author: COHEN, Senior District Judge:

text:
    HOTEL AND RESTAURANT EMPLOYEES AND BARTENDERS INTERNATIONAL UNION, LOCAL 54, Plaintiff, v. RAMADA, INC., t/a Tropicana Hotel and Casino, Defendant.
    Civ. A. No. 85-3856.
    United States District Court, D. New Jersey.
    Jan. 9, 1986.
    Meranze and Katz by Bernard N. Katz, Atlantic City, N.J., for plaintiff.
    Blank, Rome, Comisky & McCauley by Peter A. Gold, Haddonfield, N.J., for defendant.
   OPINION

COHEN, Senior District Judge:

Plaintiff, Hotel and Restaurant Employees and Bartenders International Union, Local 54 (Local 54), brought this action to enforce a labor arbitration award pursuant to § 301 of the Labor Management Relations Act, 29 U.S.C. § 185. The matter is presently before the Court on a motion by the defendant, Ramada, Inc., t/a Tropicana Hotel and Casino (Tropicana), to dismiss the Complaint for failure to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6). The basis upon which defendant seeks dismissal of the Complaint is its contention that plaintiff's action is time-barred. We must therefore determine what limitations period is applicable to an action to enforce an arbitrator’s award. Because we hold that New Jersey’s six-year statute of limitations for contractual claims applies, we shall deny defendant’s motion.

Defendant Tropicana and Plaintiff Local 54 were parties to a collective bargaining agreement during all times relevant to this case. In March 1984, a union member, Ms. Lanetta Byrd, was discharged from employment at Tropicana following a physical confrontation between Ms. Byrd and her supervisor. Pursuant to the aforesaid agreement, Local 54 filed a grievance challenging Ms. Byrd’s termination. Thereafter, Local 54 sought arbitration of the grievance. On July 20, 1984 and August 3, 1984, hearings were held in Atlantic City, New Jersey, before Arbitrator Charles Mullin, Jr. The issue for the arbitrator, in his own words, was “whether or not the grievant was discharged for just cause.” Arbitrator Mullin’s decision at 1. Local 54 sought, as a remedy, reinstatement of the employee and the award of back pay. See grievance form.

The arbitrator’s decision, dated September 11, 1984, was mailed to counsel on September 17, 1984. The decision stated that the discharge was improper, and ordered reinstatement of Ms. Byrd. The request for an award of back pay was denied, Arbitrator Mullin’s decision at 9, but the defendant was directed to pay the medical expenses incurred by plaintiff as a result of the physical confrontation which precipitated Ms. Byrd’s discharge. Id. Defendant’s failure to pay these expenses, which totaled $257.25, gave rise to the instant action.

The timespan between the parties’ receipt of the arbitrator’s decision and the filing of the complaint with this Court was almost one year. The events occurring during that period have not yet been established. Plaintiff maintains that notice of the medical bills was given to the defendant on “numerous occasions,” Plaintiff’s brief at 2, but that plaintiff did not have reason to know that the defendant would not comply with the arbitrator’s award until receipt of a letter to that effect from defendant’s counsel dated June 24, 1985. Defendant’s position in refusing to pay the medical costs is that the award of these expenses was clearly beyond the arbitrator’s authority, and was therefore void. Defendant’s brief at 8.

In support of its claim that the arbitrator had no authority to grant reimbursement for the medical expenses, the defendant contends (and plaintiff does not dispute) that the issue of payment of medical expenses was never submitted to the arbitrator. Irrespective of the potential merits of this challenge to the award, defendant did not appeal the arbitrator’s decision, and does not directly challenge the same in this motion. Rather, defendant’s present motion rests upon its assertion that plaintiff is time-barred from obtaining relief from this Court.

Defendant characterizes plaintiff’s action as one for confirmation oí the arbitrator’s award, and argues that it is precluded by operation of New Jersey Statute 2A:24-7. This statute provides, in relevant part, that any party to an arbitration may bring a summary action to confirm, vacate, or modify an award within three months of the delivery of the award to him. Since the complaint in this case was filed more than ten months after the award was mailed, defendant contends that plaintiff is barred from obtaining the relief sought.

Plaintiff’s response to defendant’s motion is threefold. Plaintiff argues that 1) N.J.S.A. 2A:24-7 does not preclude the present action, 2) the running of any applicable time period has been tolled by defendant’s conduct, and 3) the arbitrator’s award was proper. Because we agree with the plaintiff’s contention that N.J.S.A. 2A:24-7 does not preclude the underlying action, we do not reach the issues of equitable tolling or the arbitrator’s authority.

The issue of what statute of limitations applies in § 301 actions has been discussed recently by the United States Supreme Court. In DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 158, 103 S.Ct. 2281, 2287, 76 L.Ed.2d 476 (1983), the Court noted that no federal statute of limitations is expressly applicable to § 301 suits. In such situations, the Court is called upon to “borrow” the most suitable time limit from another source. Id. Generally, the Court has concluded that the most closely analogous state statute of limitations should apply in federal actions which are without a specified federal timeliness rule. Id. There may be circumstances, however, when the state limitations statutes are at odds with the operation of the substantive federal law involved, and, in these instances, applying the state rule would be inappropriate. Id. In such situations, timeliness rules from federal law are to be applied. Id.

DelCostello involved a suit by an employee against both his employer and his labor union under § 301 of the LMRA. This type of suit, referred to as a “hybrid § 301/fair representation” claim, alleges that the employer has breached the applicable collective bargaining agreement, and that the union has breached its duty of fair representation in the grievance and arbitration proceedings. Id. at 164, 103 S.Ct. at 2290. See also Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); Hines v. Anchor Motor Freight, 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976). The DelCostello Court, finding that there was no appropriate state limitations period, held that the six-month time limitation of § 10(b) of the National Labor Relation Act governed these hybrid suits. DelCostello, 462 U.S. at 172, 103 S.Ct. at 2294.

The critical question raised in the present motion with respect to DelCostello is whether the six-month time period adopted therein applies to all actions brought pursuant to § 301 of the Labor Management Relations Act. Defendant asserts that the Third Circuit, in Scott v. Local 863, International Brotherhood of Teamsters, 725 F.2d 226 (3d Cir.1984), interpreted DelCostello as establishing a uniform six-month period for all § 301 actions. Defendant’s brief at 5. We disagree with this reading of Scott. Scott is a straightforward application of DelCostello to a hybrid § 301 suit, and we see nothing in the Third Circuit’s opinion which indicates that the Scott court interpreted DelCostello as extending beyond the hybrid suit situation.

Our own reading of DelCostello leads us to conclude that the six-month period was not intended to be applied to § 301 suits which did not fit the “hybrid” model. See also Farr v. H.K. Porter Co., Inc., 727 F.2d 502, 505 (5th Cir.1984) (DelCostello limited to hybrid suits). We find DelCostello’s discussion of and reliance upon Auto Workers v. Hoosier Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966) (hereinafter Hoosier), instructive. The DelCostello Court explicitly distinguished suits by a union against an employer (as in Hoosier) and suits by an employee against both his union and his employer (as in DelCostello). See DelCostello, 462 U.S. at 162-63, 103 S.Ct. at 2289-90. The DelCostello Court expressed its agreement with Justice Stewart’s separate concurrence in the United Parcel Service v. Mitchell, 451 U.S. 56, 65-71, 101 S.Ct. 1559, 1565-68, 67 L.Ed.2d 732 (1981) (hereinafter Mitchell) decision, which emphasized the distinction between these two types of lawsuits. As Justice Stewart wrote in Mitchell:

The case before us is quite unlike the one in Hoosier. It is ... brought by an employee against both his employer and his union in order to set aside a “final and binding” determination of a grievance, arrived at through the collectively bargained method of resolving the grievance. It is, therefore, a direct challenge to “the private settlement of disputes under [the collective-bargaining agreement].”

The action presently before this Court differs from the DelCostello case, as Hoosier did, with respect to the parties and the type of claims alleged. In the present case, a union seeks to enforce an award against an employer, and no claims by an employee against his union for breach of duty in representation are present. Our reading of the DelCostello case is that the Court left the Hoosier decision intact, and limited the DelCostello holding to suits involving the “hybrid” employee — against— union-and-employer suits. As such, DelCostello does not control this case, and Hoosier directs us to consult state statutes of limitation. Hoosier, 383 U.S. at 705, 86 S.Ct. at 1113.

In Heffner v. Jacobson, 449 A.2d 1334, 185 N.J.Super. 524 (Ch.Div.1982), aff'd 469 A.2d 970, 192 N.J.Super. 299 (App.Div. 1983), the New Jersey Superior Court held that failure to timely confirm an arbitration award under N.J.S.A. 2A:24-7 was not a bar to a prevailing party’s right to enforce the award. Delay beyond the ninety-day period established by N.J.S.A. 2A:24-7 only causes the loss of the automatic right to proceed in summary fashion, and does not preclude future actions to enforce the award. 185 N.J.Super. at 528, 449 A.2d 1334. Such future actions are to be governed by the timeliness rules for contractual claims. Taylor v. Ford Motor Co., 703 F.2d 738, 745 (3d Cir.1983). The New Jersey statute of limitations for contractual claims is six years, N.J.S.A. 2A:14-1, and this period has not yet run. Accordingly, defendant’s motion to dismiss shall be denied. The Court shall enter an appropriate order.

      . We note that there are significant policy considerations that an action to overturn an award raises which are not raised by an action to affirm or enforce. See Derwin v. General Dynamics Corp., 719 F.2d 484, 489 (1st Cir.1983) (it is necessary to distinguish between actions to vacate and actions to confirm since application of a relatively lengthy time limitation to confirmation actions does not threaten the finality of arbitration awards).

      . The Court noted that even summary action might still be available under New Jersey Court Rule 4:67-2(b).

      . In light of the reasoning set forth in DelCostello, 462 U.S. at 164-69, 103 S.Ct. at 2290-93, it may be questioned whether the holding of Taylor that New Jersey’s six-year statute of limitations applied to an employee's § 301 suit against his union can stand. See Erkins v. United Steelworkers of America, 723 F.2d 837, 839 (11th Cir.) (the presence of a labor law element, not just the hybrid nature of the suit, make § 10b appropriate), cert. denied, — U.S. -, 104 S.Ct. 3517, 82 L.Ed.2d 825 (1984). We deal, in the instant case, with a union’s suit against an employer.


source: Caselaw Access Project

author: LOVELL, District Judge.

license: Public Domain

text:
    Riley H. WISE, Plaintiff, v. COMMISSIONER OF INTERNAL REVENUE SERVICE, and Authorized Agent, Roger Steele, K. Hamilton, Mr. Child, Susan Shoemaker, Ocean Technology Ltd., Hewitt V. Lounsbury and Associates, Defendants.
    No. CV 85-60-M-CCL.
    United States District Court, D. Montana, Missoula Division.
    Jan. 9, 1986.

      Riley H. Wise, pro se.
    Birgitta Anderson, William L. Madden, Jr., Goetz, Madden & Dunn, Bozeman, Mont., for defendants Ocean Tech & Hewitt V. Lounsbury.
    Michael Lichtenberg, Dept, of Justice, Trial Atty. Tax Div., Washington, D.C., for U.S. & all federal defendants.
    Robert Brooks, Asst. U.S. Atty., Butte, Mont., for all federal defendants.
   OPINION AND ORDER

LOVELL, District Judge.

Plaintiff filed this action pro se seeking declaratory and injunctive relief and “sanctions” against the United States in the amount of $20,000.00. Plaintiff’s complaint is based upon the disallowance by the Internal Revenue Service (IRS) of plaintiff’s Form W-4, claiming exemption from the withholding requirements of the Internal Revenue Code, 26 U.S.C. § 3402. Named as defendants, in addition to the Commissioner of Internal Revenue, are several employees of the IRS and plaintiff’s former employers, Ocean Technology, Ltd., (Ocean Tech) and Hewitt V. Lounsbury and Associates (Lounsbury). Plaintiff’s claims against Ocean Tech and Lounsbury are based upon their withholding of federal income taxes from plaintiff’s wages in compliance with the directives of the IRS despite plaintiff’s claimed exemption therefrom. All defendants have moved to dismiss.

1. Federal defendants

Pursuant to Rule 12(b)(5), Fed.R.Civ.P., the United States has filed a motion to dismiss on behalf of the Commissioner and all defendant-employees of the IRS. In support of its motion the United States contends (1) that no individual federal defendant was properly served with process, (2) that the United States was never served with process, and (3) that venue is improper in the District of Montana. In response, plaintiff claims that service was properly made on all federal defendants by mail in accordance with Rule 4(c)(2)(C)(ii), Fed.R. Civ.P.

Rule 4(c) allows service by mail only upon individuals, corporations and partnerships as provided by Rule 4(d)(1) and (3). Rule 4(d)(5) provides that service upon an officer or agency of the United States shall be made by serving the United States and by sending a copy to the officer or agency named in the suit. Service upon the United States is to be made by delivering a copy of the summons and, complaint to the United States Attorney or Assistant United States Attorney in the district where the action is brought and by sending a copy of the summons and complaint by registered or certified mail to the Attorney General of the United States. Rule 4(d)(4), Fed.R. Civ.P. Thus, to properly have served the individual federal defendants, plaintiff would have had to (1) deliver a copy of the summons and complaint to the United States Attorney for the District of Montana, (2) mail a copy of the same to each named individual defendant, and (3) send by registered or certified mail a copy of the same to the United States Attorney General in Washington, D.C. Neither the Attorney General nor the United States Attorney for this district has received a copy of the summons and complaint.

Plaintiff claims that he has not sued the United States but only its agents, and that all federal defendants were named in their individual capacities. It is clear from the language of the complaint, however, that plaintiff seeks injunctive relief and monetary relief from the United States, that he has named the head of a federal agency strictly in that capacity, and that the actions which form the basis of the claims against the individual federal defendants were taken in the performance of their official duties. Plaintiff has alleged no facts showing that any of the federal defendants acted outside the scope of their duties. “It is also clear that any relief granted would expend itself on the public treasury or interfere with the public administration of the tax system. Therefore, the action is really against the United States.” Richcreek v. Grecu, 612 F.Supp. 111, 115 (N.D.Ill.1985). As such, there can be no question that the federal defendants are being sued in their official capacity and thus that the provisions of Rule 4(d)(5) are applicable to them. See, Cameron v. I.R.S., 593 F.Supp. 1540 (N.D.Ind.1984); Ross v. United States, 574 F.Supp. 536 (S.D.N.Y.1983); Lawrence v. Acree, 79 F.R.D. 669 (D.D.C.1978).

Even if plaintiff is suing the federal defendants individually as well as officially, service was still improper under Rule 4(c)(2)(C)(ii). That rule requires that two copies of a notice and acknowledgment form and a return envelope be mailed with a copy of the summons and complaint. If no acknowledgment is received by the sender within twenty days after the date of mailing, service must be made in accordance with the other provisions of Rule 4. Moreover, Rule 4(c)(2)(E) requires that the notice and acknowledgment of receipt of the summons and complaint be executed under oath or affirmation.

In this case, service was purportedly made by sending a copy of the summons and complaint by certified mail to the place of employment of each individual federal defendant. Copies of the return receipts, attached to plaintiffs brief, show that an agent in each office signed or initialed the respective receipts. There is nothing, however, to show that the individuals who received the documents did so under authority to accept service on behalf of the defendants, nor is there any indication that an acknowledgment of service was either sent or returned. Under Rule 4(c)(2)(C)(ii), there is no valid service where an acknowledgment form is never signed and returned. Stranahan Gear Co. v. NL Industries, Inc., 102 F.R.D. 250 (E.D.Pa. 1984).

Since no valid service was effected upon either the United States or the individual federal defendants, those defendants are not properly before the Court. The fact that the defendants may have been aware that an action had been filed and that they were named as defendants is not a substitute for service on them. Morrissey v. Curran, 482 F.Supp. 31 (S.D.N.Y. 1979), aff’d in part, rev’d in part 650 F.2d 1267. Failure to effect service normally will result in service being quashed without the action being dismissed, but where venue is also improper the action will be dismissed. Bacino v. American Federation of Musicians, 407 F.Supp. 548 (N.D.Ill. 1976).

Venue is improper in this case under 28 U.S.C. § 1391(b), which provides that “[a] civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district where all defendants reside, or in which the claim arose____” Since plaintiffs action is based upon the alleged deprivation of constitutional rights in violation of federal law, jurisdiction is not founded on diversity. Only one defendant in this action is a Montana resident. Therefore, plaintiffs suit could have been brought only in the District of Alaska, where all the events on which plaintiffs claim is based occurred. Plaintiff will not be prejudiced by dismissal of the federal defendants for improper venue, since there does not appear to be a limitations problem. See, Lowery v. Estelle, 533 F.2d 265 (5th Cir.1976).

2. Non-federal defendants

Ocean Tech and Lounsbury have moved for dismissal on two grounds. They first claim that this Court has no jurisdiction over them under the long-arm statute of the State of Montana. Second, under Rule 12(b)(6), Fed.R.Civ.P., they assert that plaintiff has failed to state a claim against them for which relief can be granted. Both Ocean Tech and Lounsbury have also moved for an award of costs and attorneys’ fees against plaintiff.

For a federal district court to entertain personal jurisdiction over a defendant, two tests must be satisfied. First, the court must apply the long-arm statute of the state in which it sits. Paccar International, Inc., v. Commercial Bank of Kuwait, 757 F.2d 1058 (9th Cir.1985). Second, the court must find that application of the statute is consistent with due process. Taubler v. Giraud, 655 F.2d 991 (9th Cir.1981).

Under Montana’s long-arm statute, Rule 4B, M.R.Civ.P., a defendant must do some act by which it subjects itself to jurisdiction in this state. The uncontested affidavits of the presidents of Ocean Tech and Lounsbury show without doubt that neither defendant has transacted any business within Montana, has committed any act resulting in accrual of a tort action in Montana, owns or possesses any property in Montana, or has entered into any contracts within or relating to Montana. ■ Plaintiff was hired by Ocean Tech and Lounsbury in Alaska, and none of his employment activities involved the state of Montana in any way. Thus, it is clear that Ocean Tech and Lounsbury cannot be brought under the Montana long-arm statute to be subjected to federal jurisdiction in the District of Montana. In addition, exercise of jurisdiction over them would conflict with due process and traditional notions of fair play and substantial justice.

Even if this Court were to find Ocean Tech and Lounsbury subject to jurisdiction within the District of Montana, dismissal of these defendants would still be the ultimate result. Under no interpretation of the allegations contained in plaintiff’s complaint can plaintiff prove a set of facts entitling him to relief against Ocean Tech or Lounsbury.

Plaintiff’s claims against the non-federal defendants are apparently brought under 42 U.S.C. §§ 1983 and 1985, asserting violation, under color of state law, of plaintiff’s civil and other constitutional rights. Plaintiff also claims that Ocean Tech and Lounsbury acted in contravention of 26 U.S.C. § 3402(n), under which an employer is not required to make withholding deductions where the employee has furnished an appropriate withholding exemption certificate, commonly known as a Form W-4. Plaintiff asserts that the defendants conspired to classify him as a “tax protester” and that they wrongfully withheld taxes from his wages in disregard of his Form W-4.

Pursuant to 25 C.F.R. 31-3403(f)-2(l)(g), Ocean Tech and Lounsbury submitted a copy of plaintiff’s withholding exemption certificate to the IRS. Upon receipt of written notice from the IRS that plaintiff’s certificate was defective and should be disregarded, Ocean Tech and Lounsbury began withholding taxes from plaintiff’s wages in accordance with the directives of the IRS. Plaintiff does not claim that the non-federal defendants violated any of the procedures required by the IRS regulations, 25 C.F.R. 31.3402(f) et seq., but only that they did not honor his withholding exemption certificate.

The Internal Revenue Code expressly provides that the employer must pay the taxes required by law to be deducted and withheld, and that the employer is not liable to any person for the amount of any such payment. 26 U.S.C. § 3403. Therefore, an employee has no cause of action against his employer to recover wages withheld and paid to the government in satisfaction of federal income tax liability. Edgar v. Inland Steel Co., 744 F.2d 1276 (7th Cir.1984); Stonecipher v. Bray, 653 F.2d 398 (9th Cir.1981), cert. den. 454 U.S. 1145, 102 S.Ct. 1006, 71 L.Ed.2d 297; McFarland v. Bechtel Petroleum, Inc., 586 F.Supp. 907 (N.D.Cal.1984).

“Even assuming that [§ 3403] does not bar plaintiff[’s] action, which it does, [plaintiff] cannot recover under 42 U.S.C. § 1983.” Edgar, supra, at 1278. Section 1983 protects against deprivation of constitutional rights by persons acting under col- or of state law. Any actions taken by the defendants in compliance with the instructions of the IRS were done under color of federal law, and thus are not actionable under Section 1983. Id., Stonecipher, supra, at 403.

Plaintiff cannot state a claim under 42 U.S.C. § 1985 for the reason that Section 1985 is intended to protect against racial or other invidious class-based discrimination, of which there is no allegation here.

Plaintiff would be well-advised to read Stonecipher v. Bray, supra, 653 F.2d 398, which this Court is bound to follow, and McFarland v. Bechtel Petroleum, Inc., supra, 586 F.Supp. 907. Both cases discuss plaintiffs contentions thoroughly.

Ocean Tech and Lounsbury have requested the Court to award them nearly $6,000.00 in attorneys’ fees, citing authority for such fees in similar actions.

The American rule concerning attorneys’ fees is that fees generally are not awarded absent statutory authorization. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 269, 95 S.Ct. 1612, 1617, 44 L.Ed.2d 141 (1975). There is an exception, however, where a frivolous action is filed in bad faith, vexatiously, wantonly, or for oppressive reasons. Id., at 258-59, 95 S.Ct. at 1622. Award of fees under this exception is discretionary. Id., American Employers Ins. Co. v. American Sec. Bank, 747 F.2d 1493, 1502-03 (D.C.Cir. 1984).

Under clearly-established principles of law, plaintiffs claims against Ocean Tech and Lounsbury are meritless. The slightest amount of research on plaintiff’s part would have disclosed the lack of foundation for his claim and demonstrated the futility of filing this action against his employers. Plaintiff is acting pro se, however that does not excuse him from researching the law. Defendants rely on cases involving only slightly more egregious factual situations than the one present here. Lonsdale v. Smelser, 709 F.2d 910 (5th Cir.1983) (fees awarded after plaintiff brought action following dismissal of similar action as frivolous); McFarland v. Bechtel Petroleum, Inc., supra (profusion of lawsuits directed against a single employer); see also Richcreek v. Grecu, supra, 612 F.Supp. at 115 (repetitive filing of frivolous lawsuits).

I find this to be within the American Employers rule, and attorneys’ fees will be awarded.

Where the award of fees is discretionary, how does a judge do justice under these circumstances? Plaintiff asserts that he is not a “tax protester,” and he claims he has paid all taxes owing to the United States. That may be; however, plaintiff’s own allegations and exhibits show that his complaint is based on ideological disputes with the method of taxation in this country. For example, in Exhibit “L” attached to the complaint, plaintiff asserts that wages do not constitute income under the law and thus plaintiff can incur no tax liability by earning wages. This and other contentions of plaintiff are time-worn arguments, consistently rejected by federal courts across the United States. See, Lonsdale v. Commissioner, 661 F.2d 71 (5th Cir.1981).

While plaintiff has acted, in part at least, in anger and frustration, I cannot find that he has acted with deliberate express malice as to the non-federal defendants. Too, citizen participation in government — even through pro se litigation against the government — ought not be unduly discouraged. For these reasons, I decline to award the moving defendants the total amount of fees ($5,923.27) they have demanded, even though plaintiff has submitted no affidavit challenging that amount as unreasonable.

On the other hand, the defendants have clearly been wronged and damaged by plaintiffs actions, which can be characterized — at best — as frivolous, wanton, and reckless. Additionally, plaintiff should be made to realize his error before he does injury to others or further injury to himself.

There are those who believe they can ignore the decisions of the United States courts and can read our Constitution in a vacuum, construing its provisions as they please. Many of these people are misled and misguided by others who, carefully, do not put themselves at risk but rather seem to act as “coat-holders”. Some protest our tax laws by refusing payment and incurring criminal penalties, while others file frivolous civil suits. In both instances they seem to exalt their personal views above the law as decided by our courts. Here, plaintiffs wrath has also wrongfully injured innocent private parties.

I find that plaintiff should be required to pay Ocean Tech and Lounsbury the sum of $500 each as partial reimbursement for their reasonable fees and costs herein incurred.

Based upon the foregoing,

IT IS HEREBY ORDERED:

1. The complaint against defendants Commissioner of Internal Revenue, Roger Steele, K. Hamilton, Mr. Child, and Susan Shoemaker is DISMISSED without prejudice for insufficient service of process and improper venue.

2. The complaint against defendants Ocean Technology, Ltd., and Hewitt V. Lounsbury and Associates is DISMISSED in its entirety with prejudice for lack of jurisdiction over said defendants and for failure to state a claim upon which relief can be granted.

3. Defendants Ocean Technology, Ltd., and Hewitt V. Lounsbury and Associates’ motion for attorneys’ fees is GRANTED and said defendants are awarded $500 each.

       For a thorough discussion of in personam jurisdiction and the Ninth Circuit's underlying tests, see First National Montana Bank v. Federal Leasing, Inc., 618 F.Supp. 491 (D.Mont.1985).


text:
    Joanne KYRISS, in her capacity as Conservator for Frank Templin, Plaintiff, v. The AETNA LIFE AND CASUALTY COMPANY, a Connecticut corporation, Defendant.
    No. CV 84-115-M-CCL.
    United States District Court, D. Montana, Missoula Division.
    Jan. 9, 1986.

      Terry Trieweiler, Whitefish, Mont., Sharon Morrison, Helena, Mont., for plaintiff.
    Douglas Buxbaum, Poore, Roth & Robinson, Butte, Mont., for defendant.
   OPINION AND ORDER

LOVELL, District Judge.

On October 3, 1985, the Supreme Court of Montana upheld a damage award in the amount of $225,000 in favor of the above-named plaintiff against the State of Montana and two physicians, Roger A. Ganfield and Leonard M. Benjamin, who treated Frank Templin at the Montana State Prison. Kyriss v. State of Montana, et al., 42 St.Rep. 1487, 707 P.2d 5 (Mont.1985). Frank Templin was incarcerated for forging a check in the amount of $30.00. While imprisoned, Templin’s right great toe became infected. Over a period of time his condition worsened, eventually resulting in gangrene, and doctors were forced to amputate his right leg. Plaintiff instituted a medical malpractice action in state district court, and by the time the jury verdict was affirmed by the state supreme court Frank Templin had died.

During the pendency of the appeal, plaintiff filed this action against Aetna Life and Casualty Company (“Aetna”), the professional liability insurer of Doctors Ganfield and Benjamin. Plaintiff’s complaint alleges that Aetna breached its statutory obligation to negotiate in good faith with Frank Templin or his Conservator and to expeditiously settle his claim.

Aetna has moved to strike three paragraphs from the complaint which allege that Aetna acted in bad faith and solely for the purpose of delay in appealing the state court verdict and judgment to the Supreme Court of Montana. Because Aetna’s motion was filed more than 20 days after the complaint was served, it will be treated as a motion for judgment on the pleadings. See Rule 12(c), (f), Fed.R.Civ.P.

Aetna’s motion is based on three primary arguments. First, Aetna maintains that Rule 32 of the Montana Rules of Appellate Procedure grants the Montana Supreme Court exclusive jurisdiction to determine the merit of an appeal. Aetna takes the position that this court has no jurisdiction to entertain the question of whether an appeal was taken for delay, for the reason that inconsistent rulings could result in an interference with the province of the state supreme court. Second, Aetna argues that allowing bad faith actions to be premised on the filing of an appeal impinges on a party’s constitutional right of unfettered access to the courts. Finally, Aetna asserts that plaintiff’s claims are without statutory basis because the Montana Unfair Claims Settlement Act, § 33-18-201, M.C.A., does not apply to post-judgment proceedings.

Plaintiff contends in response that the motive behind Aetna’s decision to appeal is but one factor in plaintiff’s bad-faith action, and would merely be presented to the jury as evidence of Aetna’s continuing bad faith throughout the pendency of plaintiff’s claim. Plaintiff further asserts that appellate review is limited to the facts on the trial record and the parties’ arguments within their briefs, whereas a bad-faith action allows the plaintiff to conduct discovery and to inquire into the reasons for the decision to appeal, which reasons are relevant to the good faith or bad faith of Aetna’s actions.

The statutory basis for plaintiff’s action is § 33-18-201, M.C.A., known as the Unfair Claims Settlement Act, which has been part of the Montana Insurance Code since 1977. In pertinent part, § 33-18-201 provides:

No person may, with such frequency as to indicate a general business practice, do any of the following:
******
(6) neglect to attempt in good faith to effectuate prompt, fair, and equitable settlements of claims in which liability has become reasonably clear;
******
(11) make known to insureds or claimants a policy of appealing from arbitration awards in favor of insureds or claimants for the purpose of compelling them to accept settlements or compromises less than the amount awarded in arbitration;
******

This section has been construed as creating a private cause of action for insureds and claimants alike; the Supreme Court of Montana has held that under § 33-18-201, “an insurer has an obligation to claimants as well as insureds where unfair trade practices are concerned,” and that when such an obligation is breached the claimant has the basis for a civil action. Klaudt v. Flink, — Mont. —, 658 P.2d 1065, 1067 (1983). The court further held that such an action may be filed and tried before, concurrent with, or after the insured’s liability to the claimant has been determined. Id. The court noted that an action against the insurer for violation of the insurance code is simply an action to determine whether or not the insurer violated its duty of fair dealing in settlement negotiations, and involves different issues than those raised in the underlying tort action.

Klaudt v. Flink represents one step in the development in Montana law of an “implied covenant of good faith and fair dealing.” This duty to deal in good faith has been applied not only to the insurance arena, see Lipinski v. Title Ins. Co., 202 Mont. 1, 655 P.2d 970 (1982), but also to employer-employee relations, Gates v. Life of Montana, — Mont. —, 668 P.2d 213 (1983) , Dare v. Montana Petroleum Marketing Co., — Mont. —, 687 P.2d 1015 (1984) ; to banking institutions dealing with customers, First National Bank of Libby v. Twombly, — Mont. —, 689 P.2d 1226 (1984), Tribby v. Northwest Bank of Great Falls, — Mont. —, 704 P.2d 409 (1985); to a health service corporation’s dealings with its members, Weber v. Blue Cross of Montana, 196 Mont. 454, 643 P.2d 198 (1982); and to fee arrangements between a lawyer and his client, Morse v. Espeland, — Mont. —, 696 P.2d 428 (1985). In the most recent development, the Montana Supreme Court upheld the application of the implied covenant to a breach of contract between two parties of substantially equal bargaining power, although the court declined to extend the breach of implied covenant to all contract breaches as a matter of law. Nicholson v. United Pacific Ins. Co., — Mont. —, 710 P.2d 1342 (1985).

The court stated in Nicholson that the implied covenant of good faith and fair dealing is not an obligation arising from a contract, but rather gives rise to a tort resulting from its breach which “depends on some impermissible activity.” Id., at -. The court held that “[t]he nature and extent of an implied covenant of good faith and fair dealing is measured in a particular contract by the justifiable expectations of the parties.” Id., at-. Nicholson, while not directly applicable to the present case, demonstrates the broad view which the Montana Supreme Court has taken of the tort of bad faith.

Aetna argues that bad faith in the insurance context consists exclusively of the actions enumerated in § 33-18-201, M.C.A., and that no other claims may be stated against the insurer. One division of this court has so held. Marzolf v. Hoover, 596 F.Supp. 596 (D.Mont.1984). The Supreme Court of Montana, in first-party situations, has held that insurance companies have a duty of good faith which exists independent of the insurance contract and independent of statute. Lipinski v. Title Ins. Co., supra., 655 P.2d at 977. Lipinski was reaffirmed in Birkenbuel v. Montana State Comp. Ins. Fund, — Mont. —, 687 P.2d 700, 702 (1984), where the court held: “Bad faith in claims settlement is an actionable tort independent of the insurance code.” This rule has not expressly been extended to third-party actions, and I find it unnecessary to do so in this case.

While one may question how the Montana court got where it did from where it began, no one can take issue with its arrival. See Tribby, supra, 704 P.2d at 419 (discussing Twombly, supra.); See also, Gates, supra., 668 P.2d at 220 (Gulbrandson, J., dissenting), and 668 P.2d at 221 (Weber, J., dissenting).

In this case, the tort of bad faith allegedly occurred during four separate phases of the malpractice action; 1) prior to any action being filed regarding the negligence of Aetna’s insureds; 2) after the filing of the state tort action; 3) during the litigation of that action; and 4) after a judicial determination of liability. Each alleged phase constitutes one element of the tort. In order to successfully maintain this action, plaintiff must show the lack of good faith in settlement negotiations to be a general business practice employed by Aetna. Under Klaudt v. Flink, supra., plaintiff may demonstrate a frequent business practice by showing “multiple violations occurring in the same claim.” Id., 658 P.2d at 1068. Evidence that an appeal was taken in bad faith is neither inconsistent with the general tort principles expressed by the Montana Supreme Court, nor is it inconsistent with the legislative intent expressed in § 33-18-201(6), M.C.A. The statute speaks generally in terms of “claims,” but does not indicate that “claim” is to be given anything but its ordinary meaning, which includes “cause of action.”

Aetna’s jurisdictional argument fails for the same reasons. Section 33-18-201 would be stripped of its effectiveness if it did not allow the court to consider all stages of the negotiation and litigation process. Appeal is but one part of that process. Rule 32, M.R.App.P., does not alter this conclusion; it merely gives the Montana Supreme Court authority to award “proper” damages if it “is satisfied from the record and the presentation of the appeal” that the appeal was taken for purposes of delay only. This rule does not deprive a trial court, state or federal, of jurisdiction to consider the motive behind a decision to appeal as one factor in a claim for bad faith against an insurance company. At the appellate level, the decision that an appeal is frivolous is based purely on the trial record and on the appellate briefs and arguments. In a bad faith action, it becomes a question for the jury, to be considered in view of all of the plaintiff’s evidence of the insurer’s conduct in negotiations from start to finish. Of course, if there is sufficient evidence to show a good-faith basis for the appeal as a matter of law, an appropriate motion for directed verdict may be entertained. See, St. Paul Fire & Marine Ins. Co. v. Cumiskey, — Mont. —, 665 P.2d 223 (1983).

Similarly, Aetna’s position that plaintiff’s claims constitute a “chilling effect” on Aetna’s right of access to the courts is without merit. Parties to a state suit in Montana are free to appeal an adverse decision to the state supreme court; review is not discretionary. In this case, the subject matter of Aetna’s appeal was the underlying malpractice action, and the issue concerned the proper standard of causation. The subject matter of the instant action is the conduct of Aetna throughout the pendency of plaintiff’s malpractice claim — prior to, during, and after trial. The issue of Aetna’s bad faith in claims settlement practices is a jury question, and the jury should consider all the facts of the case in reaching its verdict. Montana has enacted a broad legislative scheme for the regulation of insurance companies in accordance with federal law and with the Montana Constitution. See, 15 U.S.C. § 1012(a); Mont. Const. Art. XIII, § 1(2) (1972). It is not unconstitutional for this Court to hold insurance companies to the standards imposed by the state.

Defendant’s motion is DENIED.


text:
    UNITED STATES of America, Plaintiff, v. Richard Angelo CALABRESE, Carol Ann Calabrese, and Terry A. Logan, Defendants.
    No. CR 84-12-BU-CCL.
    United States District Court, D. Montana, Butte Division.
    Jan. 9, 1986.
    See also, 613 F.Supp. 1227.
    James Seykora, Robert Zimmerman, Asst. U.S. Attys., Billings, Mont., for plaintiff.
    Charles F. Moses, Moses Law Firm, Billings, Mont., Gregory A. Jackson, Jackson Law Firm, Helena, Mont., John P. Atkins, Bryan & Atkins, Bozeman, Mont., for defendants.
   MEMORANDUM AND ORDER

LOVELL, District Judge.

Defendants Richard and Carol Calabrese move for judicial determination of the range of sentences that could be applied in this case. Specifically, they contend application of the Comprehensive Crime Control Act of 1984 to them would violate the ex post facto clause, Article I, Section 9, of the Constitution.

BACKGROUND

The Calabrese defendants were charged with conspiring to manufacture and distribute methamphetamine, 21 U.S.C. § 846, and with knowingly and intentionally manufacturing or distributing methamphetamine, 21 U.S.C. § 841(a)(1). They were tried before a jury and convicted of the conspiracy offense. The period of such conspiracy, as alleged in the superseding indictment filed on September 4, 1985, was from October 1982 to November 2, 1984.

On October 12, 1984, the President signed into law the continuing appropriations resolution, Public Law No. 98-473, 98 Stat. 1837. Title II of that Public Law is the Comprehensive Crime Control Act of 1984. As the Act contains no effective date, it is clear that it became effective on October 12, 1984, the date of enactment. See United States v. Clizer, 464 F.2d 121 (9th Cir.1972), cert. denied, 409 U.S. 1086, 93 S.Ct. 697, 34 L.Ed.2d 673; United States v. Gavrilovic, 551 F.2d 1099 (8th Cir.1977).

As part of the 1984 revision of the criminal code, the maximum penalties for conspiracy to manufacture or distribute methamphetamine, a Schedule II controlled substance, were amended from imprisonment for a term of five years or a fine of $15,-000, or both, to imprisonment for a term of 15 years or a fine of $125,000, or both. 21 U.S.C. §§ 846, 841(b)(1)(B).

DISCUSSION

Article I, Section 9 of the United States Constitution prohibits Congress from passing any “ex post facto” law. This clause was adopted to protect an individual’s right to fair notice when the government changes “that conduct which will give rise to criminal penalties,” Marks v. United States, 430 U.S. 188, 191, 97 S.Ct. 990, 992, 51 L.Ed.2d 260 (1977); or “increases punishment beyond what was prescribed when the crime was consummated,” Weaver v. Graham, 450 U.S. 24, 30, 101 S.Ct. 960, 965, 67 L.Ed.2d 17 (1981).

The federal courts recognize that two critical elements must be present for a criminal or penal law to be ex post facto: (1) it must be retrospective, that is, it must apply to events occurring before enactment of the law; and (2) it must disadvantage the offender affected by application of the law. Weaver, 450 U.S. at 29, 101 S.Ct. at 964. There can be no question that the increased punishment provided in the Comprehensive Crime Control Act of 1984 for the offense of which the Calabrese defendants were convicted works to defendants’ disadvantage. Thus, the issue in the instant case is whether application of the increased penalties would be retrospective.

The question before the Court, therefore, is whether the conspiracy charged against the Calabrese defendants, which commenced prior to the October 12, 1984 amendment increasing the punishment, continued beyond the date of the amendment. Count I of the superseding indictment alleges that the conspiracy continued until November 2, 1984, some three weeks after enactment of the Comprehensive Crime Control Act of 1984. The jury verdict on Count I represents a finding of fact the conspiracy was committed as alleged. The Court concludes, therefore, that the October 12, 1984 amendment of 21 U.S.C. §§ 846, 841(b)(1)(B) increasing the maximum penalties for conspiracy to manufacture or distribute methamphetamine is applicable to the convictions of the Calabrese defendants. The Court’s conclusion is consistent with the approach taken by the Ninth Circuit Court of Appeals in a case involving similar facts. See Leyvas v. United States, 371 F.2d 714, 717-18 (9th Cir.1967).

For these reasons, the Court determines that application in this case of the increased penalties set forth in the Comprehensive Crime Control Act of 1984 would not constitute an ex post facto application of the law.

IT IS SO ORDERED.


author: GENE CARTER, District Judge.

text:
    Robert HUGHES, et al., Plaintiffs, v. K-ROSS BUILDING SUPPLY CENTER, INC., and New Jersey Steel Company, Defendants.
    Civ. No. 84-0401-P.
    United States District Court, D. Maine.
    Jan. 9, 1986.
    William L. Vickerson, Levenson, Levenson & Vickerson, Portland, Me., for plaintiffs.
    Martha Gaythwaite, Harold Friedman, Friedman & Babcock, Portland, Me., for defendant K-Ross Bldg. Supply.
    George Burns, Amerling & Burns, Portland, Me., for defendant N.J. Steel Corp.
   MEMORANDUM AND ORDER DENYING DEFENDANT NEW JERSEY STEEL CORPORATION’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION

GENE CARTER, District Judge.

Defendant New Jersey Steel Company has filed a Motion to Dismiss for Lack of Personal Jurisdiction. In response, Plaintiff Robert Hughes asserts that New Jersey Steel has waived the right to challenge personal jurisdiction and further, that jurisdiction is proper.

A. Waiver

Fed.R.Civ.P. 12(g) requires that a party making a motion under Rule 12 join other available Rule 12 defenses or waive them. It states: “If a party makes a motion under this rule but omits therefrom any defense or objection then available to him which this rule permits to be raised by motion he shall not thereafter make a motion based on the defense or objection so omitted, except (as provided in subdivision (h)(2)).” The defense of lack of jurisdiction over the person is not included in subsection (h)(2). Further, Rule 12(h)(1) states: “A defense of lack of jurisdiction over the person ... is waived (A) if omitted from a motion in the circumstances described in subdivision (g) or (B) if it is neither made by motion under this rule nor included in a responsive pleading____”

Plaintiff asserts that New Jersey Steel waived its personal jurisdiction defense when it filed a Motion for Summary Judgment in this case on November 15, 1985, which New Jersey Steel contended was also based on Fed.R.Civ.P. 12(b)(6). However, Plaintiff omitted from his memorandum that earlier in this litigation Defendant New Jersey Steel filed a motion to dismiss enumerating all its Rule 12(b) defenses and requesting an extension of time of ten days after the Court’s decision on the Motion to Dismiss for failure to state a claim upon which relief may be granted in which to file memoranda in support of New Jersey Steel’s other dismissal theories. This motion was unopposed by the Plaintiff, and was never formally acted on by the Court although, pursuant to Local Rule 19(c), unopposed motions are routinely considered to be granted. Therefore, it is a complex question whether the Defendant can fairly be said to have waived its personal jurisdiction claim. However, the Court need not decide this issue because it is satisfied that it is fair and consistent with due process requirements to exercise jurisdiction over the Defendant New Jersey Steel Company.

B. Jurisdiction

This is a diversity action and, therefore, Maine law governs the question of whether the Defendant is properly subject to the jurisdiction of this Court, although New Hampshire law is applicable to other aspects of the case. Hahn v. Vermont Law School, 698 F.2d 48, 49 (1st Cir.1983). Under Maine law, the limits of personal jurisdiction are coextensive with federal due process requirements. 14 M.R.S.A. § 704-A(l). Architectural Woodcraft Co. v. Bead, 464 A.2d 210, 212 (Me.1983). The United States Supreme Court has prescribed a three-step analysis for determining whether jurisdiction may be asserted consistent with due process:

First, the defendant must have some contact with the forum state; if it does not, due process prohibits the exercise of in personam jurisdiction. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 100 S.Ct. 559, 566, 62 L.Ed.2d 490 (1980). If the defendant has forum contacts, the court must proceed to the second step in its analysis: whether the suit arises out of or is related to defendant’s forum contacts? The answer to this question determines the test to be applied in the third step of the analysis. If the suit arises out of or relates to the defendant’s forum contacts, the critical question becomes whether the relationship among the defendant, the forum and the litigation forms a fair and reasonable foundation for the exercise of jurisdiction over the defendant. But if the cause of action does not arise out of and is not related to the defendant’s forum contacts, the court considers only the relationship between the forum state and the foreign defendant.

Kenerson, et al. v. Stevenson, et al., 604 F.Supp. 792, 794 (1985). See also Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984).

New Jersey Steel concedes that it does some business in Maine and therefore automatic dismissal is not appropriate. Hughes does not argue that the injury alleged arose out of New Jersey Steel’s contacts with Maine, but bases its argument that jurisdiction is proper on general jurisdictional principles.

General jurisdiction exists where “the Defendant engages in the ‘continuous and systematic’ pursuit of general business activities in the forum state.” Glater v. Eli Lilly & Co., 744 F.2d 213, 216 (1st Cir. 1984). In this case, New Jersey Steel has shipped $6,000,000 worth of goods to Maine since January 1, 1980. New Jersey Steel maintains a sales customer list of over twenty Maine businesses across the state to which it sends a schedule every month announcing the availability of its products. A sales representative visits Maine every six weeks to sell New Jersey Steel’s products. These facts evidence a substantial “continuous and systematic” pursuit of general business activities in Maine. See Dynamic Concepts v. Modern Chain Manufacturing Co., Inc., 610 F.Supp. 285, 289 (D.R.I.1985).

Defendant New Jersey Steel asserts that the circumstances of this case are very similar to those of the Glater case in which the Court found that jurisdiction could not be exercised consistent with due process requirements. In Glater, as in this case, the Defendant maintained no office and engaged in no manufacturing in the forum state. Similarly, it held no property there and was not registered to do business there. Its contacts with the forum state consisted of advertising and employing salesmen to solicit orders, which, as the Defendant argues, is very similar to the circumstances of this case.

The Glater Court, however, does not discuss the amount of business which the Defendant was doing in the forum state. This Court is convinced that the Glater Court would not have found that jurisdiction was impermissible under those circumstances if the Defendant in question were conducting business on the scale of New Jersey Steel in the State of Maine.

New Jersey Steel also relies on Jones v. North American Aerodynamics, Inc., 594 F.Supp. 657 (D.Me. 1984). However, in that case the Court found that from 1971 to 1980 the Defendant shipped a total of $2,400 worth of goods into Maine out of a total volume of between 1.5 and 1.7 million dollars, never exceeding $750 per year.

Based on the amount of business the Defendant carries out on a systematic basis in this state, this Court believes it is fair and consistent with due process requirements that New Jersey Steel be subject to the jurisdiction of this Court.

Accordingly, Defendant New Jersey Steel Company’s Motion to Dismiss for Lack of Personal Jurisdiction is hereby DENIED.

So ORDERED.

      . The Court in Glater also emphasized the plaintiffs lack of contacts with the forum state, 744 F.2d at 217, although in Jones v. North American Aerodynamics, Inc., 594 F.Supp. 657, 663 (D.Me. 1984), Judge Cyr concluded that the plaintiff's relationship to the forum is not relevant to a general jurisdiction determination.

      . These statistics covered sales made through the defendant's catalog. The record did not disclose the amount of sales made through advertising in other catalogs.


author: LASKER, District Judge.

text:
    Eddie Lee GORDON, Plaintiff, v. Officer WATLEY, Officer Witsell, Thomas Coughlin, III, Superintendent Harold J. Smith, Superintendent Wilson E.J. Walters, County of Nassau and John and/or Jane Does Nos. 1-20, Defendants.
    No. 81 Civ. 5677 (MEL).
    United States District Court, S.D. New York.
    Jan. 10, 1986.

      Simpson Thacher & Bartlett, New York City, for plaintiff; Mark G. Cunha, Pamela L. Weisberg, of counsel.
    Edward G. McCabe, Co. Atty. of Nassau County, Mineóla, N.Y., for Officer Watley, Officer Witsell, and Nassau County; Michael L. Chartan, Deputy Co. Atty., of counsel.
    Robert Abrams, Atty. Gen. of State of N.Y., New York City, for defendants Coughlin, Smith and Walters; Lillian Z. Cohen, Asst. Atty. Gen., of counsel.
   LASKER, District Judge.

Eddie Lee Gordon sues pursuant to 42 U.S.C. § 1983 (1982) claiming violation of his rights under the fourth, eighth and fourteenth amendments of the United States Constitution, and pursuant to the common law of New York alleging wrongful arrest, seizure, transportation and imprisonment by Charles Watley, Nathaniel Witsell and Nassau County (“the Nassau defendants”), by Thomas Coughlin III, Harold J. Smith, and Wilson E.J. Walters (“the state defendants”) and by John and/or Jane Does Nos. 1-20.

The facts giving rise to this action are set out at 601 F.Supp. 1512 (S.D.N.Y.1985). In 1981 Gordon was in Georgia serving concurrent New York and Georgia sentences. The Georgia sentence was a ten-year sentence which required Gordon to serve a maximum of four years in prison and the balance on probation. The New York sentence was an indeterminate sentence with a maximum of five years, to run concurrently with the Georgia sentence. On March 6, 1981, the day Gordon was paroled in Georgia pursuant to the Georgia sentence (under which he had served two years), Watley and Witsell, in their capacities as Nassau County correctional officers, arrested Gordon and transported him to New York. The Nassau defendants acted according to a commitment order that Nassau County had filed with Georgia prison officials as a detainer to ensure that New York would be notified if Gordon were released prior to completing the minimum period of imprisonment on the New York sentence.

Once in New York State, Gordon was incarcerated for approximately eight months pursuant to the New York commitment order, which stated on its face that he had received an indeterminate sentence of “none” to five years to run concurrently with the Georgia sentence. Gordon met with the New York Parole Board on May 12, 1981, and again on August 5, 1981, at which time he was granted parole effective on or after October 14, 1981. He was released on October 26, 1981 because he had reached his conditional release date.

After Gordon filed this action, the state defendants moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a legally sufficient claim. The motion was treated as a motion for summary judgment and was denied without prejudice to renewal on an amplified record because significant issues of fact were unresolved, including: the intention of the sentencing judge as to the minimum sentence imposed, the facial validity of the commitment order, and whether the defendants “should have known that the [commitment] order on its face barred imprisonment in New York.” Gordon v. Watley, 601 F.Supp. 1512, 1516 (S.D.N.Y.1985). The Nassau defendants moved for summary judgment on the ground that they acted in good faith. This motion was also denied without prejudice to renewal on a sufficient record. Id. at 1517.

Three motions are now before the court: 1) the state defendants’ motion to reargue the summary judgment motion; 2) Gordon’s motion for partial summary judgment against all defendants on the issue of liability; and 3) the Nassau defendants’ cross-motion for summary judgment.

Gordon moves for partial summary judgment against all defendants on the issue of liability. He contends that the basic facts surrounding his seizure, arrest, transportation and imprisonment are uncontested, that his seizure, arrest and imprisonment were unlawful under the sentencing statutes and case law in effect at the time, and that the defendants had a duty to determine that the commitment order they followed was invalid.

The state defendants oppose Gordon’s motion and argue that they are entitled to summary judgment on the grounds that Gordon has failed to demonstrate 1) that a material issue of fact exists regarding Gordon’s minimum sentence and 2) that the state defendants were precluded from imprisoning Gordon based on the commitment order. Their submissions in opposition to Gordon’s motion for partial summary judgment are considered a cross-motion for summary judgment.

The Nassau defendants cross-move for summary judgment on the grounds that 1) Gordon was properly arrested, transported and imprisoned in New York; 2) there is no Section 1983 violation because the commitment order is valid on its face and there is no obligation to go beyond the plain language of a facially valid order; and 3) assuming, arguendo, that a Section 1983 violation is found, Watley and Witsell are not liable because they acted in good faith.

The parties agree that a New York sentence may be served in a correctional facility outside New York State when the New York court orders the sentence to run concurrently with a sentence previously imposed by a sister jurisdiction. See N.Y.Penal Law §§ 70.25(4), 70.20(3), 70.30(2-a) (McKinney Supp.1984); Hechtman, Sup plementary Practice Commentaries 1975 to N.Y.Penal Law § 70.20 (McKinney Supp. 1984) at 226.

Gordon contends that § 70.30(l)(a), as construed in People v. Thompson, 87 Misc.2d 302, 384 N.Y.S.2d 974 (Sup.Ct., Erie County 1976), governs the calculation of his sentence. In Thompson the defendant was serving a fifteen-year sentence in Virginia when he received a 0-4 sentence in New York to run concurrently with the Virginia sentence. When the Virginia authorities granted Thompson parole, the New York authorities sought to have him returned to New York. Thompson sought a declaratory judgment that the grant of parole by Virginia authorities was binding upon the New York authorities. In granting Thompson’s declaratory judgment motion based on its construction of Section 70.30(l)(a), the court stated:

Once the minimum period of imprisonment had been satisfied under New York law, where, by law, the shorter sentence merges in the longer one, parole should be left to the applicable rules of the correction board of the state where said longer term is being served. The defendant having been committed to the Virginia facility to serve his time, the New York Department of Correction should have no superior control over his parole.
If the Virginia Parole Board has determined that despite the additional concurrent sentence there is a reasonable probability that the defendant can live at liberty without violating the law, the New York Department of Correction should have no greater interest.

Id. at 306, 384 N.Y.S.2d at 977-978 (emphasis added). Gordon argues that Thompson governs here. He maintains that his shorter New York term merged into his longer Georgia term and that his New York sentence was satisfied when the Georgia sentence in its entirety was discharged in-Georgia. (Memorandum of Plaintiff in Support of Motion for Partial Summary Judgment at 8-9.) Gordon interprets Thompson to mean that New York must in this case be considered to have relinquished any jurisdiction it had over Gordon once it sent him back to Georgia to serve out the longer of his concurrent sentences and, that as a result, New York lacked jurisdiction to determine whether Gordon’s sentence should be completed in prison, on probation or on parole. {Id. at 9.) It follows, according to Gordon, that the Nassau defendants were barred from seizing, arresting and transporting him to New York, and that the state defendants were barred from imprisoning him there.

Gordon emphasizes that this theory of exclusive jurisdiction obviates the need to decide whether the minimum period of imprisonment was set by the sentencing judge at zero years or whether no minimum term was set, with the minimum required by law to be determined by the state board of parole. (Plaintiff’s Reply Memorandum of Law in Further Support of Motion for Partial Summary Judgment at 8-9.) He maintains, nonetheless, that Penal Law § 70.00(3)(b) authorized the court to set a minimum of less than one year, and that in this case the court did in fact set a zero year minimum. (Id. at 9.)

For the reasons explained below, Gordon’s motion for summary judgment is denied and summary judgment is granted as to the state and Nassau defendants.

At the time of Gordon’s New York sentence, a New York court could either fix the minimum period of imprisonment itself or leave that determination to the state board of parole. See N.Y.Penal Law § 70.00(3) (McKinney 1975). In the event that the court fixed the minimum period, it was required to “set forth in the record the reasons for its action.” Id; see People v. Britt, 52 A.D.2d 811, 383 N.Y.S.2d 602 (1st Dept.1976), reversed on other grounds, 43 N.Y.2d 111, 400 N.Y.S.2d 785, 371 N.E.2d 504 (1977). In addition, the minimum period of imprisonment, regardless of whether it was fixed by the court or the parole board, was required to be for at least one year. N.Y.Penal Law § 70.00(3) (McKinney 1975). Based upon the transcript of the sentencing hearing and a letter from the sentencing judge’s law secretary in response to an inquiry by Gordon’s attorney, it is clear that the court did not exercise its option to fix the minimum period of imprisonment; instead, it left the matter to the determination of the parole board. Moreover, the judge’s failure to specify any reasons for setting 'a minimum and his setting a “none” year minimum, which would both constitute impermissible deviations from the statutory requirement, strongly support the conclusion that the judge intended to leave the decision to the parole board. Thus, no minimum sentence was ever fixed by the sentencing court.

Gordon’s reliance on Thompson is misplaced because the Thompson court explicitly assumed that the minimum period of imprisonment on the New York sentence had already been met by time served in prison in the sister state. See Thompson, 87 Misc.2d at 306, 384 N.Y.S.2d at 977-978. Thompson would control the disposition of this case in the event that Gordon’s minimum period of imprisonment were found to be “none” years. However, as already stated, the court did not set a minimum period of imprisonment of “none” years in this case.

When the New York sentencing judge has not set a minimum sentence, the parole board determines the minimum. The board does so only after a personal interview with the prisoner, and the board is required to meet with the person only after that person has been received in a correctional facility under the jurisdiction of the state. N.Y.Exec.Law § 259-i(l)(a) (McKinney 1982). After sentencing in New York, Gordon was immediately returned to Georgia. Inasmuch as the parole board had not met with him up to that point, all that could be known was that the minimum sentence was at least one year and could possibly be as long as the maximum New York sentence. See Russo v. New York State Board of Parole, 50 N.Y.2d 69, 427 N.Y.S.2d 982, 405 N.E.2d 225 (1980). Without a fixed and ascertained minimum period of imprisonment for the New York sentence, Gordon’s release from the Georgia prison at any point sooner than five years — his theoretical maximum under the New York sentence — could have meant that he had been released prior to having served the New York minimum.

Persons like Gordon who are sentenced to concurrent sentences may face a situation where they cannot know when they will have served the minimum on both sentences because they will not have met with the New York State Board of Parole, and they cannot meet with the parole board until they have been received in a correctional facility over which the state has jurisdiction. See N.Y.Exec.Law § 259 — i (McKinney 1982). Without knowing the minimum period of imprisonment on both sentences, they cannot calculate when they will have served that minimum and be eligible for parole in the sister jurisdiction. See N.Y.Penal Law § 70.40(l)(a) (McKinney 1984). Thus, under the statutory scheme, persons like Gordon must be returned to a New York department of correctional services facility in order to have a minimum period of imprisonment set on the New York sentence if they are discharged prior to serving their greatest possible minimum period of imprisonment under the New York sentence.

Consequently, inasmuch as Gordon’s minimum period of imprisonment under his New York sentence had not been set prior to the time he was paroled by the Georgia authorities and his greatest possible minimum term had not been served, the state defendants did not act unlawfully under the applicable New York statutes in imprisoning Gordon after March 6, 1981. Similarly, the Nassau defendants, acting pursuant to a detainer which contained no indication that a minimum New York sentence had been fixed, properly returned Gordon to New York State, where he was received in a department of correctional services facility.

The state defendants’ motion to reargue is denied. Gordon’s motion for partial summary judgment is denied, and summary judgment granted as to the state and Nassau defendants. The complaint is dismissed.

It is so ordered.

      . The state law claims asserted against the state defendants were dismissed pursuant to Fed.R. Civ.P. 12(b)(1) for lack of subject matter jurisdiction on the ground that they were barred by the eleventh amendment, as recently interpreted by the Supreme Court in Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984).

      . The state defendants move to reargue the summary judgment motion pursuant to Rule 3(j) of the Civil Rules of the District Court for the Southern District of New York. Because summary judgment is here granted as to all defendants, the motion to reargue the summary judgment motion is moot. Accordingly, the state defendants’ motion to reargue is denied.

      . While the state defendants have not formally cross-moved for summary judgment, they have in effect done so inasmuch as they have submitted a memorandum of law and additional affidavits supporting their position. These submissions are therefore properly treated as a cross-motion for summary judgment.

      . Section 70.25(4) provides in relevant part:
      When a person, who is subject to any undischarged term of imprisonment imposed at a previous time by a court of another jurisdiction, is sentenced to an additional term or terms of imprisonment by a court of this state, the sentence or sentences imposed by the court of this state, ... shall run either concurrently or consecutively with respect to such undischarged term in such manner as the court directs at the time of sentence. If the court of this state does not specify the manner in which a sentence imposed by it is to run, the sentence or sentences shall run consecutively.
      N.Y.Penal Law § 70.25(4) (McKinney Supp. 1984). Section 70.20(3) provides in relevant part:
      When a defendant who is subject to an undischarged term of imprisonment, imposed at a previous time by a court of another jurisdiction, is sentenced to an additional term or terms of imprisonment by a court of this state to run concurrently with such undischarged term, as provided in subdivision four of section 70.25, the return of the defendant to the custody of the appropriate official of the other jurisdiction shall be deemed a commitment for such portion of the term or terms of the sentence imposed by the court of this state as shall not exceed the said undischarged term. The defendant shall be committed to the custody of the state department of correctional services if the additional term or terms are indeterminate ... for such portion of the term or terms of the sentence imposed as shall exceed such undischarged term or until released in accordance with law....

        N.Y.Penal Law § 70.20(3) (McKinney Supp. 1984). Section 70.30(2-a) provides in relevant part:
      Where a person who is subject to an undischarged term of imprisonment imposed at a previous time by a court of another jurisdiction is sentenced to an additional term or terms of imprisonment by a court of this state, to run concurrently with such undischarged term, such additional term or terms shall be deemed to commence when the said person is returned to the custody of the appropriate official of such other jurisdiction where the undischarged term of imprisonment is being served____ The term or terms of such imprisonment shall be calculated and such other pertinent provisions of this section applied in the same manner as where a person is under more than one sentence in this state as provided in this section.
      N.Y.Penal Law § 70.30(2-a) (McKinney Supp. 1984).

      . Hechtman explains:
      Subdivision 3 [of Penal Law § 70.20] was added, in conjunction with new subdivision 4 of § 70.25 and subdivision 2-a of § 70.30 (L.1975, c. 782), to fill what was perceived as a gap in the sentencing structure. Simply stated, the new law authorizes a sentence of imprisonment imposed by a New York court to run concurrently with an undischarged term of a sentence previously imposed by a federal court or by one of a sister state, and to be served in a correctional facility outside New York State. Until now the law that prescribed whether multiple sentences of imprisonment, imposed on a person either at the same time or at different times, were to be served consecutively or concurrently, applied only when all the sentences involved were imposed by New York courts (§§ 70.25(1), 70.30(1). Where a sentence of imprisonment was imposed in a New York conviction, on a defendant who was already subject to an undischarged term of imprisonment in a foreign jurisdiction, the New York sentence, perforce, could not commence running until the undischarged foreign term was completed.
      Hechtman, Supplementary Practice Commentaries 1975 to N.Y.Penal Law § 70.20 (McKinney Supp.1984) at 226.

      . Section 70.30(l)(a) provides:
      1. Indeterminate sentences. An indeterminate sentence of imprisonment commences when the prisoner is received in an institution under the jurisdiction of the state department of correctional services. Where a person is under more than one indeterminate sentence, the sentences shall be calculated as follows: (a) If the sentences run concurrently, the time served under imprisonment on any of the sentences shall be credited against the minimum periods of all the concurrent sentences, and the maximum terms merge in and are satisfied by discharge of the term which has the longest unexpired time to run____
      N.Y.Penal Law § 70.30(l)(a) (McKinney Supp. 1984).

      . Section 70.00(3)(b) provides in relevant part:
      3. Minimum period of imprisonment. The minimum period of imprisonment under an indeterminate sentence shall be at least one year ...:
      (b) Where the sentence is for a ... class D felony ... the court may fix the minimum period. In such event, the minimum period shall be specified in the sentence and shall not be more than one-third of the maximum term imposed. When the minimum period of imprisonment is fixed pursuant to this paragraph, the court shall set forth in the record the reasons for its action____
      N.Y.Penal Law § 70.00(3)(b) (McKinney 1975).

      . Gordon also argues that the state department of correctional services Manual for Inmate Records Coordinators, on which the state defendants rely, conflicts with state law as construed in Thompson and, in any event, is irrelevant because New York lacked the jurisdiction to apply the guidelines contained therein. In reaching a decision on the instant motions, we have found it unnecessary to consider the guidelines proffered by defendants.

      . Section 70.00(3)(c) covers the situation in which the sentencing court does not fix the minimum period of imprisonment:
      (c) In any other case, the minimum period of imprisonment shall be fixed by the state board of parole in accordance with the provisions of the correction law.
      N.Y.Penal Law § 70.00(3)(c) (McKinney 1975).

      . Because we find Section 70.00(3) unambiguous on its face, we do not address the parties' arguments as to the significance of subsequent legislative enactments for the construction of the statute.


text:
    Robert CAMARANO, Plaintiff, v. The CITY OF NEW YORK, Kenny Graham, New York City Police Officer, Kristine Hamann, Assistant District Attorney, Defendants.
    No. 82 Civ. 4418(MEL).
    United States District Court, S.D. New York.
    Jan. 10, 1986.
    As Amended March 25,1986.

      Donovan Leisure Newton & Irvine, New York City (John H. Walsh, of counsel), for plaintiff.
    Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City (Evelyn Jonas, Asst. Corp. Counsel, of counsel), for defendants.
   LASKER, District Judge.

In this Section 1983 action Camarano, who until recently was a pro se litigant, asserts claims against the City of New York and Kenny Graham alleging “the use of excessive force in Camarano’s arrest of February 9, 1982, and ... that Camarano has been unlawfully deprived of his liberty in that criminal proceedings were instituted against him based upon a coerced confession and in the absence of probable cause for his arrest.” Camarano v. The City of New York, 577 F.Supp. 18, 19 (S.D.N.Y. 1984).

Subsequent to the filing of his complaint in this action Camarano was tried and convicted in New York State Supreme Court for weapons possession. Thereafter, the defendants moved (1) to amend their complaint to assert as a defense that the res judicata/collateral estoppel effect of the state criminal conviction precluded some of Camarano’s claims; (2) for summary judgment on the same grounds; and (3) to dismiss the complaint as to the City for failure to state a claim since the complaint contained no allegation that Graham acted pursuant to City policy. On January 10, 1984 the City’s motion was granted and the complaint against it was dismissed. See id. In addition, summary judgment (1) was granted as to the voluntariness of Camarano’s confession on the ground that the issue was barred by collateral estoppel since it had been litigated in the state criminal trial; (2) was denied with respect to the claim of excessive force since the trial judge specifically had precluded as irrelevant evidence of alleged brutality; and (3) was denied without prejudice to renewal on a fuller record as to the issue of probable cause because the record was inadequate to determine whether probable cause was raised and litigated in the Supreme Court. Id. at 19-20.

Following the January 1984 decision Camarano moved to reargue the defendants’ motion or in the alternative for permission to file an interlocutory appeal. He then filed an amended complaint which, among other things, re-stated his claim against the City. Although Camarano failed properly to move to amend his complaint pursuant to Federal Rule of Civil Procedure 15(a), defendants, believing that Camarano’s amended complaint rendered moot his motion for reargument or to take an interlocutory appeal, consented to the filing of the proposed amended complaint.

The City of New York and police officer Kenny Graham now move to dismiss Camarano’s amended complaint on the grounds (1) that the amended complaint still fails to state a claim against the City; (2) that the amended complaint fails to state an actionable claim of excessive force; and (3) that in light of the recent decision in Migra v. Warren School District Board of Education, 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984), the state criminal conviction for weapons possession bars relitigation of the claim of unlawful arrest without probable cause.

A.

Defendants again seek dismissal of the claims against the City based on Monell v. Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), asserting that the amended complaint fails to allege a specific city policy or custom.

Camarano’s amended complaint alleges that “Graham’s^ ability to confine plaintiff for three days in a controlled and coercive environment” and the “municipality’s deliberate indifference to a practice created by its employees” are sufficient to infer a de facto policy upon which liability could be established. He adds that if his amended complaint against the City is dismissed, it should be dismissed without prejudice to amendment of the complaint to name as John Doe defendants other police officers and employees responsible for mistreatment of plaintiff.

In City of Oklahoma City v. Tuttle, — U.S. -, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985), reversible error was found because the district court’s charge to the jury permitted the jury to infer that a single, unusually excessive use of force was attributable to inadequate supervision amounting to deliberate indifference on the part of the city officials. The Court held that under Monell a single instance of unconstitutional activity by a city employee was insufficient to impose civil rights liability on the city unless there was proof that the employee’s actions were undertaken pursuant to a policy attributed to a municipal policymaker.

Here, as in Tuttle, no city policymaker is charged with unconstitutional activity. Camarano’s allegation of a single instance of mistreatment by a police officer, a three-day confinement, is insufficient to establish an unconstitutional municipal policy attributed to a municipal policymaker. Further, Camarano’s conclusory allegation that the city showed “deliberate indifference to a practice created by its employees” does not render the complaint sufficient without factual support. Accordingly, the complaint against the City is dismissed.

B.

Defendants contend that Camarano’s civil rights claim of illegal arrest and search should be dismissed because they are barred by the collateral estoppel effect of the state criminal trial proceedings.

Plaintiff denies that the issues were litigated and decided in the prior proceeding.

A federal court must give a state court judgment the same preclusive effect as would be given under the law of the state in which judgment was rendered. Migra v. Warren School District Board of Education, 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984) (civil judgment); Haring v. Prosise, 462 U.S. 306, 103 S.Ct. 2368, 76 L.Ed.2d 595 (1983) (criminal judgment). Under New York law, two requirements must be met before collateral estoppel may be invoked: “There must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and, second, there must have been a full and fair opportunity to contest the decision now said to be controlling.” Schwartz v. Public Admin. of Co. of Bronx, 24 N.Y.2d 65, 71, 298 N.Y.S.2d 955, 960, 246 N.E.2d 725 (1969). Collateral estoppel does not bar litigation of issues not previously raised, but it does foreclose issues which were necessarily decided in the first action, either by actual determination or necessary implication. Chisholm-Ryder Co., Inc. v. Sommer & Sommer, 78 A.D.2d 143, 144, 434 N.Y.S.2d 70, 72 (4th Dept.1980).

Camarano does not dispute the theory that a subsequent conviction precludes re-litigating the legality of the underlying arrest. However, he argues that that proposition is not controlling here because at the time of his allegedly unlawful arrest he was charged with robbery but his subsequent conviction was for illegal weapons possession, the robbery charges having been dropped some time after his arrest.

In reply to Camarano’s assertion, the defendants have submitted an arrest report from which it appears that when he was arrested Camarano was charged with both illegal weapons possession and robbery. Upon these facts collateral estoppel would bar Camarano’s claim for unlawful arrest. Alexander v. City of Peekskill, 80 A.D.2d 626, 436 N.Y.S.2d 327 (2d Dept. 1981). However, as plaintiff correctly points out, the arrest report is outside the pleadings and therefore may not properly be considered on a motion to dismiss. Accordingly, pursuant to FED.R.CIV.P. 12(b) the parties are put on notice that the motion to dismiss the claim for unlawful arrest “shall be treated as one for summary judgment and disposed of as provided in Rule 56." Moreover, summary judgment will be entered for the defendants unless within thirty days of the filing of this Memorandum Camarano presents pertinent material which raises a genuine issue.

Camarano maintains that he is not precluded from asserting his claim for unlawful search because the only issue relating to the legality of the search that was litigated in the state court was whether he had standing to assert a fourth amendment violation (since he was merely a passenger in the car that the weapons were found in). The argument is without merit. A determination that Camarano lacked standing is tantamount to an adjudication that Camarano’s constitutional rights were not violated. Moreover, without the requisite standing, Camarano could no more assert a fourth amendment claim in this court than he could in state court. Accordingly, the claim alleging an unlawful search is dismissed. See Palma v. Powers, 295 F.Supp. 924, 934-35 (N.D.Ill.1969).

C.

Relying solely on the allegations of the amended complaint, defendants maintain that Camarano’s claim of excessive force should be dismissed since Graham followed proper police procedure for the application of force. Camarano answers that when read together, the consolidated allegations are sufficient to state a claim.

Apparently viewing the amended complaint as supplemental, Camarano did not repeat in his later filing the allegations set forth in the original complaint. Although the amended complaint states only that “Graham’s weapon was drawn even before a chase began”, Amended Complaint at 1111, the original complaint alleges that “plaintiff was thrown to the ground, beaten, kicked and held over the highway median.” Complaint at ¶ 10.

Since pro se civil rights complaints should be read “with ... generosity,” Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.) cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973), Camarano’s complaint must be given the benefit of incorporation. Clearly, the consolidated allegations state a cause of action for excessive force. However, since Camarano is now represented by counsel, counsel is instructed to file an amended complaint consolidating, but not exceeding the allegations contained in the two pleadings and to do so within thirty days.

Conclusion

For the foregoing reasons defendants’ motion to dismiss the amended complaint against the City is granted. The claims against Graham for unlawful arrest will be dismissed and summary judgment will be entered unless within thirty days Camarano files pertinent material pursuant to FED.R.CIV.P. 56. The claim for illegal search is dismissed. Defendants’ motion to dismiss the cause of action for excessive force is denied.

It is so ordered.

      . An earlier complaint also named as a defendant Kristine Hamann, Assistant District Attorney. Ms. Hamann was dismissed from the complaint based on prosecutorial immunity. Camarano v. The City of New York, 577 F.Supp. 18, 19 (S.D.N.Y.1984). Accordingly, she is dismissed from the amended complaint.

      . Camarano again argues that his confession was involuntary and coerced. For the reasons set forth in our earlier opinion, id., the claim is dismissed.

      . Camarano suggests that if the claim against the City is dismissed he should be allowed to amend his complaint to name as John Doe defendants the unknown police officers and other employees and agents responsible for his interrogation and mistreatment. This request is not considered since Camarano has failed properly to move to amend his complaint pursuant to FED.R.CIV.P. 15(a).

      . Camarano also argues that he preserved his federal claims in accordance with England v. Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1963). However, England, a decision concerning federal court abstention, is inapplicable here.

      . See Letter of John H. Walsh, Esq. (Oct. 18, 1985).


author: YOUNG, District Judge.

text:
    Edmund ACKERSON, Plaintiff, v. DENNISON MANUFACTURING CO., Defendant.
    Civ. A. No. 84-364-Y.
    United States District Court, D. Massachusetts.
    Jan. 10, 1986.
    Robert A: Murphy, Casner, Edwards & Roseman, Boston, Mass., for plaintiff.
    Thomas F. Curry,- Needham, Mass., Carol Chandler, Stoneman, Chandler & Miller, Boston, Mass., for defendant.
   MEMORANDUM AND ORDER

YOUNG, District Judge.

The defendant Dennison Manufacturing Company (“Dennison”) terminated the employment of plaintiff, Edmund Ackerson, on July 31, 1982. Mr. Ackerson was 49 years old at the time of his termination.

On October 5, 1982, Mr. Ackerson filed a complaint with the Equal Employment Opportunity Commission (the “Federal Commission”) charging Dennison with age discrimination. Mr. Ackerson alleges that at the time he filed his charge with the Federal Commission he was told that the charge would be forwarded on to the Massachusetts Commission Against Discrimination (the “State Commission”) pursuant to a worksharing agreement between the two commissions. On October 14, 1982, the Federal Commission informed Mr. Ackerson that his charge had been forwarded to the State Commission. On July 1, 1983 the Federal Commission wrote Mr. Ackerson that it would not proceed further with its processing of his age discrimination complaint, but that he could pursue his private right of action in the federal district court. On October 25, 1983, the State Commission informed Mr. Ackerson that it was rejecting his complaint as “untimely” under Section 5 of Mass.Gen.Laws c. 151B.

Mr. Ackerson then filed his complaint in this court alleging violation of the Age Discrimination in Employment Act (Count I), violation of Mass.Gen.Laws c. 151B, § 4 (Count II), wrongful termination — breach of implied covenant (Count III), and wrongful termination — tort (Count IV). After answering the complaint and engaging in limited discovery, Dennison moved to dismiss Counts III and IV and “all claims ... for damages for humiliation and emotional distress.” Judge Zobel, to whom this case originally was assigned, allowed the motion without opinion on August 10, 1984.

On June 19, 1985 Judge Zobel entered a Pretrial Order in this case pursuant to Fed. R.Civ.P. 16. The order states that “the only issues to be tried are:

(a) Whether defendant violated the Age Discrimination in Employment Act____
(b) Whether defendant violated Mass. Gen.Laws c. 151B ...
(c) The amount of plaintiff’s damages. The parties agree that plaintiff is entitled to recover lost wages and fringe benefits, and if he proves a willful violation, liquidated damages under the federal statute. He is entitled to lost wages, fringe benefits and compensation for emotional distress under the state statute____”

Subsequently, the case was transferred to this session. Dennison now moves for clarification of the Pretrial Order and to dismiss Count II for lack of subject matter jurisdiction.

This Court recently reviewed the dual administrative and judicial remedies provided by Mass.Gen.Laws c. 151B, §§ 5 and 9. See Flynn v. New England Telephone Co., 615 F.Supp. 1205 (D.Mass.1985). In Flynn the Court held that failure to file an administrative claim within the six month limitations period of § 5 precluded the complainant from seeking judicial review under § 9. Id. at 1208, 1209. Mr. Ackerson does not now contest the correctness of that ruling. Nor, apparently, does he assert that he filed his complaint with the State Commission within six months of his termination. Rather, he argues for an “equitable” exception to the rule of Flynn. He contends that § 5 is a statute of limitations which can, and should, be “waived” by the court where a plaintiff has timely filed his charge with the Federal Commission and he is assured that the charge will be forwarded on to the State Commission. Dennison argues in response that satisfaction of § 5 is a jurisdictional requirement that cannot be waived.

As an initial matter, the Court notes that it is entirely unclear why the State Commission found Mr. Ackerson’s claim to be untimely. Unless the charge was lost or mishandled en route to the State Commission, or the Federal Commission misrepresented its actions, the charge should have arrived before November 1, 1982, well within six months from the date of Mr. Ackerson’s termination. Nonetheless, Mr. Ackerson evidently did not ask the State Commission for a preliminary hearing to review the finding of untimeliness, as was his right under § 5. Nor does he question in this proceeding the fact that the charge was not timely received by the State Commission. Instead, Mr. Ackerson stands by the argument that his timely filing with the Federal Commission should satisfy the requirements of § 9. When the argument is so framed, this Court must disagree.

The parties have devoted considerable attention to the issue whether the six month filing requirement of § 5 better is characterized as a statute of limitations or a jurisdictional requirement. Upon reflection, the Court rules that proper characterization of the statute’s time bar depends on the stage of the proceedings at which the case is to be viewed. When an individual first considers charging an employer with discrimination, Section Five’s 6 month time limitation for filing a claim with the State Commission serves much the same purposes as a statute of limitations. It ensures that the controversy is adjudicated or conciliated when the matter is fresh in the minds of the parties and witnesses, and it provides the employer with a degree of certainty in knowing when its exposure for terminating an employee is at an end. When a complainant seeks judicial review of a discrimination claim, however, the reasons for requiring satisfaction of § 5 are much different. In that event, the statutory scheme evinces a concern not so much for the timely bringing of claims, as for ensuring that agency action properly is sought as an alternative to judicial process. Viewed from this perspective, the six month limitation period is best characterized as a jurisdictional prerequisite to bringing suit which cannot be waived. Fitzgerald v. New England Telephone and Telegraph, 459 F.Supp. 996, 997 (D.Mass.1978).

Under this analysis, Mr. Ackerson is correct that the six month limitation of Section 5 is waivable, but he is wrong in believing that this Court is the proper place to press his waiver arguments. Because Section 5 presents a limitations period to the State Commission and a jurisdictional requirement to the court, it is only the state agency that can toll the running of the limitations period. Mr. Ackerson should have argued to the State Commission that filing with the Federal Commission tolled the six month limitations period. Had the State Commission ruled that Mr. Ackerson’s claim, although not literally filed within the six month period, was nonetheless “timely” under its rules, the Court would have little trouble holding that Section 9 was satisfied. In this case, Mr. Ackerson took no action at the agency level to appeal the rejection of his claim. He simply proceeded to bring this case in the federal court, characterizing the State Commission’s rejection of his claim as a decision to “take no further action in the matter.” Therefore, this Court is bound by the State Commission’s determination that Mr. Ackerson’s charge was not timely filed.

Accordingly, the motion for summary judgment as to Count II is ALLOWED.

      . Due to the conflict between the August 10, 1984 and the June 19, 1985 orders, the parties now disagree as to whether damages for humiliation and emotional distress are recoverable in this case.

      . Because the parties have presented matters outside the pleadings, the Court will treat the motion to dismiss as one for summary judgment under Fed.R.Civ.P. 56.

      . Indeed, Section 9 requires only that the suit be brought within two years of the alleged unlawful practice.

      . As a general rule, it is within the authority of the State Commission to promulgate rules for calculating when the six month period begins and ends. Cf. Rock v. Massachusetts Commission Against Discrimination, 384 Mass. 198, 205-208, 424 N.E.2d 244 (1981).

      . A question not now before the Court is whether depriving Mr. Ackerson of his chapter 151B claim under these circumstances violates the rule of Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 148, 71 L.Ed.2d 265 (1982) (due process was denied claimant who timely filed his employment discrimination claim, but whose cause of action was barred due to state agency inadvertently delaying claim beyond statute of limitations period). If Mr. Ackerson so desires, he can move for leave to amend the complaint or to add such other parties as are necessary and proper.

      . The Court interprets Judge Zobel’s Pretrial Order to allow damages for emotional distress only under the state statute. Because the state claim is now out of the case, humiliation and emotional distress will not be an element of plaintiffs damages on the remaining federal claim.