffs motion for preliminary injunction that the claims of the ‘339 patent were not obvious.

Defendant also claims that the ‘339 patent is unenforceable due to inequitable conduct because plaintiff withheld material information, namely its prior art surgical IAB, from the Patent and Trademark Office. Defendant must prove this fraud by clear and convincing evidence. Kimberly-Clark Corporation v. Johnson & Johnson, Fed.Cir.1984, 745 F.2d 1437, 1454. In light of our findings ante with respect to the stylet used in plaintiffs prior art, and its minor relevance to the development of the ‘339 patent, we conclude that defendant is not likely to show by clear and convincing evidence that plaintiff was guilty of any inequitable conduct in the prosecution of its patent.

Finally, defendant argues that the ‘339 patent is invalid under 35 U.S.C. § 112, which requires the following:

The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.

The purpose of § 112 is to provide the public with a quid pro quo; the inventor receives a limited monopoly over the invention and the public receives full disclosure of the invention in return. 2 Chisum, Patents § 7.01 (1985). According to defendant, the specifications of the ‘339 patent fail to teach adequately how to use the invention and fail to describe the best mode.

The ‘339 patent teaches that the balloon should be “tightly twisted” around the support member into a small cross-sectional diameter. However, overwrapping of the balloon could prevent the device from unwrapping properly in the aorta. Plaintiff has conducted extensive experiments with its commercial devices to determine the specific number of turns required in order to avoid overwrapping problems and has included in its instructions to users of its commercial devices specific instructions on the number of turns required, ranging from six to thirteen. The specification of the ‘339 patent also states that the support member “is preferably made of a material which may be formed during use into a desired axial configuration by bending.” However, plaintiff knew prior to the filing of the ‘339 patent application that bending of the support member more than approximately 15 to 20 degrees would impede the unwrapping of the balloon. Moreover, the instructions on plaintiffs commercial IABs state that the support member must not be bent.

We find that plaintiff did not fail to teach how to use the patented device. The enablement requirement of § 112 is met “by disclosures that are reasonably clear to one skilled in the art, even though some experimentation may be necessary.” Phillip v. Mayer, Rothkopf Industries, Inc., 2 Cir. 1980, 635 F.2d 1056, 1063 [citations omitted]. The specifications in the ‘339 patent which state that the balloon should be tightly twisted about the support wire adequately describe the invention, which requires that the balloon be wrapped tightly so that the balloon chamber is reduced to a diameter equal to or smaller than that of the catheter tube. The exact number of turns required and the amount of twisting that will result in overwrapping may vary with each commercial embodiment of the ‘339 patent and, therefore, may necessitate some experimentation by the makers and users of these devices. However, plaintiffs failure to be more specific does not warrant a finding that the patent is not enabling.

Furthermore, plaintiffs references to bending in the ‘339 patent specification do not warrant a finding that the patent is invalid. The support member could be bent approximately 15 to 20 degrees without interfering with unwrapping. That plaintiff thereafter chose to instruct the users of its commercial IABs not to bend the support member does not prove that the specification should not have made a reference to bending.

We also find that plaintiff did not fail to set forth the best mode for carrying out the invention. In order for a patent to be invalidated for failure to disclose the best mode, the evidence “must tend to show that the quality of an applicant’s best mode disclosure is so poor as to effectively result in concealment.” Matter of Application of Sherwood, C.C.P.A.1980, 613 F.2d 809, 819. “Enumeration of possible problems, while desirable, is not absolutely essential unless such a nondisclosure strikes at the truthfulness of the presumption that the ‘mode’ described is indeed the ‘best’ contemplated.” Weil v. Fritz, C.C.P.A.1979, 601 F.2d 551, 556. We find no such effective concealment here, either accidental or intentional, in plaintiff’s failure to enumerate the problems discussed above which plaintiff began to detect shortly before it filed its application for the ‘339 patent. Therefore, we find that the ‘339 patent is not invalid under § 112.

IV. Infringement

Plaintiff claims that both types of percutaneous IABs manufactured by defendant infringe the ‘339 patent. As stated above, defendant’s single lumen IAB with the wrap handle is virtually identical to the SMEC device. Chief Judge Fisher found that the SMEC device did not literally infringe the ‘339 patent. However, he found infringement under the doctrine of equivalents, which allows the patentee to charge with infringement the producer of a device that performs substantially the same function in substantially the same way to obtain the same result as that called for by the patent. Graver Tank & Mfg Co., Inc. v. Linde Air Products Co., 1950, 339 U.S. 605, 608, 70 S.Ct. 854, 856, 94 L.Ed. 1097. We concur in his findings and therefore find that defendant’s single lumen device is infringing the ‘339 patent. Because validity and infringement of the ‘339 patent by defendant’s single lumen IAB have been clearly established by a prior adjudication, we will presume irreparable harm to plaintiff, Smith International, supra, and grant plaintiff’s motion for a preliminary injunction with respect to this device.

There has been no such prior adjudication of the question of infringement by defendant’s dual lumen IAB. Nonetheless, we find that plaintiff has shown a reasonable likelihood of prevailing on the merits on this issue. The essential element of the ‘339 patent, a rotatable support member about which the balloon chamber of the IAB can be wrapped, is found in defendant’s dual lumen IAB. Defendant has improved substantially upon the invention by replacing the support member with a hollow tube, thereby enabling the IAB to be threaded over a guidewire into the arterial system. However, an improvement over a patented device does not avoid infringement. Lockheed Aircraft Corp. v. United States, Ct.Cl.1977, 553 F.2d 69, 83.

On the other hand, plaintiff has not made such a clear showing of infringement that it is entitled to a presumption of irreparable harm. Therefore, the court must balance the harm to each of the parties that a preliminary injunction could cause.

V. Balance of Hardship

Defendant has made a strong showing that it will be irreparably harmed by a preliminary injunction. For example, it will suffer losses in sales, it will be forced to lay off employees, its good will will be injured, and it will have to write off inventory and capital improvements. Defendant has also made some showing that the public will be harmed by an injunction in that some physicians prefer defendant’s dual lumen IABs.

Plaintiff has not demonstrated that it will be harmed comparably by the denial of an injunction. There is no indication that defendant would not be able to compensate plaintiff if plaintiff ultimately prevails on the merits. Therefore, plaintiff’s motion for a preliminary injunction is denied with respect to defendant’s dual lumen IAB.

VI. Summary and Order

Plaintiff’s motion for a preliminary injunction is granted in part and denied in part. The motion is granted with respect to defendant’s single lumen IAB, but denied with respect to defendant’s dual lumen IAB. The parties are ordered to file affidavits on or before July 1, 1985 on the question of the appropriate security to be given by plaintiff.

      . SMEC has appealed that decision to the United States Court of Appeals for the Federal Circuit. On December 17, 1984, Chief Judge Fisher granted plaintiffs motion for a preliminary injunction and enjoined SMEC from manufacturing and selling IABs which infringe the '339 patent.

      . Pp. 2-11 of the September 24, 1984 opinion.

      . This device is also referred to as a central lumen or a double lumen IAB.

      . SMEC has been granted a patent for its percutaneous IAB with a wrap handle, U.S. Letters Patent No. 4,422,447. Defendant has been granted a patent for its dual lumen percutaneous IAB with a wrap handle, U.S. Letters Patent No. 4,362,150, which it claims in its second counterclaim is being infringed by plaintiff. The Patent Office has instituted interference proceedings with respect to the SMEC and Kontron, Inc. patents, Declaration of Interference No. 101,195.

      . During the SMEC case, plaintiffs prior art surgical IAB was received in evidence as Exhibit P-6 and a drawing of a similar device was received in evidence as Exhibit CC. However, defendant argues that Judge Fisher did not consider its relevance to the question of obviousness.

      . We are also mindful of the wide commercial success of the percutaneous IAB and, in particular, plaintiffs commercial embodiment of the '339 patent. That an invention has enjoyed commercial success and filled a demonstrated need is relevant to the question of obviousness. International Telephone and Telegraph Corp. v. Raychem Corp., 1 Cir. 1976, 538 F.2d 453, 459.

      . Moreover, according to one of the inventors of the patented device, Sidney Wolvek, a maker or user of the patented device could determine the maximum degree of bend by simple arithmetic.

      . We note also that plaintiff did not bring the instant action until three and a half years after it first learned of defendant’s percutaneous IABs.


author: WARRINER, District Judge.

text:
    Walter James HUBBARD v. Donna Lee TRIPP.
    Civ. A. No. 85-0323-R.
    United States District Court, E.D. Virginia, Richmond Division.
    June 24, 1985.
    Boyd F. Collier, Allen, Allen, Allen & Allen, Richmond, Va., for plaintiff.
    Christopher C. Spencer, McGuire, Woods & Battle, Richmond, Va., for defendant.
   OPINION

WARRINER, District Judge.

This action was initially commenced in the Circuit Court of the City of Richmond, Virginia, on 7 March 1985. It was removed to this Court on 26 March 1985 upon petition of defendant. Defendant asserts that removal jurisdiction is proper in this Court in that there is diversity of citizenship as required in 28 U.S.C. § 1332.

The applicable removal statute is 28 U.S.C. § 1441 which provides in pertinent part:

Except as otherwise expressly provided by an Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

28 U.S.C. § 1441(a).

When a petition for removal from a State court is brought in a diversity case § 1441(b) requires that “such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the state in which such action is brought.”

28 U.S.C. § 1446 prescribes the procedures to be followed for removal. It provides in pertinent part:

(a) A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in a district court of the United States for the district and division within which such action is pending a verified petition containing a short and plain statement of the facts which entitle him or them to removal together with a copy of all process, pleadings and orders served upon him or them in such action.
(b) The petition for removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleadings setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant such initial pleading has then been filed in court and is not required to be served on a defendant whichever period is later.

28 U.S.C. § 1447(c) mandates that:

If at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case and may order the payment of just costs____

The sworn petition for removal avers that defendant was a citizen of New York and plaintiff was a citizen of Virginia at the time of removal. Neither the complaint filed in State court nor the petition filed in this Court specifies the citizenship of either defendant or plaintiff as of the time of filing of the complaint (motion for judgment) in the State court.

The failure to specify defendant’s and plaintiff’s citizenship at the time of filing the complaint is, I think, fatal. “[Tjhere is a long line of authorities supporting the proposition that when diversity of citizenship is a basis of removal jurisdiction, it must exist both at the time the original action is filed in the state court and at the time removal is sought.” 14A Wright, Miller & Cooper, Federal Practice and Procedure, Jurisdiction 2d § 3723 (1985). See New England Explosives Corp. v. Maine Ledge Blasting Specialist, Inc., 542 F.Supp. 1343, 1347 (D.Me.1982); Carlton Properties, Inc. v. Crescent City Leasing Corp., 212 F.Supp. 370, 371-72 (E.D.Pa.1962) (citing Jackson v. Allen, 132 U.S. 27, 34,10 S.Ct. 9, 33 L.Ed. 249 (1889)); Lancer Industries, Inc. v. American Insurance Co., 197 F.Supp. 894, 896 (W.D.La.1961).

The thirty-day period to file the petition for removal has expired and therefore defendant may not now supply the missing allegation. “After expiration of the 30-day removal period, a party should be permitted to amend a petition to cure defective allegations of jurisdiction pursuant to 28 U.S.C. § 1653, but not to supply missing allegations.” Richmond, Fredericksburg & Potomac Railroad Co. v. Intermodal Services, Inc., 508 F.Supp. 804, 807 (E.D.Va.1981) (citing Van Horn v. Western Electric Co., 424 F.Supp. 920, 924 (E.D.Mich.1977). The essential allegation here was missing; it was not merely “defective.” Garza v. Midland National Ins. Co., 256 F.Supp. 12, 14 (S.D.Fla.1966).

“Removal statutes are strictly construed” Thompson v. Gillen, 491 F.Supp. 24, 26 (E.D.Va.1980) (citations omitted). Because defendant is required to state the facts which entitles her to removal, because one of those facts is that at the time of filing the complaint in State court the controversy was between citizens of different States, because defendant failed in her removal petition or otherwise to allege her or plaintiff’s citizenship as of the time of filing the complaint in State court within the thirty-day period to file a removal petition, this action must be remanded to the State court pursuant to 28 U.S.C. § 1447. An appropriate judgment SHALL issue.

And it is so ORDERED.


author: GENE CARTER, District Judge.

text:
    Jon DESROSIERS, et al., Plaintiffs, v. ANDROSCOGGIN COUNTY, et al., Defendants.
    Civ. No. 85-0091-P.
    United States District Court, D. Maine.
    June 24, 1985.
    Andrew Choate, Lewiston, Maine, and Mark Soler, Carole Shauffer, San Francisco, Cal., for plaintiffs.
    Robert S. Frank, Asst. Atty. Gen., Augusta, Maine, and Martin I. Eisenstein, Brann & Isaacson, Lewiston, Maine, for defendants.
   MEMORANDUM AND ORDER GRANTING DEFENDANT JUDGES’ MOTION TO DISMISS

GENE CARTER, District Judge.

In this action Plaintiff challenges the incarceration of juveniles under allegedly unconstitutional conditions at the Androscoggin County Jail, the incarceration of juveniles in a secure facility where they come into contact with adults, and the secure detention of status offenders. Plaintiff also challenges Defendants’ alleged failure to provide and utilize appropriate community-based alternatives to placement of juveniles in the Androscoggin County Jail. Defendants are Androscoggin County, its Commissioners and Sheriff, and three Maine District Court judges, who have the authority, under Maine law, to order incarceration of juveniles at the Androscoggin County Jail.

Plaintiff sues the Defendant judges in their official capacities only, seeking declaratory and injunctive relief prohibiting Defendants from confining Plaintiff in the Androscoggin County Jail. In the alternative, Plaintiff seeks injunctions sufficient to rectify the allegedly unconstitutional and otherwise illegal acts and omissions. The Defendant judges have moved to dismiss on the grounds that, as neutral adjudicators, they have no real stake in the litigation and that relief can be afforded to Plaintiffs without their presence in the lawsuit. The Court agrees with Defendants’ analysis and will dismiss the complaint as against them.

Judges acting in their official capacities are not immune from suits for prospective injunctive relief. Pulliam v. Allen, 466 U.S. 522, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984). As Defendants point out, however, several courts, including the Court of Appeals for the First Circuit, have discussed circumstances in which the maintenance of such suits against judges is inappropriate. Indeed, the Eighth Circuit Court of Appeals has stated that “[i]n In re Justices of the Supreme Court of Puerto Rico, 695 F.2d 17 (1st Cir.1982), Judge Breyer cogently demonstrated that in most section 1983 cases, federal courts should refuse to grant relief against state judges.” R.W.T. v. Dalton, 712 F.2d 1225, 1232 (8th Cir.1983). In In re Justices the First Circuit court addressed a challenge to the constitutionality of a state statute. The court suggested that judges adjudicating claims under a challenged state statute are acting in a purely adjudicative capacity without a personal or institutional stake on either side of the controversy. In re Justices, 695 F.2d at 22. Because of this lack of interest in upholding the statute they are not proper party defendants in a section 1983 action. “In short, § 1983 does not provide relief against judges acting purely in their adjudicative capacity, any more than, say, a typical state’s libel law imposes liability on a postal carrier or telephone company for simply conveying a libelous message.” Id. The court further noted that, as a matter of comity, it was unwise to encourage or force judges to participate as defendants in a federal suit attacking state law because such action would require them to abandon their neutrality and tend to undermine their role as judges. Id. at 25. The court recognized that in certain instances, state judges might be proper parties; for instance, if they had promulgated the rules under attack, or if in some other way their presence was required to give full relief to the parties. Id. at 22. The court emphasized, however, that “[sjuch cases are unusual, for a court should not enjoin judges from applying statutes when complete relief can be afforded by enjoining all other parties.” Id.

Although In re Justices involved a challenge to the constitutionality of a statute, the Court of Appeals for the Eighth Circuit adopted the same analysis where, as here, the challenge was to the court’s practice. In that case, plaintiffs challenged the court’s practice of detaining juveniles without a probable cause hearing. Having determined that such hearings were constitutionally required, the court found that the judges were not proper parties because plaintiffs’ rights could apparently be vindicated by an injunction directed to the juvenile officer and because the judges, if acting independently of the juvenile officer’s guidance, would comply with the court’s determination that such a hearing is necessary.

As the Defendant judges point out, if warranted, Plaintiffs can obtain full relief in this case through injunctions awarded against the other parties defendant. An order prohibiting the Sheriff from incarcerating juveniles in the Androscoggin County Jail, or an order to the County to improve conditions at the jail, would provide relief under Count I. Full relief could be obtained under Count III if the Sheriff or the County and its Commissioners are directed to separate adults from juvenile offenders at the jail.

Counts II and IV challenge the placement of status offenders in the Androscoggin County Jail, a secure facility, and further challenge Defendants’ failure to seek less restrictive community-based alternatives to confinement at that facility. Maine law requires preconviction detention in the least restrictive residential setting but permits such detention in county jails if the jails meet pertinent requirements for juvenile inmates. 15 M.R.S.A. § 3203. Dispositions for adjudicated juvenile offenders include (1) allowing the juvenile to remain in the custody of the juvenile’s parents; (2) requiring the juvenile to participate in a supervised work program; (3) committing the juvenile to the Department of Corrections or Department of Human Services for placement in a group home, foster home, or residential facility; or (4) committing the juvenile to either Department for provision of services to a juvenile within the juvenile’s home. 15 M.R.S.A. § 3314(1)(A)-(D). Maine law also provides criteria for withholding an institutional disposition. Id., § 3313. Thus, Maine law permits judges to exercise their discretion, guided by statutory criteria, and confine juveniles to the Androscoggin County Jail.

Plaintiff argues that exercise of this discretion removes the judges from their adjudicative capacity and places them in the role of enforcers of the law, who should be subject to suit under the theory of In re Justices. The Court cannot agree. As the Court stated in R.W.T. v. Dalton:

Although the plaintiffs here characterized their attack as one upon the court’s practice rather than upon the constitutionality of the Missouri statutes or Supreme Court Rules, this distinction makes no difference to our analysis. The judges of the Eleventh Judicial Circuit, in the course of deciding juvenile cases, are interpreting Missouri law and the United States Constitution as requiring no probable cause hearings for detained juveniles. The fact that we disagree with them does not make their determination any less an act of disinterested adjudication. Their position is no more adverse to that of the plaintiff than the position of any judge who rules adversely on a point of law to any litigant. Thus the judges were not proper defendants in this suit.

R.W.T. v. Dalton, 712 F.2d at 1233.

Adequate relief can also be obtained by other means. Plainly, the Defendant judges are not charged with providing, nor could they provide, less restrictive alternatives. Such actions are within the purview of the County, its Commissioners and, in cases like this pertaining to juveniles, ultimately the Department of Corrections. See 34-A M.R.S.A. § 1209. Since the Department of Corrections and its Commissioner are not joined as defendants, Plaintiff apparently assumes that they have implemented a plan and set appropriate standards for the county jails and other county detention facilities which, if followed, would make them suitable for juvenile offenders and detainees. See 34-A M.R.S.A. §§ 1208, 1209. Any failure to conform to the standards must, therefore, be attributed to the County or the Sheriff. If the Court, then, were to determine that the Androscoggin County Jail is an inappropriate place of confinement for juvenile status offenders, it could enjoin the Sheriff or the County from confining such juveniles there and direct them to seek or make available less restrictive alternatives. The presence of the judges in this case is not necessary for the Court to award full relief to the parties. Moreover, if this Court were to determine, in a proceeding against the other defendants, that the Androscoggin County Jail is an inappropriate place of confinement for detained status offenders, the Court presumes, as it must, that the judges would follow that determination of the law. In re Justices, 695 F.2d at 22; R.W.T. v. Dalton, 712 F.2d at 1233.

If the district court judge determines that some sort of confinement is necessary for an adjudicated, rather than detained, juvenile offender, he does not send him to jail, but rather commits him to the custody of the Department of Corrections, which then can choose the appropriate facility including, presumably, a county jail. If the Court were to determine that juvenile status offenders were not being placed in the least restrictive community-based alternatives, an injunction directed to the judges would be of no avail for it is the Department which has the placement power. Both the Department and the Sheriff have statutory authority to effect certain transfers of prisoners.

Although Plaintiff suggests that the Supreme Court in Pulliam endorsed injunctive relief of the type sought here, that is not the case. The narrow holding of that case is that “judicial immunity is not a bar to prospective injunctive relief against a judicial officer acting in her judicial capacity.” Pulliam v. Allen, 466 U.S. at-, 104 S.Ct. at 1981, 80 L.Ed.2d at 579. The Court stated explicitly that it expressed “no opinion as to the propriety of the injunctive relief awarded in this case” because the petitioner had appealed the grant of attorney’s fees against her rather than the award of injunctive relief.

Accordingly, it is ORDERED that the Defendant judges Motion to Dismiss be, and is hereby, GRANTED.

So ORDERED.

      . Plaintiff has brought the complaint as the representative of a proposed class of juveniles. However, no motion for class certification has been filed or acted upon yet.

        . Any challenge to the judges' exercise of their discretion among the various dispositional alternatives set forth in § 3314 is not a proper subject for injunctive relief since appeal of any disposition is provided by state law.


author: CALDWELL, District Judge.

text:
    The HARRISBURG HOSPITAL; the Good Samaritan Hospital; Lebanon Valley General Hospital; Philhaven Hospital; and Seidle Memorial Hospital, Plaintiffs v. Richard L. THORNBURGH, Governor; Walter Baran, Secretary of General Services; Pennsylvania State University, Defendants.
    Civ. A. No. 84-1755.
    United States District Court, M.D. Pennsylvania.
    June 25, 1985.

      Fred Speaker, Thomas B. Schmidt, III, Stephen L. Grose, Donna L. Fisher, Pepper, Hamilton & Scheetz, Harrisburg, Pa., for plaintiffs.
    Joel M. Ressler, Dist. Atty. Gen., LeRoy Zimmerman, Atty. Gen., Allen C. Warshaw, Dist. Atty. Gen., Harrisburg, Pa., Henry Barr, Office of General Counsel, Harrisburg, Pa., for defendants.
    Delbert J. McQuaide and R. Mark Faulkner, McQuaide, Blasko, Schwartz, Fleming & Faulkner, Inc., State College, Pa., for Penn State.
   MEMORANDUM

CALDWELL, District Judge.

I. Introduction.

The Health Care Alliance (Alliance), a charitable and educational corporation dedicated to aiding the public as consumers of health care services, has moved to intervene as a plaintiff in this action. The original plaintiffs, five health care providers, filed suit to challenge Pennsylvania legislation allowing defendant, Pennsylvania State University (PSU), to by-pass national and state laws which would normally have required PSU to obtain a certificate of need before starting new construction at the Hershey Medical Center. PSU and the other defendants, Richard L. Thornburgh, the Governor of Pennsylvania, and Walter Bar-an, Secretary of General Services, oppose the motion. For the reasons set forth below, we deny the request to intervene.

II. Discussion.

A. Intervention As Of Right.

Fed.R.Civ.P. 24(a)(2) provides that a person may intervene in an action:

when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

In Pennsylvania v. Rizzo, 530 F.2d 501, 504 (3d Cir.), cert. denied sub nom. Fire Officers Union v. Pennsylvania, 426 U.S. 921, 96 S.Ct. 2628, 49 L.Ed.2d 375 (1976), the Third Circuit Court of Appeals stated the rule as follows:

The question whether appellants were entitled to intervene of right depended on their satisfying the district court in three respects: first, that they had a sufficient interest in the matter, and that their interest would be affected by the disposition; second, that their interest was not adequately represented by the existing parties, and third, that their application was timely.

Without deciding the issue of standing, we can concede that the Alliance, as a representative of health care consumers, has an interest in this case since additional hospital construction without a showing of need may have an impact upon health care costs. With regard to the second consideration, however, we are not convinced that the Alliance’s interests would not be adequately represented by the existing plaintiffs. The intervenor’s proposed complaint, by its own admission, raises the same claims as the plaintiff health care providers. The only exception is the failure to allege the breach of contract claim made by the providers in count VII of their complaint. Hence, the intervenor’s have not satisfied the second part of the test.

We find no merit in the intervenor’s contention that its interests are different from the plaintiffs’ because the plaintiffs are health care providers and the intervenor represents consumers. It is sufficient for the purposes of this lawsuit that their interests coincide. The providers and the intervenors have the same goal here — to require PSU to obtain a certificate of need before commencing construction at the Hershey Medical Center. In Hoots v. Pennsylvania, 672 F.2d 1183 (3d Cir.1982), Save Our Schools (SOS), an unincorporated association composed of property owners, tried to intervene in a ten year old lawsuit involving the restructuring of school district boundaries when the former school district tried to return to the taxpayers funds that had been collected for the districts. The district court refused intervention because it found that the interests of SOS were adequately represented by the Churchill School District, one of the districts involved in the restructuring. On appeal, the court of appeals rejected SOS’s contention that its interests were not identical to the school districts. It stated as follows:

Churchill’s desired goal is precisely that of SOS: to effectuate a refund of taxes. There is no dissimilarity of interests on the refund issue. The Churchill School Board, when active, admittedly tempered its obligations to the pocketbooks of taxpayers with its obligations to the general public — especially school children and their parents, and therefore no identity of interest could have been exhibited between Churchill and SOS at that time. But since the court ordered merger, Churchill’s only remaining motive is to maximize the taxpayers’ refund. For all purposes relevant to the issues presented in this appeal, Churchill represents the taxpayers in the former school district. There are no differences in interest between Churchill and SOS at this stage of the proceedings.

Id. at 1135 (footnote omitted).

The court went on to note that “[djifferences may develop, if Churchill decides’ not to appeal an adverse decision. In that event, SOS may renew its motions to intervene for purposes of appeal.” Id. n. 3 (brackets added). Similar circumstances are present here and the intervenor has failed to show that its interests would not be adequately represented by plaintiffs.

With regard to the third part of the test, timeliness of the request to intervene, the court of appeals has said, citing Nevilles v. EEOC, 511 F.2d 303 (8th Cir.1975), that the following three factors should be considered: (1) how far the proceedings have gone before the movant seeks to intervene; (2) the prejudice that resultant delay might cause to other parties; and (3) the reason for the delay. 530 F.2d at 506.

The complaint was filed on December 31, 1984. The Alliance did not move to intervene until April 22, 1985. By that time, the parties had undertaken discovery and were preparing to file cross-motions for summary judgment and a stipulation of facts. The litigation had accordingly proceeded substantially before the Alliance sought to intervene. Additionally, argument on the motions has been set for July 8,1985, and if the proposed intervenor is permitted into the case, PSU has indicated a reasonable desire to explore the Alliance’s standing to pursue its claims. This would delay a disposition of the case on the merits to the prejudice of the parties. Finally, the proposed intervenor has not set forth an adequate reason for waiting almost four months to attempt to enter the case. It asserts that its Board of Directors could not approve entering the suit until March 18, 1985 and the motion to intervene was filed within thirty days thereafter. In our view, timeliness for the purpose of Rule 24 must refer to the time frame of the litigation and not to any unilateral decision on the part of the intervenor as to when it should, or is able, to take action.

We conclude that the Alliance has failed to justify intervention as of right.

B. Permissive Intervention.

Fed.R.Civ.P. 24(b) provides, in pertinent part, as follows:

Upon timely application anyone may be permitted to intervene in an action ... (2) when an applicant’s claim or defense and the main action have a question of law or fact in common____ In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.

We have already concluded in connection with the Alliance’s request for intervention as of right that its application was not timely. This alone would justify denying permissive intervention. “Whether intervention be claimed of right or is permissive, it is at once apparent, from the initial words of both Rule 24(a) and Rule 24(b), that the application must be ‘timely.’ If it is untimely, intervention must be denied.” Pennsylvania v. Rizzo, supra, 530 F.2d at 506 (quoting NAACP v. New York, 413 U.S. 345, 365-66, 93 S.Ct. 2591, 2602, 37 L.Ed.2d 648, 662 (1973)). Intervention would also delay or prejudice adjudication of the rights of the original parties. The language of the court of appeals from Hoots v. Pennsylvania, supra, is apropos here:

[Wjhere, as here, the interests of the applicant in every manner match those of an existing party and the party’s representation is deemed adequate, the district court is well within its discretion in deciding that the applicant’s contributions to the proceedings would be superfluous and that any resulting delay would be ‘undue.’

672 F.2d at 1136 (brackets added).

We will issue an appropriate order.

ORDER

AND NOW, this 25th day of June, 1985, it is ordered that the motion of the Health Care Alliance to intervene in this action shall be and is hereby denied.


author: NICKERSON, District Judge.

text:
    In re AIRCRASH DISASTER AT MALAGA, SPAIN ON SEPTEMBER 13, 1982 This Document Relates To De Gazpio and Gutierrez v. Spantax
    Case No. 83 Civ. 3963.
    MDL No. 530.
    United States District Court, E.D. New York.
    June 25, 1985.

      Smiley, Olson, Gilman & Pangia, Washington, D.C. (Daniel F. Hayes, Washington, D.C., of counsel), for plaintiff.
    Condon & Forsyth, New York City (Michael J. Holland, New York City, of counsel), for Spantax.
   MEMORANDUM AND ORDER

NICKERSON, District Judge.

Defendant Spantax, S.A. (Spantax) moves for dismissal of or summary judgment on the De Gazpio and Gutierrez complaints on the ground that plaintiffs lack capacity to sue under Federal Rule of Civil Procedure 17(b).

Plaintiffs assert claims for the wrongful death of their respective spouses in an airplane crash in Malaga, Spain on September 13, 1982. Jurisdiction is based on the Convention for the Unification of Certain Rules Relating to International Transportation by Air, 49 U.S.C. § 1502 note (the Convention) and diversity of citizenship, 28 U.S.C. § 1332.

Spantax claims that under New York law plaintiffs must be personal representatives to maintain a wrongful death action, and that plaintiffs have not been duly appointed. The parties agree that although the complaints allege that plaintiffs are the personal representatives of the decedants, in fact they had not been appointed. Plaintiffs contend, however, that such appointment is not necessary to maintain a wrongful death action under the Convention since under the laws of Spain and Mexico, the respective domiciles of Gutierrez and De Gazpio, spouses may maintain wrongful death actions.

The Convention creates an independent cause of action for wrongful death. Benjamins v. British European Airways, 572 F.2d 913 (2d Cir.1978), cert. denied, 439 U.S. 1114, 99 S.Ct. 1016, 59 L.Ed.2d 72 (1979). Article 17 of the Convention provides in pertinent part that “[t]he carrier shall be liable for damages sustained in the event of the death or wounding of a passenger.” Neither the Convention nor the Benjamins case state who may bring such an action. See Convention, Article 24(2). Courts have looked to analogous federal statutes to determine who is entitled to assert the cause of action. See In re Mexico City Aircrash of October 31, 1979, 708 F.2d 400, 414-15 & n. 27 (9th Cir.1983); Windbourne v. Eastern Air Lines, Inc., 479 F.Supp. 1130, 1163, 1166 (E.D.N.Y.1979), rev’d on other grounds, 632 F.2d 219 (2d Cir.1980).

It is not necessary for plaintiffs to obtain ancillary letters from a New York State court in order to pursue a wrongful death action under the Convention so long as plaintiffs have “some kind of authorization” from their domicile to pursue these action on behalf of the decedents. See Complaint of Cosmopolitan Shipping Company, 453 F.Supp. 265 (S.D.N.Y.1978) (under Death on High Seas Act and Jones Act); Windboume, supra, 479 F.Supp. at 1163 and cases cited.

Plaintiff Gutierrez submits a declaration of heirs decided December 23, 1983 by Judge Teodore Sarmiento Hueso declaring decedent’s grandmothers as her sole and universal heirs without prejudice to the “legal usufructuary right” of the surviving spouse. Gutierrez also submits a statement by Jose Luis Fernandez Ruiz, a lawyer and professor at the University of the Basque Country, that under Spanish law the right to maintain a wrongful death action is personal not hereditary and that decedent’s next of kin, such as a spouse or child, may maintain the action without showing that they are heirs.

Plaintiff De Gazpio submits a copy of a decree by Judge Javier Arturo Salgado Munoz dated March 8, 1985 declaring De Gazpio and her son the “only and universal heirs” of decedent, and De Gazpio the Administrator of the inheritance. De Gazpio also submits an opinion letter by Francisco Rivera Duarte, apparently a Mexican lawyer, stating that under Mexican law a spouse may initiate a wrongful death action even without a declaration of heirs.

In deciding questions of foreign law, the court may look to written testimony by experts and others and foreign legal materials. See 9 Wright & Miller, Federal Practice and Procedure § 2444 (1971); Alosio v. Iranian Shipping Lines, S.A., 426 F.Supp. 687, 689 (S.D.N.Y.1976). Spantax does not dispute, although it had opportunity to do so, .the plaintiffs’ authority to maintain wrongful death actions under Spanish and Mexican law.

To the extent plaintiffs seek recovery not under the Convention but under state law, plaintiffs are required within 60 days of the date of this order to obtain appropriate authorization from the state to maintain the action. See Brohan v. Volkswagen Manufacturing Corporation of America, 97 F.R.D. 46 (E.D.N.Y.1983).

Spantax’s motion is denied. So ordered.


text:
    Pamela RECORD, Plaintiff, v. MILL NECK MANOR LUTHERAN SCHOOL FOR THE DEAF, Defendant.
    No. 84 C 4264.
    United States District Court, E.D. New York.
    June 25, 1985.

      Jose A. Rivera, Brooklyn, N.Y., for plaintiff.
    Clifton Budd Burke & DeMaria, New York City (Michele Costanza, Kevin J. McGill, New York City, of counsel), for defendant.
   MEMORANDUM AND ORDER

NICKERSON, District Judge.

Plaintiff brought this action pursuant to 42 U.S.C. § 2000e(k) (title VII) and under state law for discrimination on the basis of sex in the terms and conditions of employment. The court has jurisdiction under 28 U.S.C. § 1343(4), 42 U.S.C. § 2000e-5(f)(l) and pendent jurisdiction.

The complaint alleges, in pertinent part, that defendant employed plaintiff as an art teacher beginning on March 19, 1979, that plaintiff took a “maternity leave” in January 1982, that while on leave plaintiff informed defendant that she might be pregnant again and would require another leave, and that defendant did not renew her contract claiming that plaintiff had not pursued certification for deaf education in a timely fashion.

The case was tried to the court commencing May 2, 1985. The court makes the following findings of fact and conclusions of law.

Plaintiff began her employment with defendant on March 19, 1982 as an art teacher. To hold the position plaintiff was required under state law to be certified for teaching art and teaching the deaf. Plaintiff had obtained her permanent art certification in 1977 but was not certified to teach the deaf and had taken no courses toward obtaining the certificate.

At the time of her employment plaintiff was informed by Henry Bjorlie, the superintendent at defendant, and Miss Weidner, the principal of defendant, that she would have to pursue courses toward deaf education certification and that they would recommend waiver of the certification requirement for the rest of the year. Plaintiff agreed but said she could not immediately pursue the certificate since she was finishing her thesis for a masters degree in fine arts from Adelphi University. Plaintiff was told that she could receive a waiver of the certification requirement so long as she was pursuing the requirements for certification.

Plaintiff continued to work at defendant during academic years 1979-80 and 1980-81, received waivers of the certification requirement, but took only two sign language classes. Although usually an employee must pursue six credit hours per year of required study toward certification, Bjorlie could recommend waiver as a kind of an initial employment if a certified applicant were unavailable. In November 1981 plaintiff left to have her first baby, using her accumulated sick leave, and began her child-rearing leave in January 1982.

On March 19, 1982, in response to a site review of defendant by the Commissioner of Education, Bjorlie wrote to plaintiff that she was required to be certified under the State Education Laws and that he had no record of course work taken toward certification. He asked her to come in to review her status and time limits for the fulfillment of certification requirements. On May 4, 1982 Bjorlie again wrote to plaintiff informing her that he must seek waiver of certification on an annual basis and that such waiver is seldom renewed after two years. At the time of the request for a waiver the employee must demonstrate an intent to work toward certification at a rate of at least six semester hours per year. Again he asked plaintiff to come in to see him.

On May 13, 1982 plaintiff met with Bjorlie. She informed him that she would continue to work toward certification. Plaintiff also asked if her leave could be extended another year and Bjorlie agreed. In the fall of 1982 plaintiff took a 3-credit one semester undergraduate course in deaf education at Adelphi University.

In March 1983 Bjorlie wrote to plaintiff asking whether she intended to return in the fall. On April 8,1983 plaintiff met with Bjorlie and said she was hoping to be pregnant in the fall and requested that her leave be extended so that she would not come back pregnant. Bjorlie said her leave could not be extended but that if she were pregnant when she returned there would be no problem in receiving time off to have the baby. Plaintiff also told Bjorlie that she had taken one course at Adelphi University and would continue to pursue certification. In May plaintiff called Bjorlie and told him she was pregnant.

In a phone call in May or June Bjorlie offered plaintiff a woodworking position which she declined. Bjorlie was willing to offer plaintiff the woodworking position and recommend waiver of certification for two reasons. First, should plaintiff take another leave the woodworking class would be less disrupted than the art class since woodworking was project oriented rather than run on a year-long curriculum. Second, two teachers would need to be shifted if plaintiff took a leave from the art position, since the woodworking teacher — who had replaced plaintiff during her absence— would return to the art position and a new woodworking teacher would need to be hired.

On June 24,1983 Bjorlie advised plaintiff by letter that her position as an art teacher would not be renewed due to her non-compliance with the certification requirements.

Plaintiff has not shown that defendant’s legitimate concern over the disruptive effect of a child-rearing leave on the faculty and students was pretextual. The fact that Bjorlie offered plaintiff a position in the woodworking department raises the inference that plaintiff’s failure to pursue deaf education certification would not be an obstacle to employment at defendant. Bjorlie was legitimately concerned, however, about class continuity and faculty reassignment.

There is no evidence that Bjorlie’s decision to offer plaintiff the woodworking position and to terminate her were based on plaintiff’s desire to take a pregnancy leave. Plaintiff herself testified credibly that Bjorlie said there would be no problem in her leaving to have a baby. The problem of class and faculty disruption was caused by plaintiff’s desire to take a leave of absence to raise the child.

Title VII, as amended by the Pregnancy Discrimination Act, does not protect people wishing to take child-rearing leaves as opposed to women wishing to take pregnancy leaves. See, Note, Sexual Equality Under the Pregnancy Discrimination Act, 83 Colum.L.Rev. 690, n. 2 (1983); Equal Employment Opportunity Commission-Guidelines, 29 C.F.R. § 1604, App. (1984) (Question and Answer 18); 1 A. Larson & L.K. Larson, Employment Discrimination-Sex § 38.70-Parental Leave. A disservice is done to both men and women to assume that child-rearing is a function peculiar to one sex. Whether leaves for child-rearing should be protected from employer discrimination, as leaves for jury duty are, is not a question for this court to determine. Plaintiff does not claim that defendant’s actions have a disparate impact on women nor that child-rearing leaves are only granted to women.

The court finds that defendant did not discriminate against plaintiff on the basis of sex. The complaint is dismissed with costs. So ordered.