author: GONZALEZ, District Judge.

text:
    LOCAL 355, HOTEL, MOTEL, RESTAURANT & HI-RISE EMPLOYEES AND BARTENDERS UNION, AFL-CIO, a labor organization, Plaintiff, v. PIER 66 COMPANY, a foreign corporation, d/b/a “Pier 66”, Defendant.
    No. 84-6652-Civ.
    United States District Court, S.D. Florida, N.D.
    Dec. 14, 1984.

      Christopher D. Robinson, Fisher & Phillips, Fort Lauderdale, Fla., William F. Kaspers, Roger K. Quillen, Fisher & Phillips, Atlanta, Ga., for defendant.
    Joseph H. Kaplan, Richard P. Siwica, Kaplan, Sicking, Hessen, Sugarman, Rosenthal, Susskind, Bloom & DeCastro, Miami, Fla., for plaintiff.
   ORDER

GONZALEZ, District Judge.

THIS CAUSE has come before the Court upon the Motion for Summary Judgment filed on behalf of the defendant. For the reasons set forth below, the Motion will be granted.

The plaintiff, “Union”, contends that the defendant influenced its employees to file a petition with the National Labor Relations Board (“NLRB”) seeking the decertification of the Union as their exclusive bargaining agent. Specifically, the Union asserts that the defendant, its agents, supervisors or those acting on its behalf offered employees monetary inducements as well as promotions, wage increases and free schooling. These alleged bribes constituted violations of section 302(a)(3) of the Labor-Management Relations Act of 1947 (“LMRA”), 29 U.S.C. § 186(a)(3), the federal RICO statute, 18 U.S.C. § 1964, and Florida’s right to work laws. The Union seeks compensatory, treble and punitive damages as well as injunctive relief.

The defendant argues that the allegations presented are merely unfair labor practice claims. By attempting to bring its claims under the guise of various federal criminal statutes, the Union is attempting to circumvent the NLRB’s exclusive jurisdiction over unfair labor practices.

This court agrees.

Additionally, the defendant has raised various arguments attacking the viability of the RICO claim. This court finds that the Union has not sustained the type of injury for which RICO remedies are available.

Section 302(a) of the LMRA provides: It shall be unlawful for any employer or association of employers or any person who acts as a labor relations expert, ad-visor or consultant to an employer or who acts in the interest of an employer to pay, lend, or deliver, or agree to pay, lend, or deliver, any money or other thing of value—
(3) to any employee or group or committee of employees of such employer, employed in an industry affecting commerce in excess of their normal compensation for the purpose of causing such employee or group or committee directly or indirectly to influence an employee in the exercise of the right to organize and bargain collectively through representatives of their own choosing.

An individual who violates section 302 is guilty of a misdemeanor and can be fined a maximum of $10,000, imprisoned for one year or both. 29 U.S.C. § 186(d). Section 302(e) further provides that “[t]he district courts of the United States ... shall have jurisdiction ... to restrain violations of this section.”

The alleged bribes and inducements offered by the defendant in obtaining employee assistance for its decertification effort appear to be within those acts prohibited by section 302(a)(3). If found to be true, however, these same acts also are blatant examples of an unfair labor practice.

Section 8(a) of the National Labor Relations Act (“NLRA”), 29 U.S.C. § 158(a), provides that “[i]t shall be an unfair labor practice for an employer — (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title.” Those rights guaranteed by section 157 include “the right to self-organization, to form, join or assist labor organizations” and to “bargain collectively through representatives of their own choosing.”

The purpose of section 8(a)(1) is to establish the employees’ right to organize themselves for their mutual aid and to do so without interference from employers. Republic Aviation Corp. v. N.L.R.B., 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945). Additionally, section 8(a)(1) proscriptions against unfair labor practices prohibit

not only intrusive threats and promises but also conduct immediately favorable to employees which is undertaken with the express purpose of impinging upon their freedom of choice for or against unionization and is reasonably calculated to have that effect.

N.L.R.B. v. Exchange Parts Co., 375 U.S. 405, 409, 84 S.Ct. 457, 460, 11 L.Ed.2d 435 (1964). See, Chromalloy Min. & Minerals, Etc. v. N.L.R.B., 620 F.2d 1120 (5th Cir. 1980) (employer promise to send employee to special school for training on the eve of union election is an unlawful labor practice.) Further, when an employer instigates and promotes a decertification proceeding and then by means of threats, coercion or promises of economic benefit induces employee support for the decertification proceedings, that employer has committed an unfair labor practice. N.L.R.B. v. Sky Wolf Sales, 470 F.2d 827 (5th Cir.1972); N.L.R.B. v. Birmingham Publishing Co., 262 F.2d 2 (5th Cir.1958). As such claims, furthermore, are arguably subject to section 8 of the NLRA, they thereby are preempted from review by the federal courts owing to the exclusive jurisdiction of the NLRB. San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959).

The United States Supreme Court recently addressed the preemption issue as it pertains to claims arising under section 302(c). In Kaiser Steel Corp v. Mullins, 455 U.S. 72, 83, 102 S.Ct. 851, 859, 70 L.Ed.2d 833 (1982), the Court stated the general preemption rule:

The NLRB is vested with primary jurisdiction to determine what is or is not an unfair labor practice---- [FJederal courts do not have jurisdiction over activity which ‘is arguably subject to § 7 or § 8 of the [NLRA],’ and they ‘must deter to the exclusive competence of the National Labor Relations Board.’ ” San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245 [79 S.Ct. 773, 780, 3 L.Ed.2d 775] ... (1959).

The case sub judice is nothing more than a charge of an unfair labor practice. The defendant allegedly instigated a decertification proceeding and offered sympathetic employees economic inducements for their support. Further, actions taken by the Union prior to the initiation of this present cause reveal that the Union believed that the defendant committed an unfair labor practice. On July 9, 1984, four days before the decertification hearing, the Union filed an unfair labor practice charge against the defendant. The NLRB investigated the charges and found no evidence to support the claim of employer assistance with the decertification effort. The regional director refused to issue a complaint but did advise the Union of its right to appeal that determination. The Union did appeal to the General Counsel. The appeal apparently was denied. The Union now has pending before the NLRB its motion for reconsideration as well as a new charge of unfair labor practices arising from the decertification effort.

The claims presented by the Union fall squarely within those activities that are arguably subject to section 7 or section 8 of the NLRA. Further, continued litigation of this matter would be tantamount to providing the Union with a means of circumventing unfavorable decisions by the NLRB regarding its unfair labor practice claims. This court, therefore, will defer to the expertise of the NLRB.

The court additionally notes that while there is little precedent for determining whether section 302(a)(3) provides civil remedies, those courts addressing the matter have found that this section provides only criminal penalties for violations of its provisions.

[N]othing in the legislative history or in the cases ... indicates that [section 302] was enacted for the purpose of proscribing employer assistance to a decertification drive. While such assistance may violate other federal labor law statutes, such as § 8(a)(2) of the National Labor Relations Act, § 302 was not designed to reach that type of activity. Section 302 is a criminal statute enacted to prevent employers from ‘tampering with the loyalty of union officials and to prevent unions from extorting tribute from employers.’ Alverez [Alvares] v. Erickson, 514 F.2d 156 (9th Cir.1975), cert. denied, 423 U.S. 874 [96 S.Ct. 143, 46 L.Ed.2d 106] (1975).

Oil, Chemical and Atomic Workers Union, etc. v. Chevron, Case No. C82-512V (W.D.Wash., January 13, 1983). Contra, Oil Workers Local 1-1978 v. Standard Oil Co., 112 LRRM 2109 (W.D.Wash.1982).

The Union also maintains that the actions taken by the defendant violate federal RICO laws. A RICO cause of action is available only when a party suffers an “injury in his business or property____” 18 U.S.C. § 1964(c). That injury, however, must cause a proprietary type of damage to the individual’s property or business. See, Bankers Trust Co. v. Rhoades, 741 F.2d 511 (2nd Cir.1984).

The only injuries allegedly suffered by the Union are the attorneys fees and costs incurred by the decertification effort. At most, those injuries are incidental damages and do not rise to the type of proprietary damage for which RICO provides compensation. Thus, the Union fails to state a cause of action under federal RICO law.

Finally, as the federal claims must be dismissed, this court is without jurisdiction to address the merits of the pendent state claims. Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974); United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966).

Accordingly, it is hereby

ORDERED AND ADJUDGED that the Motion to Dismiss filed on behalf of the defendant be, and the same, is GRANTED. This cause is DISMISSED with prejudice.

      . The Motion originally was filed as a motion to dismiss. As evidentiary material outside the Complaint was considered by the Court, the Motion was treated as a motion for summary judgment. The Court further provided the plaintiff an opportunity to respond to the Motion for Summary Judgment.

      . The Court did rule of the merits of the claim as it involved the federal court’s duty to determine whether a labor contract violated federal law before the contract would be enforced by court action.

      . International Longshoremen’s v. Juneau Spruce Corp., 342 U.S. 237, 72 S.Ct. 235, 96 L.Ed. 275 (1952) is not applicable to the case at bar. In that case, the Court determined that an employer had the right to sue for monetary damages under section 303 of the LMRA, 29 U.S.C. § 187. Section 303(b) specifically provides that anyone injured by violation of section 303(a) may sue for damages in any United States district court. In contrast, section 302 provides criminal sanctions for violation of its provisions.
      Further, the Union’s analysis of section 303 to section 302/RICO fails. As stated previously, section 303 provides access to the courts for money damages; section 302 does not. Finally, assuming section 302 in conjunction with RICO provides civil relief, the Union has not sustained a RICO type injury.


source: Caselaw Access Project

author: JOHN GARRETT PENN, District Judge.

license: Public Domain

text:
    AMERICAN BROADCASTING COMPANIES, INC., et al., Plaintiffs, v. UNITED STATES INFORMATION AGENCY, et al., Defendants.
    No. 84-536.
    United States District Court, District of Columbia.
    Dec. 17, 1984.

      Barry R. Goldsmith, Washington, D.C., for plaintiffs.
    Barbara L. Gordon, Dept, of Justice, Washington, D.C., for defendants.
   MEMORANDUM

JOHN GARRETT PENN, District Judge.

The plaintiffs, American Broadcasting Companies, Inc., et al., (“ABC”) filed this action on February 21, 1984, under the Freedom of Information Act, 5 U.S.C. § 552, as amended. Plaintiffs seek access to two groups of tape recordings, transcripts, and notes made by, or at the direction of, the defendant United States Information Agency (“USIA”) Director, Charles Z. Wick. On January 31, 1984, the defendant agency denied plaintiffs’ FOIA request as to both groups of documents. As to the first group of documents, initially, USIA relied upon only one justification for its denial of the plaintiffs’ request, “that the documents in question are not ‘agency records,’ rather, they are ‘personal papers’ of the Director; and thus, do not fall within the purview of FOIA.”

Three months later, defendants indicated, for the first time, their intention to rely upon other, yet to be named, exemptions, in the event that the ‘personal papers’ defense fails. On May 1, 1984, the defendants filed a motion for partial summary judgment on the “agency records” issue.

This matter is now before the Court on plaintiffs’ motion to compel a Vaughn index, plaintiffs’ motion for a continuance and to take five depositions, and plaintiffs’ motion for a status conference. The Court will examine each of these motions in turn.

I

Plaintiffs move that this Court order the defendants to provide an appropriate Vaughn Index and itemization that specifies, with reference to particular documents, all of the exemptions which the government intends to claim. Citing Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir. 1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974), plaintiffs urge that as the “requester of documents” they are entitled to know which exemptions the defendants intend to rely upon. Plaintiffs contend that a Vaughn index is necessary, in order to permit ABC to respond effectively to the government’s refusal to make the documents available.

Courts have consistently recognized that “[a] Vaughn index is critical to the effective enforcement of FOIA litigation.” Founding Church of Scientology, et al. v. Bell, 603 F.2d 945, 947 (D.C.Cir.1979). “Without such an index, neither the reviewing courts nor the individuals seeking agency records can evaluate the. agency’s basis for non-disclosure.” Cuneo v. Schlesinger, 484 F.2d 1086, 1091 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974).

The defendants argue that the plaintiffs’ request for a Vaughn index, at this stage of the litigation, is inappropriate and premature. Defendants contend that it makes sense to first resolve the agency’s “threshold jurisdictional” defense, in advance of reviewing the defendants’ proposed claims of exemptions under FOIA. USIA contends that “if the documents are not agency records, the plaintiffs have no right to them under FOIA or any other federal statute;” thus, the preparation of a Vaughn index would constitute an unnecessary waste of time and resources.

Plaintiffs counter with an argument that the defendants’ proposal to assert its claims seriatim is contrary to the Act, and would serve only to delay the plaintiffs’ access to the materials in issue. Plaintiffs urge that such a piecemeal approach would not only significantly jeopardize the plaintiffs’ journalistic interests; but would also enable the government to postpone the supplying of plaintiffs with the appropriate Vaughn index for an additional several months.

It is well-established law that “the FOIA mandates that all such litigation be speedily pursued and resolved.” Long v. Bureau of Economic Analysis, 646 F.2d 1310, 1322 (9th Cir.1981), vacated on other grounds, 454 U.S. 934, 102 S.Ct. 468, 70 L.Ed.2d 242 (1981). Courts have consistently held that “[djelay by the defendant in raising defenses should be particularly disfavored.” Id. The government should not be permitted to assert its theories seriatim absent the most compelling circumstances, as the interests of judicial economy and finality militate against a court’s tolerating a piecemeal approach. Holy Spirit Association for the Unification of World Christianity v. Central Intelligence Agency, 636 F.2d 838, 846 (D.C.Cir.1980). Accordingly, courts have directed that agencies not be permitted to make new exemption claims to a district court after the judge has ruled in the other party’s favor. Id.

The plaintiffs place great reliance upon Ryan v. Department of Justice, 617 F.2d 781, 792 (D.C.Cir.1980). The Ryan court warned of the dangers of permitting the government to raise its FOIA exemption claims one at a time, at different stages of the district court proceedings. It follows that courts have frequently held that the failure to raise a specific exemption in the district court will preclude consideration of the exemption on appeal. Jordan v. U.S. Department of Justice, 591 F.2d 753, 779 (D.C.Cir.1978). “All such claims should be raised at the district court level, as the government will not be permitted to try its theories seriatim absent extraordinary circumstances.” Ryan, supra, 617 F.2d at 792.

The defendants next argue that the cases which plaintiffs cite are inapposite, as they represent cases in which courts have refused to permit the assertion of additional FOIA exemptions, at later stages of the proceedings, after an initial exemption has been raised and ruled upon. Defendants contend that its initial “non-agency records” defense is not an “exemption,” rather it should be distinguished as a “threshold jurisdictional defense,” and therefore justifies their delay in raising alternative exemptions under FOIA. USIA maintains that if the “jurisdictional” defense is rejected; they will proceed to assert all FOIA exemptions at once, and not seriatim.

However, as the plaintiffs point out, the defendants’ argument ultimately turns upon a mere question of semantics. Defendants have cited no cases where a court has recognized a distinction between “exemptions” and “threshold jurisdictional” defenses. Moreover, the case law sets forth a policy requiring simultaneous presentation of FOIA exemptions in the district court. It makes sense that government agencies involved in FOIA litigation should be prepared to raise all claims under the FOIA, and in the alternative, at the initial stages of the proceedings, so that the plaintiff may respond, and the court rule, in the most expeditious manner.

The plaintiffs are at a disadvantage in having to litigate over documents which they have never seen (the very disadvantage for which the Vaughn index was designed to remedy). If the defendants’ initial defense is rejected; their proposed piecemeal approach would result in the need to interrupt the litigation, while the agency prepares a Vaughn index for the documents.

In light of the well-established policy requiring the expeditious resolution of FOIA actions, the defendants’ failure to present persuasive authority in support of their “semantic distinction” argument, and the defendants’ failure to articulate the requisite “compelling” or “extraordinary” circumstances which would justify their proposed piecemeal approach; the Court grants the plaintiffs’ motion for a Vaughn index. The defendants must provide plaintiffs with the Vaughn index no later than December 17, 1984.

II

Pursuant to the Federal Rule of Civil Procedure 56(f), ABC also moves the Court for an order continuing the defendants’ pending motion for partial summary judgment, to permit plaintiffs to take depositions of five USIA employees. ABC asserts that the depositions of these five USIA employees are necessary to enable plaintiffs to present the facts essential to justify their opposition to the motion.

Courts in this Circuit have stressed the importance of permitting FOIA plaintiffs to take depositions under Rule 56(f) where the relevant factors are in the control of the moving party and the affidavits are inaccurate or incomplete. Londrigan v. Federal Bureau of Investigation, 670 F.2d 1164 (D.C.Cir.1981); Shaffer v. Kissinger, 505 F.2d 389 (D.C.Cir.1974) (per curiam). Plaintiffs cite substantial authority supporting the proposition that “Rule 56(f) motions should be liberally granted ... especially where all of the allegedly material facts are within the exclusive knowledge of the opposing party.” Ward v. U.S., 471 F.2d 667, 670 (3d Cir.1973). “Rule 56(f) contemplates those situations in which additional discovery is needed to justify opposition to the motion for summary judgment; where the facts are in possession of the moving party, a continuance • of the motion for discovery should be granted almost as a matter of course.” Costlow v. U.S., 552 F.2d 560, 564 (3d Cir.1977).

Plaintiffs assert, by affidavit, that additional discovery is needed in order to justify their opposition to the pending motion for partial summary judgment. Contending that the ex parte declarations of Mr. Wick, Mr. Earle, Mr. Vesper, and Ms. Siemien present incomplete and inconsistent versions of essential facts, plaintiffs maintain that the requested discovery is necessary to fully explore these discrepancies and to provide important evidence that is missing from these declarations, and in the exclusive control of the defendants.

The defendants first argue that the plaintiffs have failed to meet their burden of proof as “plaintiffs have presented only a bare hope of falling upon something that might impugn the government’s affidavits.” The defendants maintain that the plaintiffs should not be allowed “to conduct such a fishing expedition.”

The Court finds the defendants’ burden of proof argument unpersuasive. Wright’s Federal Practice & Procedure summarizes the case law on this issue:

Under rule 56(f) the adversary need not even present the proof creating the minimal doubt on the issue of fact which entitles him to a full trial; it is enough if he shows the circumstances which hamstring him in presenting that proof by affidavit in opposition to the motion. 10A Wright, Miller & Kane, Federal Practice and Procedure, Civil § 2740 at 520 (2d ed. 1983).

In an alternative argument, in the event that the Court finds that discovery is appropriate under Rule 56(f), defendants contend that a number of limitations should be placed upon the plaintiffs’ discovery. Specifically, the defendants maintain that: (1) Discovery should be limited to those specific issues of material fact raised in the Goldsmith affidavit; (2) Discovery by deposition is inappropriate — interrogatories should be used; (3) Discovery of Mr. Wick should be prohibited, but if allowed, should be limited to one hour; and (4) Plaintiffs have not set forth sufficient reasons to justify taking the depositions of Mark Everson and Peggy Pape.

Again, the Court finds that the defendants’ arguments are without merit. The restrictions suggested by defendants would serve only to frustrate any meaningful discovery on the plaintiffs’ behalf. Depositions are the most efficient means of discovery for the plaintiffs' in the context of the instant case. Moreover, depositions are the preferred means of discovery in the Rule 56(f) context. “Because the exigencies of time are paramount; discovery [under Rule 56(f) ] through the use of depositions is appropriate.” Murphy v. Federal Bureau of Investigation, 490 F.Supp. 1134, 1138 (D.D.C.1980). Depositions are also more reliable, as they are taken under oath, and the deponents’ responses are relatively spontaneous.

Defendants assert, that as a general rule, heads of government agencies should not be subject to deposition. However, the Court finds that the unique circumstances of this action, distinguish this case, and justify the Court’s decision that the deposition of Mr. Wick be allowed. Mr. Wick is the sole person responsible for the creation of the documents in question. He contrived the procedures implemented for the development, maintenance, and distribution of the transcripts at issue. Moreover, the plaintiffs are not seeking to depose Mr. Wick regarding why his or his agency’s statutory discretion was exercised in a particular manner; neither are plaintiffs interested in Mr. Wick’s “deliberative thought processes.” Plaintiffs simply seek to question Mr. Wick with respect to facts that only he can answer. Mr. Wick is a crucial fact witness whose testimony is essential for the plaintiffs to oppose defendants’ motion. “Where an agency head possesses particular information necessary to the development or maintenance of the party’s case, which cannot be reasonably obtained by another discovery mechanism; the deposition should be allowed to proceed.” See Sykes v. Brown, 90 F.R.D. 77, 78 (E.D.Pa.1981). The defendants’ alternative proposal, that the deposition of Mr. Wick should be limited to one hour, would seriously frustrate the plaintiffs’ ability to meaningfully examine Mr. Wick regarding all of the essential facts addressed in his 24 page declaration, as well as the circumstances surrounding the computerization of portions of the materials in question.

The plaintiffs have set forth sufficient reasons to justify their need to depose Peggy Pape and Mark Everson. ABC believes that both individuals may have been substantially involved in the distribution or the computerization of the transcripts. •

The plaintiffs contend that “the Agency wants to maintain a monopoly on the sources of proof, and insulate the persons most knowledgeable about the events ... limiting the presentation of facts to only those facts which the Agency desires to disclose.” This is the very situation in which a Rule 56(f) continuance for additional discovery is most appropriate. For the reasons set forth above, the Court grants the plaintiffs’ motion for a continuance to permit the depositions of the five employees. The Court rejects the defendants’ proposed discovery restrictions. The defendants have failed to present a persuasive argument which would justify the imposition of these discovery limitations which would seriously hamper the plaintiffs’ discovery of facts.

Ill

Finally, the plaintiffs’ motion for a status conference was motivated largely by their desire to facilitate resolution of the two pending motions. As these matters have been resolved, the Court finds no need for a status conference at this time. Accordingly, the motion for status conference is denied.

An appropriate Order has been entered.

      . Under the defendants’ proposed plan, the government could not be ordered to produce the requested documents until after they lost on their threshold "personal papers” defense, after they commenced and completed their processing of the withheld documents for other exemptions that the defendants have acknowledged that they will claim, and until after the parties brief and argue, and the Court rules upon, dis-positive motions on the other yet unnamed exemptions.

      . On April 4, 1984, the Court entered an Order staying all discovery ... without prejudice to plaintiffs seeking discovery at a later date, or . pursuant to a Rule 56(f) motion.


author: NORTHROP, Senior District Judge.

text:
    Roy W. KRIEGER v. The BETHESDA-CHEVY CHASE RESCUE SQUAD, A Maryland Corporation.
    Civ. A. No. N 84-738.
    United States District Court, D. Maryland.
    Dec. 17, 1984.

      Roy W. Krieger, Washington, D.C., pro se plaintiff.
    Robert C. Park, Jr., and Linowes & Blocher, Silver Spring, Md., for defendant.
   MEMORANDUM

NORTHROP, Senior District Judge.

Defendant moved, pursuant to FED.R. CIV.P. 12(b)(6), to dismiss the Complaint for failure to state a cause of action upon which relief can be granted. Count I of the Complaint sets forth a cause of action under 42 U.S.C. §§ 1983,1985 and 1988. This Court, in reviewing the Complaint and the motion, requested the parties to brief the question of “state action” as it pertains to Count I. The parties submitted well-reasoned briefs, supplemented with exhibits and affidavits. In light of these submissions and the nature of the issue, the Court has elected to treat the motion to dismiss Count I as a motion for summary judgment pursuant to FED.R.CIV.P. 56. No hearing is necessary on the motion. Local Rule 6.

Under Rule 56, the burden is on the movant to demonstrate clearly that there is no genuine issue of fact. Any doubt as to the existence of such an issue is resolved against him. E.g., Phoenix Savings & Loan, Inc. v. Aetna Casualty & Surety Co., 381 F.2d 245, 249 (4th Cir.1967). In this motion, however, it is not the facts, but rather the law as applied to the facts that is in dispute.

The nature of defendant Bethesda-Chevy Chase Rescue Squad has been thoroughly revealed by the parties. I have before me a recent publication of the defendant’s describing itself in detail, a list of state- or county-owned property under control of defendant, evidence that some members of defendant who participated in plaintiff’s dismissal proceeding are public officials, the by-laws and charter of the defendant, a schedule of property owned by defendant, and an affidavit from the defendant’s Deputy Chief. The plaintiff has also provided the Court with an exhaustive list of the state regulations and laws that are of particular application to defendant. Finally, I have plaintiff’s comprehensive factual description of defendant as set out in his Complaint which I will accept as true for purposes of this motion.

The defendant, Bethesda-Chevy Chase Rescue Squad (Rescue Squad) is a non-profit Maryland corporation, organized in 1945 and headquartered in Bethesda, Maryland. It is governed by a Board of Directors elected by the membership. The Rescue Squad is comprised of about 200 members. The members are volunteers and receive no remuneration for services. In addition, the Rescue Squad also has at least eleven (11) full-time, paid employees. These employees are paid solely by defendant. The Rescue Squad provides rescue, ambulance, firefighting support, and emergency medical services for over 600,000 people. Its primary area of responsibility is Montgomery County, Maryland. Plaintiff values defendant’s assets at a minimum of two million dollars. The defendant owns its own building and surrounding real estate, as well as all its vehicles. Defendant’s fleet includes five (5) ambulances, two (2) mobile intensive care units, two (2) heavy rescue trucks, a field canteen, a “mask-support unit,” and miscellaneous support vehicles. In addition, the Rescue Squad has under its control the necessary infrastructure, i.e., radios, etc., needed to support its operations. Among these items is some state- or county-owned property, primarily radios, loaned to the defendant. The state- or county-owned property is reliably valued by defendant at approximately $92,900. For 1984, defendant estimates its operating expenditures to total $570,950 and its capital expenditures to total $375,500.

Both parties agree that the defendant receives no direct financial assistance from the state. Indeed, the defendant has made a conscious policy of avoiding such assistance in an attempt to foreclose excessive state involvement with its operations. To pay for its operations, the defendant depends upon private contributions and grants. Defendant does receive, however, free water and sewerage from Montgomery County. Members of defendant are also covered by Maryland’s Workmen’s Compensation statute. MD.ANN.CODE art. 101, § 34 (1982). They or their survivors are also eligible for some pension benefits from the state if they are disabled or killed in the line of duty. Similarly, state scholarships are available to the children of Rescue Squad members killed or disabled in the line of duty. MD.ANN.CODE art. 38A §§ 42, 42A (1957) and MD.EDUC. CODE ANN. §§ 18-601, 602 (1978). Plaintiff presents other statutes particularly applicable to the defendant, including: criminal penalties for interference with or obstruction of the rescue squad, exemption from certain state taxes, ability to enter into mutual aid agreements with the federal government or adjacent state jurisdictions, reimbursement for courses taken towards a degree in fire service technology, occupational disease compensation, and right to organize a group life insurance policy.

Plaintiff alleges a violation of 42 U.S.C. § 1983 by the defendant for violation of plaintiff’s First, Fifth and Fourteenth Amendment rights. These constitutional protections asserted by plaintiff only restrain the actions of the state and not those of private individuals or entities. As the United States Supreme Court explained in Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978) where a § 1983 claim is made alleging violation of constitutional rights:

[Plaintiffs] are first bound to show that they have been deprived of a right ‘secured by the Constitution and the laws’ of the United States. They must secondly show that [defendant] deprived them of this right acting ‘under color of any statute’ of the [state]. It is clear that these two elements denote two separate areas of inquiry.

Flagg Brothers, supra, at 155-156, 98 S.Ct. at 1732-33.

In Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982), the Supreme Court held that satisfaction of the first requirement of Fourteenth Amendment “state action” necessarily satisfied the second requirement of § 1983 “color of state law.” Id. at 935-36, n. 18, 102 S.Ct. at 2753. The converse is not necessarily true, however, i.e., where the action under color of state law means nothing more than action with the knowledge of and pursuant to the state law. Id. The critical question in this case, thus, remains whether there is state action as required by the Fourteenth Amendment, or whether the alleged infringement of plaintiff’s constitutional rights were merely the acts of a private entity. E.g., Civil Rights Cases, 109 U.S. 3, 11, 3 S.Ct. 18, 21, 27 L.Ed. 835 (1883); Rendell-Baker v. Kohn, 457 U.S. 830, 837, 102 S.Ct. 2764, 2769, 73 L.Ed.2d 418 (1982).

Plaintiff utilizes several theories to argue that the defendant or defendant’s conduct is sufficiently attributable to the State.

I. SYMBIOTIC RELATIONSHIP

A “symbiotic relationship” is found where “[t]he State has so far insinuated itself into a position of interdependence [with the private party] that it must be recognized as a joint participant in the challenged activity____” Burton v. Wilmington Parking Authority, 365 U.S. 715, 725, 81 S.Ct. 856, 861, 6 L.Ed.2d 45 (1961).

Plaintiff has failed to establish a symbiotic relationship in this case for several reasons. First, he has shown no real “interdependence” between the public and private entities. The Court in Burton went to some length to describe the inescapable economic interdependency between the public parking garage and the privately owned restaurant located within the garage. Id. at 722-25, 81 S.Ct. at 860-61. There was a symbiosis of the functions of the public and private properties. Here, by contrast, mere loan of county- or state-owned radio or rescue equipment for use in defendant’s vehicles fails to really establish that the State and the Rescue Squad are “joint participants” in any enterprise. Second, the purported joint participation must relate to the challenged activity. In Burton, the exclusion of blacks by the private entity was found to be a business policy designed to maintain customers, and the joint participation of the State and the restaurant was for business purposes. Id. at 724, 81 S.Ct. at 861. There is no relationship between the alleged expulsion of the plaintiff for exercising his First Amendment rights and the loan of state- or county-owned rescue equipment. Finally, some recent decisions even indicate that Burton is to be limited to its facts: a State lessor and a private lessee with the business of each contributing to the business of the other. Eggleston v. Prince Edward Volunteer Rescue Squad, 569 F.Supp. 1344, 1349 (E.D.Va.1983), citing, Burton, supra, at 726, 81 S.Ct. at 862. The Bethesda-Chevy Chase Rescue Squad owns its own building and real estate, and has no “business” relationship with the State as described in or reasonably inferred from Burton.

II. PUBLIC FUNCTION

Where a private entity exercises powers traditionally or exclusively reserved to the State, “state action” has been found. Jackson v. Metropolitan Edison Company, 419 U.S. 345, 352, 95 S.Ct. 449, 454, 42 L.Ed.2d 477 (1974). Plaintiff has not really tried to show that supplying rescue or ambulance services has ever been a function exclusively reserved to the states. Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 158, 98 S.Ct. 1729, 1734, 56 L.Ed.2d 185 (1978). Nor would the Court hold such rescue or ambulance services to be such a public function. Eggleston v. Prince Edward Volunteer Rescue Squad, 569 F.Supp. 1344, 1350-51 (E.D.Va.1983).

Plaintiff’s other argument for finding a “public function” lies, in the fact that the defendant purportedly performs firefighting functions. Unquestionably, firefighting is traditionally an exclusively public function. What defendant actually does at fires, however, is assist the firefighters on the scene by providing emergency lighting and power if necessary. As an emergency medical/rescue team at the scene anyway to perform its regular duties, it is not surprising that the Rescue Squad will also help out the firefighters in any other way it can. This, however, does not make the Rescue Squad a volunteer or adjunct fire department. The Rescue Squad does not show up to fight the fire. The Rescue Squad shows up primarily to care for, rescue and transport the injured. Assisting the fire departments in an ancillary manner is not enough to convert the defendant’s actions into the public function of firefighting.

Obviously, the Court cannot reasonably hold that every level of support for firefighting legally brings the supporter within the public functions of firefighting. Otherwise, we might all be firemen. In this case, where the defendant does not participate in the management or control of the firefighting, is neither equipped to nor participates in the essential tasks of firefighting, but rather provides, only if necessary, the rather passive services of emergency light and power, and is present at the scene for its own reasons unrelated to firefighting, the Court cannot hold defendant to be engaged in the public function of firefighting.

III. STATE REGULATION

The mere regulation of a private entity by the State, even if extensive and detailed, is insufficient to establish State action. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350, 95 S.Ct. 449, 453, 42 L.Ed.2d 477; Eggleston v. Prince Edward Volunteer Rescue Squad, 569 P.Supp. 1344, 1349 (E.D.Va.1983). State action is established where “there is a sufficiently close nexus between the State and the challenged action of the regulated entity [such] that the action of the latter may be fairly treated as that of the State itself.” Jackson, supra at 351, 95 S.Ct. at 453. Despite the plethora of regulations listed by plaintiff, he has failed to show how the State mandates or encourages by regulation any of the wrongs allegedly suffered by him. No regulation has been presented that even remotely promotes curtailment of free speech or due process, or influences decisions to discharge employees.

IV. CLOSE NEXUS BETWEEN CHALLENGED ACTIVITY AND ACTION BY STATE OFFICIALS

Where a private entity acts in concert with public officials to commit a prohibited act, the private entity’s acts are state action. E.g., Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 941, 102 S.Ct. 2744, 2756, 73 L.Ed.2d 482 (1982); Adams v. Bain, 697 F.2d 1213, 1217 (4th Cir.1982). In support of his allegation that the Rescue Squad acted in concert with public officials to discharge him, plaintiff claims that three public officials participated in his expulsion proceedings. They were the Rescue Squad’s Chief Officer, Deputy Chief Officer, and Vice-President. For purposes of this motion, the Court will assume that these officers are also public officials. For purposes of this motion, the Court will assume that these three individuals actively sought and participated in plaintiff’s expulsion.

These three officers of the Bethesda-Chevy Chase Rescue Squad are delegates to the Montgomery County Fire Board. The Chief Officer is also a member of the Montgomery County Fire and Rescue Commission. This, in plaintiff’s opinion, makes them public officials. The Montgomery County Fire Board is composed of delegates from the various independent fire and rescue service corporations in the county. The Board elects five of the seven members of the Fire and Rescue Commission, and also serves as an advisory body to the Commission. The Fire and Rescue Commission is composed of five members chosen by the Board and two members chosen by the Montgomery County Executive and Council. The Commission sets general policy guidelines for the 18 independent fire and rescue service corporations.

Mere participation by a public official, however, in the affairs of a private entity obviously does not, in itself, make the entity the “State.” There must be some nexus between the individual’s capacity as a public official and the challenged action. As the Supreme Court made clear in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), “state action” may be found where the public official acting in performance of his duties or, in contravention of his duties, misuses powers possessed by virtue of state law and made possible only because the official is clothed in the authority of state law. Id. at 184, 81 S.Ct. at 482, relying on United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941). This standard has not been broadened by subsequent decisions. A public official does not by his mere presence transubstantiate a private entity. Not every action by a public official is “state action.” Plaintiff may be granted for purposes of this motion a nexus between the acts of the individuals who are public officials and the private entity, but he has not complained of any activity “clearly attributable to the State,” thus resulting in “official lawlessness.” United States v. Price, 383 U.S. 787, 795, 86 S.Ct. 1152, 1157, 16 L.Ed.2d 267 (1966) (emphasis added).

There is no connection between the acts of the County commissions or commissioners and the expulsion of the plaintiff. There was no allegation of use or abuse of any authority vested by the State in the named individuals in the expulsion of the plaintiff. Nor can any be credibly constructed from the facts set forth which fully describe the public entities, and the challenged activities. Plaintiff has based his theory of state action through concerted activity with public officials on the mere presence and participation in the expulsion proceedings of individuals who happen to be public officials. This has never been enough to find state action before, and it is not enough now. Otherwise, any private organization that includes public officials as functioning members might become the State regardless of the actual state action involved.

Y. GOVERNMENT SUPPORT OR FUNDING

The plaintiff also points out various ways the Government financially supports the Rescue Squad. The support shown, however, does not rise to even the level previously found insufficient to show state action in a nearby district court. Eggleston v. Prince Edward Volunteer Rescue Squad, 569 F.Supp. 1344, 1351 (E.D.Va. 1983). Unlike the Rescue Squad in Eggleston, supra, the Bethesda-Chevy Chase Rescue Squad receives no direct governmental funding or subsidies. It does benefit from certain tax exemptions, and its members are eligible for workmen’s compensation and group life insurance, but myriad private entities benefit in like manner. It does receive free water and sewerage service. The Court must point out, however, that the Rescue Squad in Eggleston, supra, received an undoubtedly more lucrative free county water and gasoline. The Rescue Squad members are also eligible for state-funded service pensions. These pensions, however, are available to relatively few individuals, and are quite modest. The state also lends some radios and other equipment to the Rescue Squad for its use. But these are on loan, and do not constitute excessive funding. It is a matter of degree whether a state’s financial support of a private entity might be so excessive as to make the “private” status of the entity a fiction. The Court’s review of precedent finds no support for finding any such excessive support even remotely present in this case.

Furthermore, the Supreme Court has, in effect, directed our inquiry to be about the nature and scope of the funding, not the quantity. Blum v. Yaretsky, 457 U.S. 991, 1011, 102 S.Ct. 2777, 2789, 73 L.Ed.2d 534 (1982). There must be a clear connection between the public funding of the private entity and the complained of expulsion of the plaintiff. Id. There is neither any alleged, nor can the Court reasonably infer any.

Having considered and rejected all of plaintiff’s arguments for finding state action in this case, the Court holds that the Bethesda-Chevy Chase Rescue Squad is not the “state” for purposes of the First, Fifth or Fourteenth Amendments. Accordingly, I must dismiss in its entirety Count I of the Complaint alleging violations of 42 U.S.C. §§ 1983, 1985 and 1988.

      . See Charles Calvert v. Dr. Nathaniel Sharp, 748 F.2d 861 (4th Cir., 1984). In Charles Calvert, a doctor who treated prison inmates under contract with the State of Maryland and was a privately employed physician without custodial or supervisory powers over the inmates was held not to be acting under color of state law because his obligation was not to the mission of the state. Likewise, the Rescue Squad has no supervisory powers over the firefighting, or obligations to the fire department.


author: RAYMOND J. BRODERICK, District Judge.

text:
    Donna DAVIS and Stanley Davis v. Eileen BAER and Rachel Benjamin, t/a Secane Station Apartments.
    Civ. A. No. 84-5396.
    United States District Court, E.D. Pennsylvania.
    Dec. 17, 1984.
    Michael Murphy, Luchsinger, Murphy & Noel, P.C., Media, Pa., for plaintiffs.

      Linda L. Shafer, Hunt & Fineman, P.C., Philadelphia, Pa., for defendants.
   MEMORANDUM

RAYMOND J. BRODERICK, District Judge.

In this action the plaintiffs, Donna and Stanley Davis, claim injuries and damages arising from an accident in which Donna Davis allegedly suffered severe burns while she was cleaning the electric stove in her apartment. The complaint was filed in the Court of Common Pleas of Delaware County on February 15, 1984. The complaint alleges that the plaintiffs are residents of the Secane Station Apartments in Secane, Pennsylvania, and that the defendants, Eileen Baer and Rachel Benjamin, were at the time of the plaintiffs accident the owners and operators of the Secane Station Apartments. The complaint was filed against the defendants “trading as” Secane Station Apartments. The plaintiffs allege, inter alia, that the defendants were negligent in failing to provide a safe electric stove for the plaintiffs’ apartment; in failing to adequately maintain and repair the stove; and in failing to warn the plaintiffs of the hazards of the stove. Plaintiff Donna Davis claims damages resulting from her injuries, and Stanley Davis, her husband, claims loss of consortium.

On November 5, 1984, the defendants removed the case to this Court, alleging federal jurisdiction pursuant to 28 U.S.C. § 1332 on the basis of diversity of citizenship of the parties. In their petition for removal the defendants alleged that the defendants are New Jersey citizens and are two partners of a thirty member New Jersey general partnership (none of whose members are Pennsylvania citizens) which owned and operated the Secane Station Apartments at the time of the plaintiff’s accident.

The plaintiffs have filed a motion to remand this case to the Court of Common Pleas in accordance with 28 U.S.C. § 1447(c), alleging that the case was improvidently removed because the defendants failed to remove the case within thirty days following receipt of plaintiffs’ complaint, as required by 28 U.S.C. § 1446(b). For the reasons that follow, this Court will grant the plaintiffs’ motion and remand this ease to the Court of Common Pleas of Delaware County.

Subsection (b) of 28 U.S.C. § 1446 states as follows:

The petition for removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.
If the case stated by the initial pleading is not removable, a petition for removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.

As noted above, the complaint was filed in the Court of Common Pleas on February 15, 1984. The record shows that on April 3, 1984, the plaintiffs filed a motion for alternative service in the state court pursuant to Pa.R.Civ.P. 2079(d), accompanied by an affidavit from plaintiffs’ counsel setting forth his unsuccessful efforts to achieve personal service upon the defendants or to ascertain their whereabouts. It appears that at the time the plaintiffs attempted to serve the defendants at the Secane Station Apartment offices, the defendants no longer owned the apartment complex. The plaintiffs’ motion for alternative service requested that service be made by certified mail upon the defendants’ insurance carrier in lieu of service upon the defendants. On April 5, 1984, the Court of Common Pleas of Delaware County granted the plaintiffs’ motion for alternative service and ordered that service of the complaint be made by certified mail upon the defendants at their last known address, and by certified mail upon defendants’ insurance carrier.

On May 2, 1984, the plaintiffs filed an affidavit of service with the Court of Common Pleas, asserting that service had been made by mail upon the defendants’ insurance carrier and upon the defendants at the Secane Station Apartments address. On May 11, 1984, counsel (retained by defendants’ carrier) filed Preliminary Objections on behalf of the defendants in the Court of Common Pleas, contending that the plaintiffs’ motion for alternative service was improvidently granted and that the service of process was invalid. The Court of Common Pleas denied the defendants’ Preliminary Objections in an order dated October 16, 1984. The defendants filed an answer to the complaint on November 5, 1984, and on the same date filed their petition for removal in this Court.

Clearly the petition for removal was not filed within thirty days after the defendants’ insurance carrier received the plaintiffs’ complaint in May of 1984. The defendants advance three contentions in support of their claim that the petition was timely filed. First, the defendants contend that the filing of Preliminary Objections in the state court tolled the thirty day period for removal. The defendants contend the thirty day period was tolled from May 11, 1984 (when the Objections were filed) until October 16, 1984 (when they were denied). Since nine days elapsed between service of the complaint and the filing of the Preliminary Objections, and twenty days elapsed between the denial of the Objections and the filing of the removal petition, the defendants contend that only twenty-nine “untolled” days elapsed between receipt of the complaint and the filing of the petition, and thus the removal petition was timely filed. However, the defendants’ contention that the filing and pendency of the Preliminary Objections tolled the thirty day removal period is incorrect. It is well-settled that “[t]he time limitations in Section 1446 are mandatory and must be strictly construed ... They will not be extended by continuances, demurrers, motions to set aside service of process, pleas in abatement, or court orders [filed in the state court] ...” 14 C. Wright, A. Miller, and E. Cooper, Federal Practice and Procedure, § 3732, p. 729-30 & n. 34 (2d ed. 1976) (citing cases) (emphasis added). See also 1A J. Moore & B. Ringle, Moore’s Federal Practice, ¶ 0.168 [3-5-8], pp. 601-02 (2d ed. 1983); Coco v. Altheimer, 46 F.Supp. 321, 323 (W.D.La.1942). As Professor Moore has pointed out, “Valid service of process upon the defendant is not a prerequisite for removal, and the validity of ser-' vice of process may be challenged after removal.” 1A Moore’s Federal Practice, supra at ¶ 0.168[3.-5-3], p. 581. Thus the defendants’ filing of Preliminary Objections in the state court did not toll the thirty day period for removal set forth in § 1446(b).

The defendants next contend (though unsupported by affidavit) that although service was made upon defendants’ insurance carrier, and counsel filed Preliminary Objections on behalf of the defendants in the state court, the defendants themselves were not personally in “receipt” of the initial pleading “through service or otherwise” pursuant to § 1446(b) until sometime after the state court’s denial of the defendants' Preliminary Objections on October 16, 1984. However, it is clear that “notice of the lawsuit [may] be received by anyone authorized to accept process for the defendant”, and that the time for seeking removal begins to run when the “defendant or his agent” receives the initial pleading. 14 Federal Practice & Procedure, supra at § 3732, pp. 722-23; 1A Moore’s Federal Practice, supra at ¶ 0.168[3.-5-8], p. 584; see Maglio v. F. W. Woolworth Co., 542 F.Supp. 39, 41 (E.D.Pa. 1982). Defendants’ counsel is the same counsel who filed the Preliminary Objections on defendants’ behalf in the state court on May 11, 1984 (just nine days after service of process was made upon defendants’ carrier), and the defendants do not contend before this Court that their insuranee carrier was not authorized to accept service of process on their behalf.

Finally, the defendants contend that because the state court complaint did not allege all the parties’ citizenship, the defendants did not receive adequate notice that the case was removable to the federal court on the basis of diversity of citizenship. This claim seems rather disingenuous, since the defendants were readily able to ascertain all parties’ citizenship and file their petition for removal as soon as their Preliminary Objections were denied by the state court. Moreover, this Court recently has observed that “[t]he great majority of courts that have considered the matter have concluded that a failure of the plaintiff to allege a party’s citizenship in the initial pleading does not prevent the thirty day removal period from commencing.” Stokes v. Victory Carriers, Inc., et al., 577 F.Supp. 9, 11 (E.D.Pa.1983). See, e.g., Blow, et al. v. Liberty Travel, 550 F.Supp. 375, 377 (E.D.Pa.1982); DiMeglio v. Italia Crociere Intemazionale, 502 F.Supp. 316, 319 (S.D.N.Y.1980); Kaneshiro v. North American Company for Life and Health Insurance, 496 F.Supp. 452, 462 (D.Ha. 1980); Nicholas v. Macneille, 492 F.Supp. 1046, 1047 (D.S.C.C.D.1980); Lee v. Volkswagon of America, Inc., 429 F.Supp. 5, 7 (W.D.Okl.1976); Jong v. General Motors Corp., et al., 359 F.Supp. 223, 224-25 (N.D. Cal.1973). This Court noted in Stokes that “as a matter of general practice, state court plaintiffs do not routinely allege the citizenship of the parties in their complaints, and that where the initial pleading is ‘indeterminate’ as to the parties’ citizenship, ‘the burden is on the defendant seeking removal to scrutinize the case and remove it in a timely fashion.’ ” 577 F.Supp. at 11, quoting Kaneshiro v. North American Company for Life and Health Insurance, 496 F.Supp. at 455-56, 462.

It is well-settled that the removal statutes are to be construed strictly against removal and in favor of remand. Shamrock Oil Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941); Stokes, 577 F.Supp. at 12. On a motion to remand the burden is upon the defendant to establish that the case was properly removed to the federal court. Jones v. General Tire & Rubber Co., 541 F.2d 660 (7th Cir.1976); Blow, et al. v. Liberty Travel, 550 F.Supp. at 375-76; 1A Moore’s Federal Practice, supra at ¶ 0.168[4.-1], p. 647. For the reasons set forth above this Court has determined that this action was not removed within the thirty day period provided for in 28 U.S.C. § 1446(b). Accordingly, an order will be entered remanding this case to the Court of Common Pleas of Delaware County.


author: SWEET, District Judge.

text:
    DOUBLEDAY & COMPANY, INC., Plaintiff, v. Tony CURTIS, Defendant.
    No. 82 Civ. 7888 (RWS).
    United States District Court, S.D. New York.
    Dec. 17, 1984.

      Satterlee & Stephens, New York City, for plaintiff; James F. Rittinger, New York City, of counsel.
    Richard W. Meirowitz, New York City, for defendant.
   OPINION

SWEET, District Judge.

This is a dispute about creativity and the respective responsibilities of an author and his publisher. It takes the form of a diversity action by plaintiff Doubleday & Company, Inc. (“Doubleday”), a well known New York publishing house, which seeks to recover a $50,000 advance paid to defendant Tony Curtis (“Curtis”), a well known and well regarded actor. The advance was to be credited against the sales by Doubleday of a book by Curtis which was never published. Upon the findings of fact and conclusions of law set forth below, judgment will be entered dismissing the complaint and Curtis’ counterclaims.

Prior Proceedings

This hard fought and well litigated action was commenced on November 24, 1982. Curtis answered and counterclaimed seeking from Doubleday additional' royalties due him from the sales of his prior book “Kid Andrew Cody and Judie Sparrow” {“Kid Cody”), previously published by Doubleday. ' Discovery with some attendant motions was conducted.

A six day non-jury trial took place from October 4 to 15, 1984 during which eight witnesses were heard and a number of exhibits admitted. Final arguments and briefs, proposed findings and conclusions were submitted on November 9, 1984. The findings and conclusions stated below are based upon those proceedings.

Findings of Fact

Curtis, a California resident, is an engaging and highly successful actor, who tried his hand at writing while in the midst of his successful acting career. By 1976 he had completed a manuscript which he submitted to Doubleday, a New York corporation with offices in the City in which it conducts a substantial publishing business. On February 18, 1976 Curtis and Doubleday signed an agreement which defined the rights of the parties with respect to two works by Curtis described as “1. Kid Andrew Cody, and 2. an untitled work.” (the “1976 Agreement”). It is the submission and treatment of this second, then untitled, work which gives rise to the controversy.

This 1976 Agreement provided for the payment of advance royalties by Doubleday to Curtis of $12,500 upon signing the 1976 Agreement, $12,500 upon acceptance by Doubleday “of complete satisfactory manuscript for book # 1”, and for similar payments on submission of an outline and acceptance of book #2. Curtis’ address was stated to be care of Aaron M. Priest Literary Agent, although Doubleday had corresponded with Irving Lazar (“Lazar”), known in the trade as Swifty, concerning the 1976 Agreement. The 1976 Agreement also contained the following provisions:

19. (a) Publisher shall render statements of sales semi-annually as of April thirtieth and October thirty-first and make payment of monies due within four months thereafter. If the work has not earned the amount of royalties advanced or Author has received an overpayment of royalties or is otherwise indebted to Publisher, Publisher may deduct the same from any sum due or to become due Author under this Agreement.

Curtis was also entitled to 50% of any monies received by Doubleday with respect to reprint sales.

Larry Jordan (“Jordan”) was the editor assigned by Doubleday to work with Curtis, and their collaboration was successful. The manuscript for Kid Cody was accepted, the advance royalty was paid. The book was published, some 25,000 copies were sold, and royalties were paid and accounted for. While Curtis was writing Kid Cody, he was making notes and putting aside material for his second book.

In March 1977 Curtis had forwarded to Priest a 133 page manuscript described as “TC’s latest novel, Starstruck.” There is insufficient evidence from Curtis to establish that this manuscript was ever received by Doubleday, and Doubleday’s files revealed no evidence of its receipt. In June, 1977 Curtis had an 8-page outline of Starstruck sent to Lazar, having come to a parting of the ways with Aaron Priest. Lazar forwarded the 8-page outline to Betty Prashker, a Doubleday editor, (“Prashker”) commenting upon the previous submission to Jordan which had been deemed “as not being deemed satisfactory potential.” Priest at the same time was communicating on the same subject with Stewart Richardson, the Doubleday editor, known in the trade as Sandy (“Richardson”), but Priest shortly afterwards bowed out in favor of Lazar. Curtis at the same time wrote to Jordan expressing gratitude for his past help and counsel and stating that “The second book will be an even more interesting experience for both of us.” Curtis wrote a similarly optimistic letter to Richardson at the same time.

On August 16, 1977 Doubleday entered into a reprint contract with New American Library, Inc. (“NAL”) under which NAL would acquire the paperback rights for Curtis’ untitled book. NAL agreed to pay Doubleday $100,000 in equal installments upon the signing of the agreement, the delivery of the manuscript to NAL, and the publication by Doubleday and another $100,000 in two equal $50,000 payments upon publication by NAL and three months thereafter. The resale agreement provided that the anticipated delivery date of the accepted manuscript was December 31, 1979 and that NAL could terminate the agreement if delivery of the manuscript was not made by December 31, 1980.

On September 7, 1977, Curtis and Doubleday entered a second agreement, replacing the 1976 agreement with respect to the second book referred to in the 1976 Agreement. This replacement agreement (the “Agreement”) provided that Curtis would receive an advance royalty of $50,000 at the time of the agreement and another $50,000 “on acceptance of complete satisfactory manuscript.” As in the 1976 Agreement, Curtis was entitled to 50% of payments received from reprint sales. Like the 1976 Agreement the Agreement was on a printed form provided by Doubleday. It was negotiated on Curtis’ behalf by Lazar, and its terms are central to the resolution of this action.

The Agreement contained no provision relating to editorial services to be provided by Doubleday but required in Paragraph 25(a) “two (2) finally revised copies of the work, satisfactory to Publisher in context and form, ... not later than October 1, 1978” and stated in Paragraph 25(d), “The provisions of subparagraphs (a) and (b) as to the character, condition and time of receipt of the copies of the work are of the essence of the agreement, and in the event of Author’s default hereunder Publisher may, at its option, any time prior to actual publication of the work, terminate this Agreement without prejudice to any other remedy.”

By April 5, 1978 Curtis had a manuscript of 213 pages which he entitled Starstruck and sent to his friend Alan Carr for comments. Carr had no time for the project. At the same time Larry Jordan wrote to Curtis seeking to get “some definite fix on the new novel” and to straighten out a “promotional snafu around Kid Andrew Cody.” Jordan suggested a more formalized editorial process, candid, open, and forthright. He suggested Richardson as an editor if Curtis preferred not to work with Jordan. A Doubleday inter office memo indicated that Curtis was expected to have “most of his next book STAR STRUCK (Working Title)” put together by Christmas of 1978. In January 1979 an editorial assistant to Richardson sought to get the date on which Curtis anticipated he would submit his new novel. Curtis’ secretary indicated that Curtis would reach Richardson in March 1979 after finishing a film to arrange to get together on the book. No documents are presented by Doubleday or Curtis covering the period from early 1979 to early 1980. Curtis testified candidly and courageously as to difficulties involving both his personal and medical life during this period.

Early in 1980 Ted Macri, the subsidiary rights director of Doubleday, (“Macri”) pointed out to Prashker the “200,000 early deal with NAL” and inquired as to the inheritor of the Tony Curtis line and whether the second book was “in the works,” which, of course, it wasn’t, at least as far as Doubleday was concerned. An assistant to Richardson made a similar inquiry to Lazar shortly thereafter. Lazar responded that Curtis expected to be in New York for about a year starting in March. On March 14, 1980 Macri had checked the NAL contract and advised Prashker that “we are obliged to publish the book no later than December 31, 1981.” Richardson forwarded this news to Curtis on March 24 and by mid April Curtis undertook to send off “a goodly amount of pages” next week and by April 18 he did so, asking Richardson for “comments and suggestions.”

Richardson sent Curtis’ letter to Macri, who promptly obtained a one-year extension of the NAL contract so that Doubleday had until December 31, 1981 to receive the manuscript and until December 31, 1982 to publish.

Doubleday next responded to Curtis by a letter from Adrian Zackheim, a Doubleday editor, (“Zackheim”) to Curtis dated August 21, 1980 in which he announced that Richardson “has recently departed from Doubleday rather abruptly” and that he, Zackheim, had been chosen to be Curtis’ new editor and had received the manuscript that morning although it had been “in-house for several months.” Zackheim wrote Curtis again on October 22, 1980 seeking forgiveness for tardiness resulting from a “succession of mini-crises” and on December 11, 1980 forwarded a seven-page letter to Curtis containing a number of editorial suggestions for Starstruck (the “editorial letter”).

In February 1981 a New York trip by Curtis was the subject of correspondence. The trip took place in mid May. By inter office memo of May 6 Macri confirmed the NAL deadlines to Zackheim, stated the belief that NAL’s enthusiasm was cooling, that no further extensions would be likely and suggested that if Curtis did not submit his revisions within eight weeks, permitting publication in the spring of 1982, that Doubleday “consider hiring a doctor to come in and smooth things out so that our $200,000 is fully protected.”

Zackheim and Curtis met on May 18 in the evening for an hour or two. Notwithstanding Macri’s warning, the conversation was largely social although the book was discussed. It was not a working meeting, no drafts were presented or discussed as such, and there was nothing said that cast any doubt upon the eventual publication of the book.

In June at Zackheim’s request Doubleday forwarded $500 to Curtis to pay for the typing of his revisions undertaken in response to Zackheim’s December editorial letter. By August 5 the revised draft of the novel was forwarded. Upon reading the manuscript, Zackheim became concerned and asked Elizabeth Drew (“Drew”), then Executive Editor of Doubleday, to read it which she did.

On August 20 she responded to Zackheim with a memo which stated: “This is truly a terrible book .. ” After considering various alternative courses of action relating to the NAL reprint contract, Drew concluded in the same vein in which the one page memo began: “If I thought this were fixable, I’d try to help in any way I could, but it’s a rotten book and we might as well face it.” The manuscript was also read by Prashker who agreed with the Drew evaluation.

Zackheim called Lazar and told him that Doubleday would not publish. On September 30 Macri again suggested a “novel doctor,” although he noted that it was an editorial matter but pointed out the need to resolve the reprint contract question. By October 5 Zackheim advised Prashker and Macri that Lazar had read the manuscript and told Zackheim that Curtis would not agree to a “ghost rewriter” and would not return the outstanding advance. On November 3 NAL advised Doubleday of their agreement that “the manuscript is unpublishable” and confirmed the Doubleday agreement to repay the monies previously received at the time of the execution of the reprint contract.

Zackheim proposed a termination agreement to Lazar which would have released all Doubleday’s right upon receipt of the advance from Curtis. By the end of the year the dispute was in the hands of counsel where it has remained. Curtis has not sold the manuscript or paid back the advance. This action was commenced on November 29, 1982 and Curtis counterclaimed for royalties due under the 1976 Agreement for sales of Kid Cody.

Conclusions

It is obvious on its face that the Agreement is a publisher’s form and as such, favors Doubleday at every turn. The form of the Agreement, of course, simply follows the relative economic strength of a new, or untried author and an established publisher. For these reasons, as well as the accepted canons of construction, the Agreement must be construed strictly against the drafter. Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197, 1207 (2d Cir.1970); Prescott, Ball & Turben v. LTV Corp., 531 F.Supp. 213, 217 (S.D.N.Y.1981); 67 Wall Street Co. v. Franklin National Bank, 37 N.Y.2d 245, 371 N.Y.S.2d 915, 333 N.E.2d 184 (1975).

The purpose of the Agreement is to regulate the creative process, place it in temporal bounds, provide for funds for the author as the work proceeds, and determine the rights of the publisher and the author with respect to acceptance, publication, royalty payments and the like. The Agreement is unitary, governing the rights of the parties and requires, as all contracts do, the good faith performance by both sides. Lowell v. Twin Disc., Inc., 527 F.2d 767, 770 (2d Cir.1975); T.G.I. East Coast Corp. v. Fireman’s Fund Ins. Co., 534 F.Supp. 780, 782 (S.D.N.Y.1982).

Here the essence of the Agreement entered into in 1977 by its very terms was the delivery of a satisfactory manuscript by October 1, 1978. Failing such delivery, Doubleday was entitled to the return of its advance. However, the time of the essence provision with respect to the delivery of a satisfactory document was waived by Doubleday. As found above, Doubleday gave Curtis every reason to believe his manuscript would be published — up until the summer of 1981, almost four years after the advance had been paid. Doubleday thus not only waived its time of the essence delivery date, but also its right to the return of its advance in the event that it found the manuscript unsatisfactory.

There is no New York authority for the proposition just stated, and, of course, there is none with these facts holding to the contrary. It is therefore the task of this court, faced with a diversity case, to predict what a New York court would do if faced with this issue on these facts. Cunninghame v. Equitable Life Assur. Soc. of U.S., 652 F.2d 306, 308 (2d Cir.1981); Marina Management Corp. v. Brewer, 572 F.2d 43, 45-56 (2d Cir.1978).

Curtis has sought to obtain the same result, but by a different route. He urges Harcourt Brace Jovanich Inc. v. Goldwater, 532 F.Supp. 619 (S.D.N.Y.1982) and Dell Publishing Co., Inc. v. Whedon, 577 F.Supp. 1459 (S.D.N.Y.1984) in which District Judges (albeit one of them was a distinguished Circuit Judge, former Chief Judge, sitting as a District Judge) found a duty under New York law, outside the contract, that required a publisher to provide editorial services before finding a manuscript unsatisfactory. Neither court found any New York authority for this duty, and Doubleday has submitted Stein & Day v. Morgan, Index No. 158110/78 (Sup.Ct.N.Y. Co., May 29, 1979) and the jury instruction, dated March 14, 1984 in Random House v. Howar, Index No. 7252/82 (Sup.Ct.N.Y. Co.) for the proposition that the publisher’s acceptance or rejection is within its own discretion and that there is no obligation to provide any editorial services. In the face of this state court authority, the creation of the obligation to provide editorial services may be equitable, but a question remains as to whether or not it is within the power of this court.

Even if a duty to provide editorial services is accepted as required under New York law, here Doubleday performed it. Curtis would have the court not only declare the existence of thé duty to provide éditing under the Agreement, although it contains no such provision, but also hold that editing provided by Doubleday in this instance was untimely and inadequate. It is Curtis’ position that Doubleday failed to provide consistent editorial supervision, delayed more than six months in providing its editorial comments, and then rejected the manuscript in bad faith in August, 1981 because of its inability to meet the NAL reprint deadline.

Even if the duty to edit does exist, despite the doubts already expressed, the court is unwilling to rewrite the Agreement for the parties in that regard. While the confusion in editorial assignment and delay in- its performance may well have been negligent, it violated no contractual provision. Similarly, while the personal chemistry between Curtis and Zackheim may have differed materially from that between Curtis and Jordan, Doubleday cannot be obligated to provide a satisfactory working relationship between its editor and the author as well as adhere to a court imposed schedule of performance.

Doubleday is most vulnerable to Curtis on the question of good faith, given the difference between Zackheim’s view in December 1980 and the views of its editor in August 1981 and the possible effect of the NAL reprint contract deadlines. However, it was Lazar, Curtis’ agent, that rejected a rewrite by a “novel doctor,” and it was Doubleday that would have benefitted financially if not artistically, if Starstruck had been accepted. Any implication that the subject matter of the book (apparently the exploits, or exploitation of a starlet) was responsible for the rejection was not established by any evidence.

The testimony of Prashker and Drew was credible and unequivocal. Both genuinely believed Starstruck was a terrible book. Both were above Zackheim on the editorial ladder, and indeed Zackheim obviously had serious reservations when he received Curtis’ rewrite. The decision to reject the manuscript was made in good faith, and was authorized under the Agreement.

Curtis has counterclaimed for his share of the NAL payments made in connection with the contemplated reprinting of Starstruck. Since Doubleday would become entitled to the funds only upon the effectuation of the reprint contract and indeed was obligated to return the funds to NAL after the contract was cancelled, the work did not earn the sums involved and Curtis is not entitled to the NAL payments.

In addition Curtis has sought to recover additional royalties arising out of the sales by Doubleday of Kid Cody. Doubleday had deducted its advance payments to Curtis under Paragraph 19(a) from royalties payable on sales. Curtis maintained that Paragraph 19(a) should be construed to mean no deduction should be made if the sales by the publisher exceeded the amount of the advance.

The sought-after construction of the clause was not spelled out in this counterclaim or in the pretrial order, prior to trial except in general terms, was contrary to trade practice, according to Curtis’ expert witness, and has to date not been so interpreted by authors, agents, publishers, or courts. The counterclaim for Kid Cody royalties is therefore dismissed.

Judgment will be entered in favor of Curtis in accordance with these findings and conclusions. No costs will be granted for either party.

IT IS SO ORDERED.

      . The work was known variously as Starstruck and Stella Starstruck, and all versions will be referred to as Starstruck.


author: EDWARD C. REED, Jr., District Judge.

text:
    Virginia KRANTZ, Plaintiff, v. Charles BONECK, Regal Stations, and Wickland Oil Co., Defendants.
    No. CV-R-84-140-ECR.
    United States District Court, D. Nevada.
    Dec. 18, 1984.
    Gary C. Backus, Reno, Nev., for plaintiff.
    Woodburn, Wedge, Blakey & Jeppson by Suellen Fulstone, Reno, Nev., for defendants.
   ORDER

EDWARD C. REED, Jr., District Judge.

Plaintiff moves to remand this case to the District Court of Washoe County after removal here by defendants pursuant to 28 U.S.C. § 1441. Plaintiff filed a response to defendants’ petition for removal and apparently incorporated that response in her motion for remand. Plaintiff's grounds for remand are: (1) that this court lacks jurisdiction; and (2) that defendants’ petition for removal was untimely. Because this Court finds that defendants’ petition was untimely, we need not reach any of the remaining issues.

This action was originally filed in the District Court of Washoe County on January 25, 1984, by the plaintiff, Virginia Krantz, against defendants, Charles Boneck, Regal Stations and Wickland Oil Co. Plaintiff’s complaint claimed damages for offensive touching, breach of contract, and tortious interference of contract. In addition to allegations of offensive touching in plaintiff's first claim for relief, there are also allegations of “retaliation” by defendant Boneck. Further, plaintiff alleges loss of wages and employee benefits, all of which suggest that plaintiff’s first claim for relief rests on allegations of employment discrimination.

Analysis

The right to remove a case from state to federal court is a statutory right. See 28 U.S.C. § 1441. This Court retains jurisdiction over those cases removed from state court in which this Court would have had original jurisdiction. The burden of establishing federal jurisdiction rests on the party seeking removal. Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97, 42 S.Ct. 35, 37, 66 L.Ed. 144 (1921); Salveson v. Western States Bankcard Ass’n, 731 F.2d 1423, 1426 (9th Cir.1984). The removal statute is strictly construed against removal jurisdiction. Salveson, 731 F.2d at 1426.

While the time limitations of 28 U.S.C. § 1446(b) are not jurisdictional they are mandatory and are to be strictly construed when asserted by a party opposing removal. See United States ex rel. Walker v. Gunn, 511 F.2d 1024, 1026 (9th Cir. 1975), cert. denied 423 U.S. 849, 96 S.Ct. 91, 46 L.Ed.2d 72 (1975); 14 Wright, & Miller & Cooper, Federal Practice and Procedure, § 3732.

Plaintiff argues that defendants’ petition for removal was untimely, because it was not filed “within thirty days after the receipt by the defendant, ... of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based ...” as required by the first paragraph of 28 U.S.C. § 1446(b).

Defendants, however, argue that it is the second paragraph of § 1446(b) that determines when the thirty days for removal begins to run in the instant case:

If the case stated by the initial pleading is not removable, a petition for removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.

Defendants’ petition for removal is based on an allegation of federal question jurisdiction. Defendants argue that the case was not removable on the initial pleading because they could not ascertain what plaintiff’s claims for relief were based upon and that the case only became removable when plaintiff stated in her deposition that defendants had violated federal statutes. Thus, defendants argue that the thirty day time limitation did not begin to run until the plaintiff’s deposition.

The question presented is, whether this case was “not removable” on the initial pleading and therefore whether defendants’ time period for removal is determined by the second paragraph of § 1446(b). The second paragraph covers situations in which “the case stated by the initial pleading is not removable ...” and entitles the defendant to removal at such later time as “it may first be ascertained that the case is one which is or has become removable.” 28 U.S.C. § 1446(b).

Defendants argue that it was not until plaintiff’s deposition was taken on or about March 27, 1984, that the defendants learned that there was federal jurisdiction. Thus, defendants aver that the petition to remove was timely filed because it was filed within thirty days from a pleading or other paper (the deposition) from which it may be ascertained that the case is removable.

While a deposition may reveal facts not previously available to the defendant, that is not the case here. In this case, plaintiff, a layperson, merely opined in her deposition that defendants had violated federal and state laws. Defendant should not be permitted to allow the case to remain in state court, while they engage in discovery, move for numerous extensions of time, and then rely on the statement of plaintiff during her deposition to determine that removal to federal court is proper based on federal question jurisdiction.

If this case was removable, it was ascertainable from the facts alleged on the face of the complaint. The facts of the instant case as presented in plaintiff’s complaint do appear sufficient to support removal jurisdiction based on a federal question. The first claim for relief in plaintiff’s complaint is an allegation of sex discrimination. This court would have had original jurisdiction over this case had plaintiff filed the case in this Court with a proper allegation of jurisdiction. In fact, federal courts have exclusive jurisdiction of Title YII sex discrimination cases.

CONCLUSION

Accordingly, this Court finds that the second paragraph of 28 U.S.C. § 1446(b) is inapplicable to this case and that defendants’ time period for removal began to run from their receipt of the initial pleading, according to the first paragraph of § 1446(b). It is not true here that “the case stated by the initial pleading is not removable”; the second paragraph of § 1446(b) does not apply. Where the initial pleading is indeterminate, absent fraud by the plaintiff or pleadings that provide “no clue” that the case is not “not removable”, the burden is on the defendants desiring removal to scrutinize the case and to remove it in a timely fashion.

The rule is not unduly harsh on the defendants. In effect, the defendants are put on inquiry notice by the plaintiffs initial pleading and must inquire of the plaintiff the jurisdictional facts necessary to the petition to remove. It is a burden that rightly rests on the defendants because they are the ones who seek access to a court of limited jurisdiction.

This Court holds, therefore, that the thirty day time limit of § 1446(b) began to run upon defendants’ receipt of the complaint. Furthermore, this Court finds that the defendants failed to carry their burden of proof that the petition for removal was timely.

IT IS, THEREFORE, HEREBY ORDERED that plaintiff’s motion to remand is GRANTED.

IT IS FURTHER ORDERED that there shall be no award of costs pursuant to 28 U.S.C. § 1447(c). It appears to the Court that the removal was the result of excusable misapprehension as to the law. There is no evidence of bad faith motives on the part of defendants in removing the case.

      . As required by 28 U.S.C. § 1446(a), all defendants properly joined in the petition for removal. See Ely Valley Mines v. Hartford Acc. & Indem. Co., 644 F.2d 1310, 1314 (9th Cir.1981).

      . 28 U.S.C. §§ 1441(a), 1441(b) provide:
      (a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.
      (b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.

        See also 28 U.S.C. § 1332.

      . Defendants’ points and authorities undermine this contention. In their opposition to motion for remand defendants state:
      "The cause of action set forth in the first claim is substantially more difficult to determine. There are allegations of offensive touchings of plaintiff by the defendant, which could advert to a claim in battery. At the same time, there are allegations of ‘retaliation’ by plaintiffs employer and its termination of her employment for reporting these allegedly offensive touchings and the loss of wages and employee benefits in damages, suggesting a claim in employment discrimination, specifically that form of sex discrimination commonly referred to as sexual harassment. However, none of the employment discrimination statutes, either state or federal, is [sic] referenced.”
      Defendants’ Points and Authorities in Opposition to Motion for Remand at 1-2. (emphasis added).
      Defendants rely on the complaint to support their argument that there was federal jurisdiction and then change face and allege that they didn’t know it was removable until plaintiff’s deposition.

      . In light of this Court’s disposition of this case based on the lack of timeliness of defendants' petition for removal, this Court need not reach the other issues presented. Those include whether plaintiff attempted to elude exclusive federal jurisdiction over her first claim for relief by “artfully pleading,” and whether this Court’s derivative jurisdiction would not be triggered if the state court had no jurisdiction. See Lambert Run Coal Co. v. Baltimore & Ohio R.R. Co., 258 U.S. 377, 382, 42 S.Ct. 349, 351, 66 L.Ed. 671 (1922); see generally, Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 397 n. 2, 101 S.Ct. 2424, 2427 n. 2, 69 L.Ed.2d 103 (1981).


text:
    Donald BUCKNER, Plaintiff, v. The STATE OF NEVADA, the Board of State Prison Commissioners, Richard Bryan, Brian McKay, William D. Swackhamer; Robert List, former Director of the State Board of Prison Commissioners; Vernon G. Housewright, Director, Nevada Department of Prisons; George Sumner, Warden, Nevada State Prison; Kaylene MacDonald; DOES I-V, Defendants.
    No. CV-R-83-400-ECR.
    United States District Court, D. Nevada.
    Dec. 18, 1984.

      Patrick J. Mullen, Reno, for plaintiff.
    D. Brian McKay, Atty. Gen. of the State of Nev. by David Sarnowski, Deputy Atty. Gen., Carson City, for defendants State of Nev. Bd. of Prison Com’rs and Richard H. Bryan, Brian McKay, William Swackhamer, Vernon G. Housewright, George Sumner, and Robert List.
   MEMORANDUM DECISION AND ORDER

EDWARD C. REED, Jr., District Judge.

All defendants except Kayla McDonald (apparently misnamed Kaylene MacDonald in the complaint) have moved for summary judgment. The litigation has arisen from the injuries sustained by the plaintiff, an inmate of the Nevada State Prison, when hit by some pellets of 00 buckshot fired into the ground by Ms. McDonald. At the time (July 11, 1982), she was a correctional officer trainee manning by herself a perimeter guard tower. She had been hired on June 7, 1982. The shotgun blast was Ms. McDonald’s response to sustained verbal abuse (mostly obscene) directed at her by a group of inmates in the prison yard.

The complaint, which seeks only damages, is comprised of three claims for relief. The first alleges that the moving defendants wrongfully assigned Ms. McDonald to the guard tower without sufficient training or experience to handle properly such a responsible post. This claim, which is based on 42 U.S.C. § 1983, further alleges that the assignment was in accordance with a policy of allowing inexperienced and insufficiently trained correctional officers to so serve.

The second claim for relief alleges that the defendants conspired to deprive the plaintiff of his rights by their failure properly to train, supervise and discipline correctional officers as to the use of force. It is based on 42 U.S.C. § 1985(3).

The third claim for relief alleges the state torts of assault, intentional infliction of emotional distress, false imprisonment and negligence. It seeks to invoke pendent jurisdiction of the Court.

At the threshold, the plaintiff faces the bar of sovereign immunity. The State of Nevada has not waived its immunity from suit in federal court as conferred by the Eleventh Amendment. NRS 41.031(3); Rosenthal v. State of Nev., 514 F.Supp. 907, 913 (D.Nev.1981). The immunity protects the State itself and its agencies and departments. Pennhurst State School & Hosp. v. Halderman, — U.S. -, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984); Spaulding v. Univ. of Washington, 740 F.2d 686, 694 (9th Cir.1984). Therefore, the motion for summary judgment on behalf of defendants State of Nevada and Board of State Prison Commissioners must be granted.

The individual moving defendants all are charged in the complaint with actions and derelictions in their official capacities only. Defendants Bryan, McKay and Swackhammer are named as present members of the Board of State Prison Commissioners, whereas defendant List has been named as a member at the time of the shooting incident. Mr. Housewright is charged in his capacity as Director of the Nevada Department of Prisons and Mr. Sumner as Warden of Nevada State Prison. A suit challenging the constitutionality of a state official’s actions is not considered to be against the state, even though he is sued in his official capacity. Demery v. Kupperman, 735 F.2d 1139, 1150 (9th Cir. 1984). That is the case here, so that the moving individual defendants are not protected by Eleventh Amendment immunity.

The Board of State Prison Commissioners has the general overall responsibility of supervising the State’s prisons, including the review and approval of proposed prison regulations that govern the custody and care of inmates. Craig v. Hocker, 405 F.Supp. 656, 682 (D.Nev.1975); NRS 209.-131(5). The Director of the Nevada Department of Prisons, defendant Housewright, has the direct responsibility “for the supervision, custody, treatment, care, security and discipline” of all inmates of Nevada’s prisons. NRS 209.131(4). He also is charged with the duty of establishing regulations covering the same subject matter. NRS 209.131(5). The Warden of each prison, e.g., defendant Sumner as to the Nevada State Prison, is responsible to the Director of the Department of Prisons for “the execution of all policies and the enforcement of all regulations” pertaining to the custody and care of the inmates of his institution. NRS 209.161(3).

The plaintiff contends that Department of Prisons Procedure No. 218 is overly vague and too general in that it permits the use of force in the “[ejnforcement of rules and procedures.” However, it goes on to limit such use to “reasonable force,” which is defined as “no more force than is actually necessary under the circumstances in each case” and “short of deadly force.” In turn, “deadly force” is defined as that degree of force which is likely to cause serious bodily injury. Department of Prisons Information Bulletin #82-10 specifies, in section (c)(l)(b)(5), that only birdshot may be used when firing warning shots into the yard, because of the small risk of resulting injury; buckshot may be used only to prevent escapes, because of its potential to kill or injure innocent people. Thus, it is apparent that the written rules and procedures of the Department of Prisons were not the legal cause of the plaintiff’s injuries. Ms. McDonald’s act of shooting buckshot into the yard appears, from the evidence presented here, to have been contrary to the Department’s rules and procedures. Therefore, the plaintiff’s injuries resulted not from State procedure but rather, from an unauthorized failure to follow State procedure. See Parratt v. Taylor, 451 U.S. 527, 543, 101 S.Ct. 1908, 1916, 68 L.Ed.2d 420 (1981) (not then a violation of the Due Process Clause of the Fourteenth Amendment redressable in federal court).

The use of excess force against a prison inmate, with the authorization of prison officials, may constitute an Eighth Amendment violation. Albers v. Whitley, 743 F.2d 1372, 1374 (9th Cir.1984). It is the plaintiff’s contention that his injuries occurred because of the moving defendants’ practice of placing untrained and inexperienced correctional officers in the guard towers, with deliberate indifference to the right of prisoners not to be subject to the use of excess force. In a suit wherein state prisoners alleged that conditions at their penitentiary amounted to cruel and unusual punishment, the Ninth Circuit declared:

“The district court may find excess physical force an Eighth Amendment violation, may order guards to refrain from using such force, and may order prison officials to take steps to prevent guards from such activities. But to require prisons to have adequate recruiting, screening, and training programs is an impermissible judicial involvement with the minutiae of prison administration.”

Hoptowit v. Ray, 682 F.2d 1237, 1251 (9th Cir.1982). Lack of such programs was held not to be condemned by the Eighth Amendment. Ibid.

Nevertheless, Nevada statute does impose responsibility on the Director of Prisons and the Warden of each prison as to the custody, care and security of prison inmates. NRS 209.131(4) and (6); NRS 209.161(3). In Hirst v. Gertzen, 676 F.2d 1252, 1263 n. 28 (9th Cir.1982), the Court found that a similar responsibility created a duty to staff a jail with properly hired, trained and supervised personnel. A systematic failure to exercise even minimal care in the hiring and supervision of correctional officers, which created a foreseeable risk that a violation of the plaintiffs civil rights would occur, was held to give rise to a claim for relief when injury did proximately result. See Id. at 1263. In harmonizing the Hoptowit and Hirst cases, this Court concludes that it may not require said officials to institute or maintain any particular hiring or training programs, but may hold them liable if their lack of care as to these matters results in injury to an inmate.

Liability must be based on more than the mere right to control employees. Sewell v. Dever, 581 F.Supp. 556, 561 (W.D. Pa.1984). A succinct statement of the applicable standard is found in Hays v. Jefferson County, Ky., 668 F.2d 869, 874 (6th Cir.1982):

“... a failure of a supervisory official to supervise, control, or train the offending individual officers is not actionable absent a showing that the official either encouraged the specific incident of misconduct or in some other way directly participated in it. At a minimum a plaintiff must show that the official at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending officers.”

This is an extremely difficult standard to meet. The Fifth Circuit has required that the training be so grossly inadequate as to reflect a conscious indifference by the supervisory authorities. Languirand v. Hayden, 717 F.2d 220, 227 (5th Cir.1983). Another jurisdiction looks for the training to be so grossly negligent as to make the correctional officers’ misconduct almost inevitable. Leite v. City of Providence, 463 F.Supp. 585, 590 (D.R.I.1978).

Affidavits supporting the defendants’ motion herein show that Ms. McDonald did receive training, including qualification on the use of firearms. They reflect ho advance warning that she might overreact to circumstances such as caused her to fire the shotgun into the prison yard. She received training on the use of force. Before hiring, a correctional officer must take a written test and be interviewed. Arrest and driving records are investigated. Both classroom and on-the-job training is provided. Assignment to a guard tower minimizes direct contact between the officer and the inmates. There has been no pattern of the unjustified use of buckshot at Nevada State Prison. All of these facts overwhelm the contentions of the plaintiff with regard to deficiencies in the training program. There is no genuine issue of material fact and the defendants are entitled to judgment as a matter of law on the plaintiff’s first claim for relief.

The second claim for relief, based on conspiracy, must fail as a matter of law because there are no allegations of racial or other class-based invidious discriminatory animus. Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971); Mollnow v. Carlton, 716 F.2d 627, 628 (9th Cir.1983).

The third claim for relief asks the Court to exercise pendent jurisdiction over State tort claims. Since the moving defendants are entitled to summary judgment on both the federal claims, the pendent State claims' should also be dismissed. See Jones v. Community Redevelopment Agcy. of City of L.A., 733 F.2d 646, 651 (9th Cir.1984).

IT IS, THEREFORE, HEREBY ORDERED that summary judgment be entered in favor of the moving defendants and against the plaintiff as to the first and second claims for relief found in the complaint herein.

IT IS FURTHER ORDERED that the third claim for relief be dismissed without prejudice.