author: CON ABO Y, District Judge.

text:
    Paula PRINGLE, Petitioner, v. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, et al., Respondents.
    Civ. No. 83-0364.
    United States District Court, M.D. Pennsylvania.
    March 11, 1985.

      Thomas M. Place, Carlisle, Pa., for petitioner.
    Theodore B. Smith, Carlisle, Pa., for respondents.
   MEMORANDUM AND ORDER

CON ABO Y, District Judge.

I. PROCEDURAL BACKGROUND

We consider herein Petitioner’s claim that Title 18 Pa.C.S.A. § 5503(a)(3), a portion of the Pennsylvania Disorderly Conduct Statute, is violative of the 1st and 14th Amendments to the United States Constitution for reasons of overbreadth and vagueness. Although not currently incarcerated, Petitioner faces the prospect of ten (10) to thirty (30) days in the Cumberland County Jail should her current appeal to the Pennsylvania Superior Court fail. She seeks, therefore, a writ of habeas corpus from this Court on the constitutional grounds alluded to previously.

This claim arose from Petitioner’s arrest on October 1, 1979 for violation of the statute in question. She was convicted in the Court of Common Pleas of Cumberland County and appealed on the aforementioned constitutional grounds to the Pennsylvania Superior Court. That Court, per its opinion of September 3, 1982, ruled that the statute was constitutional and cited Pennsylvania decisional law in support of its ruling. Thereafter, Petitioner attempted to challenge the constitutionality of the statute by requesting allowance of appeal to the Pennsylvania Supreme Court. The Pennsylvania Supreme Court declined to hear this appeal on January 18, 1983.

Petitioner then filed a second appeal in the Pennsylvania Superior Court. This second appeal did not raise a constitutional issue, but alleged violations of the Pennsylvania Sentencing Code. While this second appeal was pending, Petitioner filed an application for a writ of habeas corpus in this Court in which she resumed her claim of a constitutional defect in the statute. Following a recommendation of a United States Magistrate, we dismissed Petitioner’s action without prejudice due to our perception that the pendency of her second appeal to the Pennsylvania Superior Court precluded, for the time being, federal habeas corpus relief. On July 5, 1984, the Court of Appeals for the Third Circuit reversed our judgment of dismissal. 744 F.2d 297. This reversal was predicated on the fact that the Pennsylvania Supreme Court, by its denial of certiorari on Petitioner’s federal constitutional claim, had effectively foreclosed any hope Petitioner had of succeeding on this theory at the state level. Moreover, since Petitioner’s remaining appeal to the Pennsylvania Superior Court had no constitutional aspect, the outcome thereof would shed no light on her claim that the statute which she was convicted under was constitutionally defective. Therefore, the Court of Appeals for the Third Circuit remanded this case to us for a determination as to the constitutionality of Title 18 Pa.C.S.A. § 5503(a)(3).

II. FACTUAL SUMMARY

The incident which precipitated this claim occurred on September 28, 1979 in the Borough of Shippensburg. The record reveals that the following facts are undisputed. Petitioner was in the vicinity of. Shoemaker’s Bar on North Earl Street in Shippensburg when she came upon an altercation between one Tony Neil and four local police officers. As the police struggled to place handcuffs on the resisting Mr. Neil, who had been a high school classmate of the Petitioner, she took umbrage at what she regarded as the officer’s use of excessive force and began villifying the officers. To be specific, she urged them to “let him go” and referred to them as “goddamn fucking pigs” several times in a voice loud enough to be heard by many members of a sizeable crowd of onlookers. While the potential of this conduct to incite violence against the officers seems obvious, the arresting officers themselves testified that Petitioner’s words had no visible effect on the crowd. Nevertheless, once they had subdued Mr. Neil, they also took Petitioner into custody and she was charged with violating the statute which is the focus of our inquiry.

III. ARGUMENT

Petitioner attacks Title 18 Pa.C. S.A. § 5503(a)(3) on four (4) grounds: A) that it is unconstitutionally vague and over-broad on its face since it is not limited to “fighting words” as defined by the United States Supreme Court; B) that the term “obscene” as used in the statute is unconstitutionally vague and overbroad; C) that Petitioner's speech was neither obscene nor did it constitute “fighting words”; D) that the State courts erred in finding that the Petitioner’s words created a clear and present danger of disorder. We consider these grounds seriatim.

We note, initially, that even fundamental rights, one of which is the freedom of expression as guaranteed by the First Amendment, may be abridged when a state can demonstrate a compelling interest in doing so. Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942). We note, too, that all powers not delegated expressly to the United States are retained by the various states pursuant to the Tenth Amendment. Salient among these retained powers is the police power, that broad authority of the states to regulate the conduct of their citizens. This authority is so extensive that the public safety, health, morality, peace and quiet, and law and order do not exhaust its scope. Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954). Thus, one may readily see that a citizen who challenges the constitutionality of a state statute enacted to implement this broad-based police power must carry a substantial burden.

Since Petitioner contends that one of her fundamental rights, the right to freely express herself, has been abridged by a statute which is defectively vague and overbroad on its face, we are compelled to examine the statute without reference to Petitioner’s conduct. Even if we assume, arguendo, that the statute was constitutionally applied to Petitioner, she may still prevail by showing that the statute is susceptible to unconstitutional application to others. Thornhill v. Alabama, 310 U.S. 88, 98, 60 S.Ct. 736, 742, 84 L.Ed. 1093 (1940). This idea of allowing a litigant to assert the rights of others is, of course, somewhat unusual since the general precept is that constitutional rights are personal and may not be asserted vicariously. McGowan v. Maryland, 366 U.S. 420, 429-30, 81 S.Ct. 1101, 1106-08, 6 L.Ed.2d 393 (1961). However, due to the perception that First Amendment rights are especially delicate, an exception has been carved out to allow litigants “to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973). It is plain, therefore, that Petitioner’s challenge to the facial validity of the statute compels us to analyze it without reference to the conduct she manifested.

A

We must now determine whether the challenged statute is so facially vague and overbroad as to be unconstitutional. The doctrine of vagueness

... requires legislatures to set reasonably clear guidelines for law enforcement officials and triers of fact to prevent arbitrary and discriminatory enforcement. Where a statute’s literal scope, unaided by a narrowing state court interpretation, is capable of reaching expression sheltered by the First Amendment, the doctrine demands a greater degree of specificity than in other contexts.

Smith v. Goguen, 415 U.S. 566, 572-73, 94 S.Ct. 1242, 1246-47, 39 L.Ed.2d 605 (1974).

Since our review of cases cited by the Respondent persuades us that the courts of Pennsylvania have never provided a viable “narrowing interpretation” of this statutory subsection, it must stand or fall on its literal language. The portion of the statute at issue reads:

§ 5503. Disorderly conduct
(a) Offense defined. A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
(3) uses obscene language, or makes an obscene gesture;

Statutory language must, of course, be flexible to some degree to take into account the infinite diversity of human conduct. This is especially so in the criminal context.

The root of the vagueness doctrine is a rough idea of fairness. It is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited.

Colten v. Kentucky 407 U.S. 104, 110, 92 S.Ct. 1953, 1957, 32 L.Ed.2d 584 (1972). Whether a statute provides the requisite “fair warning” can be determined from whether it does “give a person of ordinary intelligence a reasonable opportunity to know what is prohibited ...” Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972). Thus, just as facial vagueness analysis forces us to ignore Petitioner’s conduct, it forces us to ignore her level of intelligence as well.

Petitioner argues that since the statute purports to prohibit speech which does not constitute “fighting words”, those which by their very utterance inflict injury or tend to incite an immediate breach of the peace, Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942), the statute attempts to prohibit protected speech. Moreover, Petitioner acknowledges that Chaplinsky, supra at 571-72, 62 S.Ct. at 768-69, authorizes states to regulate types of speech other than “fighting words”, to wit:

... it is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words ... It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

Respondent had seized upon this quotation to argue that Petitioner’s interpretation of Chaplinsky is far too restrictive.

Petitioner attempts to discredit this broader view of Chaplinsky by showing that recent Supreme Court decisions, most notably Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972), have limited its application to its “fighting words” aspect. This, Petitioner urges, can only mean that the other classes of speech which Mr. Justice Murphy stated were obviously subject to state regulation — lewd, profane, libelous, obscene — in Chaplinsky are now to be considered within the protection of the First Amendment. We cannot agree. Our reading of Gooding, supra, persuades us that the only reason for the majority’s preoccupation with “fighting words” in that case was the singular reliance of the appellant on the proposition that the challenged Georgia statute was applicable only to “fighting words”. Since it was a one dimensional argument, it provoked a one dimensional response from the Court. Neither Gooding nor its progeny expressly holds that the categories of unprotected speech enumerated in Chaplin-sky have been restricted to “fighting words” alone. Moreover, we are loathe to find that the Supreme Court would have so drastically limited the police power of the States by implication.

Beyond the argument raging over the scope of Gooding, we are impressed by Respondent’s argument that this statute is primarily designed to regulate conduct and that any abridgement of free speech caused thereby is bpth incidental and insubstantial. We note, too, that

... facial overbreadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from “pure speech” toward conduct and that conduct — even if expressive — falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect — at best a prediction — cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.

Broadrick, supra, 413 U.S. at 615, 93 S.Ct. at 2917, citing Alderman v. United States, 394 U.S. 165, 174-75, 89 S.Ct. 961, 966-68, 22 L.Ed.2d 176 (1969).

Becaüse our reading of the challenged Pennsylvania statute is consistent with Respondent’s position that it is not designed to regulate “pure speech”, but is designed, rather, to limit certain speech uttered with a particular intent, we find that it is not so substantially overbroad as to render it unconstitutional. The Supreme Court has “... repeatedly expressed its reluctance to strike down a statute on its face where there were a substantial number of situations to which it might be validly applied. Thus, even if there are marginal applications in which a statute would infringe on First Amendment values, facial invalidation is inappropriate if the remainder of the statute ... covers a whole range of easily identifiable and constitutionally proscribable ... conduct ...” Parker v. Levy, 417 U.S. 733, 760, 94 S.Ct. 2547, 2563, 41 L.Ed.2d 439 (1974), citing CSC v. Letter Carriers, 413 U.S. 548, 580-81, 93 S.Ct. 2880, 2897-98, 37 L.Ed.2d 796 (1973). We conclude that, on its face, 18 Pa.C.S.A. § 5503(a)(3) is such a statute.

B

Petitioner’s second objection to this statute is predicated on the claim that the word “obscene” as used therein is vague and overbroad. She opines that because the statute does not define “obscene” and the term has not been given a limiting construction by Pennsylvania Courts, speakers, policemen, and courts are left in suspense as to its parameters. Petitioner further characterizes § 5503(a)(3) as a “standardless sweep” of the type proscribed by the decision in Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983).

Respondent argues that the statute contains its own limiting language, an intent requirement, without which none of the subsections become operative. Thus, only obscene speech uttered with an intent to cause “public inconvenience, annoyance or alarm” or uttered in reckless disregard of the likelihood of such disruption is proscribed. Since the state has a compelling interest in preventing such breaches of the peace, Respondent contends that no obscene speech uttered under the circumstances described in the statute could possibly enjoy the protection of the First Amendment. We agree.

As previously noted, if we are to expect legislatures to exhibit total precision in drafting criminal statutes, few criminal statutes will survive. This statute, in our view, more than satisfies the “rough idea of fairness” mandated in Colten, supra. We have no reservation whatever that upon reading this statute the average person would have a very clear idea of what modes of conduct it prohibits.

C

Petitioner also argues that this statute was unconstitutionally applied to her because her words were neither obscene nor susceptible to being characterized as fighting words. A finding that her words fit into either category would be fatal to this portion of her claim. Since we find that her words were “fighting words” as defined in Chaplinsky and refined in Gooding, we need not reach the issue whether they were obscene.

Petitioner’s position is that Gooding announced a revision in the standard for deciding whether speech constitutes “fighting words”. The new standard is a subjective one. We are no longer to consider whether certain words would likely provoke a violent reaction from an ordinary citizen. We are, rather, to determine whether certain words would likely provoke a violent reaction from the addressee. Petitioner argues that since her words were addressed to police officers — individuals who by virtue of their occupation are trained to remain dispassionate under pressure — that we cannot logically conclude that her words were likely to provoke violence from these addressees. In other words, Petitioner seems to be implying that it is virtually impossible to find the phrase which, when addressed to a police officer, will constitute “fighting words”. Common sense dictates otherwise.

Police officers, notwithstanding their devotion to their duty and the excellence of their training, are human beings and subject to the same failings as butchers, bakers and candlestick makers. We do not see the logic in finding that police officers can be expected to remain stoic in the face of vitriolic comments that one would expect to elicit violence from someone else. Moreover, we think it contrary to public policy to send out a signal to the general public that policemen are fair game for any amount of verbal abuse some may choose to heap upon them. In short, if calling someone a “goddamn fucking pig” does not exemplify “fighting words”, we are hard pressed to imagine what words could be so construed.

D

Petitioner’s final basis for attacking this statute is that it could not be used to declare her a disorderly person due to the fact that the trial court perceived her conduct as creating “a clear and present danger that bystanders may have been enticed into interfering with the arrest that was taking place.” The trial court’s unfortunate choice of these words provoked Petitioner to a lengthy explication of the “clear and present danger” doctrine. This doctrine, most recently expressed in Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 320 (1969), sets out a test for determining when protected speech becomes advocacy of illegal action. Since we have already found that Petitioner’s speech was of the unprotected variety, we need not consider whether she was encouraging others to engage in illegal activity.

IV

In summation, we find: (a) that the challenged statute is not facially vague or over-broad; (b) that the word “obscene” as used therein is not vague or overbroad; (c) that the statute was constitutionally applied to Petitioner; and (d) that the “clear and present danger” doctrine has no application to this case. An appropriate Order shall be issued.

ORDER

AND NOW, this 11th day of March, 1985, IT IS ORDERED as follows:

1. Pursuant to the remand of this case by the Third Circuit Court of Appeals, we declare that 18 Pa.C.S.A. § 5503(a)(3) passes constitutional muster and deny Petitioner’s application for a writ of habeas corpus.

2. Judgment in Respondents’ favor is hereby entered and the Clerk of Courts is directed to close this case.

      . Commonwealth v. Mastrangelo, 489 Pa. 254, 414 A.2d 54 (1980).

      . Estimates varied from 30 to 50 people.

      . We recognize that Petitioner challenges this statute on both vagueness and overbreadth grounds. However, as she points out in her brief (docket item number 23 at page 9), these "distinct analytical tools” frequently merge in the First Amendment context. Lewis v. New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974). That is the case here. Any over-breadth of this statute will necessarily be a result of vagueness.

      . Petitioner also contends that she did not address any of the officers individually. Even were that so, however, we conclude that any of them could have logically perceived that he was being addressed.


source: Caselaw Access Project

author: WALTER S. SMITH, Jr., District Judge.

license: Public Domain

text:
    AYNESWORTH, Anne LaGrange, Hambleton, Kimberly Ann, Richards, Penelope Hight, Wood, Barbara, McDonald, Elizabeth Candace, Overton, Carolyn Panter, and Weaver, Mary M., et al., Plaintiffs, v. BEECH AIRCRAFT CORPORATION; Pratt & Whitney Canada, Inc., a subsidiary of United Technologies Corporation; Pratt & Whitney Aircraft of Canada, Ltd.; United Aircraft of Canada, Ltd.; TRW, Inc., d/b/a Hartzell Propeller Products Division: Hartzell Propeller, Inc.; Woodward Governor Co.; Texas-Aero, Inc.; Riteway Radio, Inc.; Rockwell International Corporation; Rockwell-Collins International, Inc.; and Mitchell Industries, Inc., Defendants.
    No. W-84-CA-208.
    United States District Court, W.D. Texas, Waco Division.
    March 11, 1985.

      R. Doak Bishop and Kim J. Askew, Hughes & Hill, Dallas, Tex., Wayne Fisher, Fisher, Gallagher, Perrin & Lewis, Joseph D. Jamail, Jamail & Kolius, Houston, Tex., Broadus Spivey, Spivey & Grigg, P.C., Austin, Tex., Lyndon Olson, Olson, Stem, Farr & Buenger, Waco, Tex., for plaintiffs.
    Charles McGregor, McGregor & White, Waco, Tex., Richard H. Caldwell, Mayor, Day & Caldwell, Houston, Tex., Jim E. Cowles, Cowels & Thompson, Dallas, Tex., for defendants.
   MEMORANDUM OPINION AND ORDER

WALTER S. SMITH, Jr., District Judge.

This matter is before the Court on Plaintiffs’ Motion to Remand an action removed to this Court by Defendant Beech Aircraft on January 2, 1985. After reviewing the excellent briefs and responses filed by counsel for both sides, and having heard oral arguments presented on the issue of remand, the Court is of the opinion that the motion to remand should be granted for the reasons set forth below.

I. FACTUAL SUMMARY

The present case is the result of the consolidation of two cases originally filed in the 74th Judicial District Court of McLennan County. These two suits arose from an airplane crash on May 5, 1982, which took the lives of seven men. Both suits involved causes of action based on the negligence and strict liability provisions of the Texas Wrongful Death Statute.

The original actions named Beech Aircraft Corporation (a Delaware corporation whose principal place of business is Wichita, Kansas) and Texas-Aero, Inc. (a Texas corporation) as defendants. All plaintiffs are Texas citizens and residents. Prior to trial, Defendant Beech filed third-party actions against Riteway Radio, Inc., and Mitchell Industries, Inc., both of which are Texas corporations. Plaintiffs subsequently also added these two corporations as defendants. Trinity Universal Insurance Company (a Texas Corporation) intervened in this action.

Trial commenced on October 2, 1984, in the State District Court. After approximately ten weeks of testimony and evidence, the case was submitted to the jury for its deliberations and verdict. On December 6, 1984, upon motion of Defendant Beech, a mistrial was declared after the jury remained deadlocked for several days. On December 18, 1984, Beech filed a petition for removal of the case to this Court. None of the remaining defendants joined in the removal action. Plaintiffs filed a motion to remand this cause on January 2, 1985, challenging the removal action. This Court held a hearing on February 12, 1985, to resolve the question of whether the action was properly removed.

II. REMOVAL

The statute providing for removal on the basis of diversity of citizenship reads, in part as follows:

[A]ny other such action [other than that based on federal question] 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 was brought.

28 U.S.C. 1441(b).

Removal under this statute must satisfy both the requisites of a $10,000 amount in controversy and diversity of citizenship. The amount in controversy in this cause well exceeds the $10,000 minimum required by the statute. Therefore, the Court must ascertain whether there exists diversity of citizenship for this cause to be properly removed.

When removal is predicated on diversity of citizenship, the diversity must exist both at the time the original action is filed in state court and at the time removal is sought. Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction, § 3723 (1976). When viewing the alignment of parties at the time the original state action was filed, it is obvious that no diversity existed since plaintiffs and all defendants, except Beech Aircraft, are citizens and residents of the State of Texas.

“However, diversity is tested only at the time of removal if such removal is premised on the plaintiff's voluntarily dropping the non-diverse defendant, although diversity did not exist among the parties at the commencement of the state court action.” Heniford v. American Motors Sales, Corp., 471 F.Supp. 328, 334 (D.S.C.1979). Therefore, the Texas defendants must have been dropped from the state court action if removal is proper. Beech claims that the Texas defendants were dropped from the suit during closing arguments of the state trial when plaintiffs’ counsel abandoned any claim against the Texas defendants and asked the jury to return a verdict solely against Beech. If the plaintiffs did, in fact, abaondon their claims against the Texas defendants, removal could be proper on the basis of diversity of citizenship. See Heniford, supra.

Alternatively, Beech asserts that the resident defendants are merely nominal defendants which must be realigned with the plaintiffs and their formal joinder in the petition for removal is not necessary.

All defendants must join in the removal petition. 28 U.S.C. § 1446(a). However, formal or nominal parties are excluded from this requirement. Tri-Cities Newspapers, Inc., v. Tri-Cities Pressman & Assistants Local 349, 427 F.2d 325, 327 (5th Cir.1970). If the resident defendants are found to be nominal parties, then the petition for removal would be proper on this basis.

A. Realignment

“Before determining removability under Section 1441(b) on the basis of diversity of citizenship, the Court will realign the parties according to their true interest, as it would were the case brought into federal court originally.” Heniford v. American Motors Sales, Corp., supra at 328, citing Wright, Miller and Cooper, Federal Practice and Procedure: Jurisdiction, § 3723 (1976). The Supreme Court set forth the test for determining the proper alignment of parties in diversity cases in the case of Indianapolis v. Chase National Bank, 314 U.S. 63, 62 S.Ct. 15, 86 L.Ed. 47 (1941), stating:

To sustain diversity jurisdiction, there must exist an “actual” “substantial” controversy between persons of different states, all of whom on one side of the controversy are citizens of different states from all parties on the other side. Diversity jurisdiction cannot be conferred upon the federal courts by the parties’ own determination of who are plaintiffs and who defendants. It is our duty, as it is that of the lower Federal Courts to “look beyond the pleadings and arrange the parties according to their sides in the dispute.”
Litigation is the pursuit of practical ends, not a game of chess. Whether the necessary “collision of interest” exist, is therefore, not to be determined by mechanical rules. It must be ascertained from the “principle purpose of the suit” and the “primary and controlling matter in dispute.”

314 U.S. 63, 69-70, 62 S.Ct. 15, 16-17, 86 L.Ed. 47.

The principal purpose of this lawsuit is to hold liable the parties whose negligence was responsible for the resulting airplane crash. Plaintiffs alleged the crash was caused by a malfunction in the plane itself from either the propeller or the autopilot systems. The claim that the propeller system malfunctioned was asserted against Defendants Texas-Aero, Inc. (the owner and lessor of the plane) and Beech (the manufacturer of the aircraft). The autopilot system malfunction theory was asserted against Defendants Riteway Radio, Inc., and Mitchell Industries, Inc. (the Texas resident defendants).

Resident defendants are formal or nominal parties only if there is no cause of action or claim for relief stated against them by anyone. Saxe, Bacon & Bolan, P.C. v. Martindale-Hubbell, 521 F.Supp. 1046, 1048 (S.D.N.Y.1981). The Fifth Circuit has declared the test of whether a party is a nominal one to be “if his role in the law suit is that of a depository or stakeholder____” Tri-Cities, supra at 327, quoting Colman v. Shimer, 163 F.Supp. 347, 350 (W.D.Mich.1958). The determination of whether a named defendant is a nominal party must depend on the facts of each case. Tri-Cities, supra at 327.

The Court finds that the resident defendants are not nominal parties in this cause. Their interests are much greater than that of a “depository” and “stakeholder.” Each of the Texas defendants is subject to having a verdict rendered against it, mandating payment of many- thousands of dollars to the plaintiffs. To be sure, plaintiffs stronger theory seems to dictate recovery from Beech primarily, but this is not reason enough to classify the other defendants as nominal parties. The fact that one defendant may be entitled to indemnity from another should they be found liable does not justify being termed a nominal party. “That one defendant may benefit should plaintiff prevail against another defendant, does not provide a sufficient basis for realignment.” Irving Trust Co. v. Century Export & Import, S.A., 464 F.Supp. 1232 (D.C.N.Y.1979).

For these reasons, this court does not align the parties in a fashion different from that at trial. The Court finds the defendants, the true parties of interest, to be Beech, Texas-Aero, Inc., Riteway Radio, Inc., and Mitchell Industries, Inc. Defendants Texas-Aero, Inc., Mitchell Industries, Inc., and Riteway Radio, Inc. did not join in the petition for removal as required by 28 U.S.C. 1446(a). The Court finds the petition for removal to be improper based on Beech’s claims that the defendants were nominal parties.

The Court will now proceed to answer the question of whether the plaintiffs abandoned their claims against the resident defendants.

B. Abandonment

If the plaintiff voluntarily dismisses, discontinues, or in any way abandons, the action as to the resident joint defendant, the cause then becomes removable, and may, upon prompt action, be removed by the non-resident defendants who have been served. Stamm v. American Telephone & Telegram Co., 129 F.Supp. 719 (W.D.Mo.1955); Heniford, supra at 334 (citations omitted).

In support of the abandonment claim, Beech cites the following excerpts from plaintiff’s closing arguments:

No longer is there any issue or dispute as between the plaintiffs and Beech as to whether it was a malfunction or defect. Beech on the one hand says the malfunction or defect was the result of some autopilot malfunction which caused Col. Weaver to get dizzy when he got in the clouds, which caused this pilot of some 7,500 hours to then lose control of the aircraft and crash the airplane and kill himself and his six passengers.
We say that the evidence clearly demonstrates that’s not the case. The evidence clearly demonstrates this aircraft crashed as the result of the malfunction of the propeller system, the right propeller, the right propeller blade system, and that’s what the evidence clearly demonstrates, and that’s what I want to discuss at some length with you this morning.

Petition for Removal, Exhibit, D, Opening Final Argument of Wayne Fisher at 4.

Ladies and Gentlemen of the Jury, I then suggest that from the evidence, Special Issue # 7, “Was the autopilot or its components defective?” I believe that even though Beech sued the autopilot people, and if you conclude that the autopilot was, in fact, defective, and the cause of this, we expect to receive that and hopefully receive a judgment against the autopilot people in this case.
But I believe in all honesty and integrity, I believed that from the evidence, that should be answered, “No”, that it was not defective. Why? Because the evidence is the propeller system is what caused the airplane to crash and is the thing which set into motion the events that you are asked about back in Special Issues 1, 2, 3 & 4. I think you should answer “No” to Special Issue #7, “No, that it was a producing cause.”
These issues — Was Texas Aero and Rite-way Radio Company negligent? Again from the evidence — Where is the evidence that Texas Aero was negligent in this case and caused this airplane to crash? What did it have to do with the propeller system malfunction?

Petition for Removal, Exhibit D, Opening Final Argument of Wayne Fisher at 107.

But I also believe in the integrity of the judicial system and that lawyers, as officers of the Court, have an obligation to not stand in front of juries and argue something, just to be arguing, if it has no basis and fact. I see no basis and fact under this evidence for any answer other than the percentage fault was 100% Beech Aircraft Corporation, Zero Mitchell, Zero Riteway, Zero Texas Aero, Pratt and Whitney, Hartsell, Woodward-Weaver because ladies and gentlemen of the jury, I respectively suggest to you your choice today is: Was there a propeller malfunction?
If you believe, on the other hand, that, in fact, it was the autopilot, instead of the propeller malfunction, if you disregard the secondary low pitch warning light and the stop leading into deformation of the vertical tail, disregard Mr. Wetzler’s findings that he laboriously labored over an order to explain to you, then you have to answer differently. But I believe from the evidence, from the evidence, because there is no evidence that anybody other than Beech Aircraft Corporation was a responsible party for this malfunctioning propeller system.
Mr. Jamail asked repeatedly these witnesses over and over again, that sometimes I know its repetitious and boring to hear these questions asked over and over again. But the reason for it is at this stage in the case, they were asked: Is it Beech’s responsibility 100%? Every witness responded “Yes, it’s Beech’s 100% responsibility as the airplane manufacturer. They’re the ones responsible for this propeller system.” And that why I’m suggesting here that Special Issue # 15, from the evidence — and all this is is suggestion — you may choose to disregard it and answer it completely differently. That is certainly your prerogative.

Petition for Removal, Exhibit D, Opening Final Argument of Wayne Fisher at 110 and 111.

Also, Beech cites from the opening final argument of Joe Jamail as follows:

I believe Issues 7-14 should be answered “No”. Mr. Fisher has told you, we had to sue. They forced me to do that because I didn’t know what Beech knew about those people. And in order to protect all of these people, we got together and they forced this on us, so we could protect those children’s rights, and those women’s rights and those parent’s rights.
But as I’ve seen this evidence unfold, I think in justice and in fairness, Issues 7-14, should be answered “No”.
Fifteen should be answered, “100% Beech.”

Petition for Removal, Exhibit D, Opening Final Argument of Joe Jamail at 11.

The primary consideration in determining whether Plaintiff has abandoned a claim against a defendant is whether or not the Plaintiffs’ act in abandonment was voluntary. Stamm v. American Telephone & Telegraph Co., 129 F.Supp. 719 (W.D.Mo.1955); Heniford, supra at 335. “The technicality of how plaintiff’s intention is expressed is of no moment — it is the expression of the intent by plaintiff which makes the case removable.” Erdey v. American Honda Co., 96 F.R.D. 593 (N.D.La.1983).

Beech relies extensively on the Heniford case to support his abandonment claim. That case similarly involves statements made in closing arguments which the Court held to be an abandonment of plaintiff’s claims against the sole resident defendants. The abandonment occurred in the following remarks made by Mr. James P. Stevens, Sr.:

Well, let’s look a little bit further at Ralph. You know — and look here, don’t give a verdict against Ralph. We’re not actually suing Ralph because we found out now — found out when this case came on, that Ralph was telling the truth by the records in this particular case
Hj Hs * * * #
I don’t want you to give a verdict against Ralph Cooke. No, we don’t want, a verdict against that, because we have now determined that this man is telling the truth and he has all along ...

Heniford, supra at 332.

The Court found an expressed announcement by plaintiffs to abandon their claim against the defendant, Ralph Cooke, when counsel directed the jury not to return a verdict against him. After the abandonment had occurred, and there no longer remained any actual, substantial controversy between the plaintiffs and defendant, Ralph Cooke, the Court aligned Mr. Cooke with the plaintiff for purposes of determining diversity of citizenship. Accordingly, the Court, found removal to be proper in this case since diversity of citizenship did exist.

This Court, therefore, must focus on whether the plaintiff’s conduct in this case evidenced an express intention by the plaintiffs to abandon their claims against the resident Texas defendants. It is apparent from the statements in closing arguments that plaintiffs concentrated primarily on urging the jury to return a verdict based upon the propeller malfunction theory. Even though plaintiffs strongly urged that Beech should be found to be solely responsible, this Court cannot find that they entirely and expressly abandoned their claims against the Texas defendants. It is clear from reviewing the statements of counsel that plaintiffs offered an alternative to the jury — that of finding the Texas defendants liable on either the autopilot malfunction theory or the propeller system malfunction theory. At no time did plaintiffs state that they absolutely did not want the jury to return a verdict against the Texas defendants. Although Mr. Wayne Fisher admitted that he saw no basis under the evidence for returning a verdict against the Texas defendants and that Beech should be found to be 100% responsible, he further stated that the jury could find that the autopilot was the cause of the malfunction and, if so, they should return a verdict upon that basis. The Court finds that plaintiffs were willing to accept a verdict on the autopilot malfunction theory even though they did not agree the evidence showed it was the cause of the crash. Therefore, there was no express, voluntary abandonment of claims against the Texas defendants. The Heniford case is distinguishable from the present case. In Heniford, “plaintiffs extinguished their claim against the resident defendant in explicitly instructing the jury not to return a verdict against him.” Heniford, supra at 335. Counsel in Heniford did not offer the jury an alternative basis for returning a verdict against defendant, Ralph Cooke, as counsel did in the present case by allowing the jury to return a verdict on either of two theories.

“The paramount consideration in determining whether the dropping of the resident defendant as an adverse party renders a case removable is if such resulted from the voluntary act of the plaintiff.” Heniford, supra at 335 (citations omitted). This Court does not find that the plaintiffs voluntarily dropped their claims against the resident defendants.

Beech also supports its abandonment argument by urging that the plaintiffs’ evidence concentrated solely on the propeller system malfunction. However, this court notes that plaintiffs’ trial strategy could have been to present evidence primarily on the propeller malfunction, knowing (or hoping) that Beech would present substantial evidence on the autopilot theory. Therefore, plaintiffs were allowed to primarily focus on Beech’s liability in manufacturing a defective propeller system. The fact that Beech presented the evidence, or most of the evidence, on the autopilot theory does not amount to a voluntary dismissal of the plaintiffs of a claim on this basis.

The Court does not find that abandonment occurred in this case and refuses to align the resident defendants with the plaintiffs. No diversity jurisdiction exists in this case and it was therefore improperly removed to this court.

C. Waiver

Plaintiffs urge that defendant Beech waived its right to removal by waiting until jury deliberations had ended in a mistrial before filing its petition for removal. Beech replies that it was required to wait until a transcript of the closing arguments was completed for two reasons. First, that 28 U.S.C. § 1446(b) requires a written document which constitutes notice that removal is allowable; and second, that before it had the transcript it could not file a petition for removal in compliance with F.R.C.P. 11. This Court agrees with neither such argument because Section 1446(b) does not require a written pleading creating the right to remove, Heniford, supra; and it is not conceivable that Beech’s attorneys did not immediately recognize the asserted abandonment by Plaintiffs’ attorneys. To decide otherwise, this Court would have to assume that Beech’s attorneys did not listen to Plaintiffs’ argument. Because of the calibre of Beech’s attorneys, as observed by this Court, no such assumption can be made.

The right to remove pending litigation to federal court is an important right; but it can be waived. A defendant simply cannot____“experiment on his case in the state court, and, upon an adverse decision, then transfer it to the Federal court.” Rosenthal v. Coates 148 U.S. 142, 13 S.Ct. 576, 37 L.Ed. 399 (1893); Haun v. Retail Credit Co. 420 F.Supp. 859 (W.D.Pa.1976); In Re 73rd Precinct Station House, 329 F.Supp. 1175 (E.D.N.Y.1971)

It seems enlightening to consider Beech’s position had the jury reached a decision unfavorable to Beech. Could Beech then properly remove its case to federal court and avoid a state court judgment? This Court holds that in that event Beech would have waived its right to remove by failing to immediately advise the state court of its intention and to immediately file its petition for removal; so too has Beech waived its right to remove in the present case by “experimenting with its case in state court” to the extent of waiting until a mistrial was declared before seeking removal.

D. Attorneys’ Fees

Plaintiffs asked this Court to award attorneys’ fees and court costs against Beech, based on its bad faith removal of this action. An award of attorney fees is appropriate in cases in which a party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons. Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 257-259, 95 S.Ct. 1612, 1621-1622, 44 L.Ed.2d 141 (1975). See also Peltier v. Peltier, 548 F.2d 1083 (1st Cir.1977). Attorneys’ fees have also been awarded when a petition for removal had no “substantial basis.” Kasprowicz v. Capital Credit Corp., 524 F.Supp. 105 (E.D.Mich.1981). Plaintiffs seek attorneys’ fees even if the Court finds no bad faith on the part of Beech on the basis that the petition for removal is meritless. The court finds the abandonment theory has no support in the record, the Texas defendants were not nominal parties, and that Beech’s petition for removal is without a substantial basis. However, this Court declines to award attorneys’ fees in this cause because Beech did not act in bad faith, and unique issues of at least arguable merit were presented by Beech. Defendant Beech Aircraft Corporation shall be assessed all costs and disbursements incurred by the plaintiffs by reason of these removal proceedings. Accordingly,

IT IS, THEREFORE, ORDERED that plaintiff’s motion to remand this cause to the 74th Judicial District Court is GRANTED. Beech Aircraft is directed to pay all costs and disbursements incurred by the plaintiffs by reason of the removal proceedings.

      . “Aynesworth, et al. v. Beech Aircraft Corporation, et al.," Cause Number 83-577-3, filed on February 23, 1983 and "Weaver, et al. v. Beech Aircraft Corporation, et al.” Cause Number 83-779-3, filed on March 16, 1983.

      . TEX.CIV.CODE ANN. § 4671, et seq. (Vernon 1940 and Supp.1941 to 1985.)

      . A new trial was scheduled for June 10, 1985.


author: OWENS, Chief Judge.

text:
    CHARTER MEDICAL CORP., Beltway Community Hospital, Inc., Charter Surburban Hospital, Inc., Charter Surburban Hospital of Mesquite, Inc., Middle Georgia Hospital, Inc., Plaintiffs, v. Margaret M. HECKLER, Secretary of Health & Human Services and Carolyne K. Davis, Administrator of the Health Care Financing Administration, Defendants.
    Civ. A. No. 84-473-2-MAC.
    United States District Court, M.D. Georgia, Macon Division.
    March 22, 1985.
    F. Kennedy Hall, Macon, Ga., Glen A. Reed, Richard Shackelford, Atlanta, Ga., for plaintiffs.
    Frank L. Butler, III, Macon, Ga., Susan Lee, DHHS, Atlanta, Ga., for defendants.
   AMENDED ORDER

OWENS, Chief Judge.

Plaintiffs filed a motion for summary judgment and a motion for expedited review. A hearing was held on the motions on March 8, 1985.

Plaintiffs challenge the validity of 42 C.F.R. § 405.452(a)(1)(H) (1984), which is known as the Malpractice Rule. The Rule governs the reimbursement of malpractice insurance premiums to hospitals treating Medicare patients. This issue has been litigated in at least twenty-two other district courts, seventeen of which have held the Rule invalid. Only five district courts have held that the Malpractice Rule is valid. The plaintiff-hospitals appealed each of these five decisions. Of the opinions that have been appealed, one circuit court remanded the case to the district court, Walter O. Boswell Memorial Hospital, and another circuit court reversed and remanded to the district court, Humana of Aurora, Inc. Two other district court cases, Cumberland Medical Center and Athens Community Hospital, have been consolidated on appeal and have not yet been decided. In addition, Normandy Osteopathic-North Hospital is pending in the Eighth Circuit.

A circuit court has issued an opinion and mandate holding that the Malpractice Rule is invalid. Abington Memorial Hospital v. Heckler, 750 F.2d 242 (3rd Cir.1984).

The district courts that held the Malpractice Rule invalid did so for several reasons. Some courts held that defendants violated the Administrative Procedure Act’s notice and comment requirement; other courts held that the Malpractice Rule is arbitrary and capricious; still other courts held the Malpractice Rule violates the Medicare Act. These prior opinions fully discuss the Malpractice Rule and its promulgation. There is simply no need for this court to repeat the reasoning of the cases cited above; to do so would be redundant and contrary to the principle of judicial economy. Of the prior district court opinions, the most complete opinion is Judge Fullam’s in Abington Memorial Hospital v. Heckler, 576 F.Supp. 1081 (E.D.Pa.1983). The court has read the voluminous record, the briefs submitted by the parties, and all the earlier cases. For the reasons so well set forth by Judge Fullam, and affirmed by the Third Circuit Court of Appeals, this court wholeheartedly agrees that the Malpractice Rule is invalid. Plaintiffs’ motion for summary judgment is GRANTED.

Congress directed that hospitals be reimbursed for their “reasonable cost.” 42 U.S. C.A. § 1395f(b) (1983). The most compelling reason for this court’s decision is the lack of a factual nexus between the Malpractice Rule and the hospitals’ malpractice insurance costs. The Rule does not reimburse plaintiff-hospitals for their malpractice insurance costs. The cost incurred in obtaining a liability insurance policy is solely the liability insurance premium paid by the hospital. Hospitals buy medical malpractice insurance at rates based upon the hospitals’ annual bed occupancy. Abington Memorial Hospital, 576 F.Supp. at 1088 n. 7. The premium rates are set by the insurance companies; neither the insured hospitals nor the Secretary determine those rates. Therefore, the cost to the hospital for what the Secretary calls “medical malpractice” is the premium actually paid by the hospital for liability insurance.

If a medical malpractice claim is filed against a hospital, the insurance company pays the individual claimant. The insured hospitals do not pay malpractice claims. The number of such claims and the amount the insurance company paid can obviously affect future liability insurance premiums; however, the number and dollar amount of claims paid by the liability insurance company is unrelated to the Medicare status of the patients. *

The Secretary argues that hospitals pay more insurance premiums for non-Medicare patients than for Medicare patients. While the Secretary would like to shift millions of dollars of hospital costs to non-Medicare patients, there is no factual support for the Secretary’s assertion that “this regulation ... is grounded on a direct calculation of the costs incurred in furnishing health care to Medicare beneficiaries.” 44 Fed.Reg. 31,642 (1979). The Secretary has ignored the basic facts of how insurance companies operate in the real world.

The remaining issue before the court is an appropriate remedy. Defendants are hereby ENJOINED from the further enforcement of the Malpractice Rule in this case. Defendants’ findings reimbursing the plaintiffs on the basis of the invalid Malpractice Rule are REVERSED. This case is REMANDED to the Provider Reimbursement Review Board, with the instruction that plaintiffs be awarded reimbursement in accordance with this order. These amounts are to be computed using the method of reimbursement in effect prior to the effective date of the Malpractice Rule. See Abington Memorial Hospital, 750 F.2d at 244.

Additionally, as to plaintiff Charter Suburban Hospital of Mesquite, Inc., defendants are ORDERED to recalculate no later than March 31, 1985, the transition period prospective payment rate, after due consideration of any evidence plaintiffs may submit to defendants as to such calculations, and to make the new rafe effective on the first day of that hospital’s next fiscal year (April 1, 1985). As to the other plaintiffs, defendants are ORDERED to make similar recalculations no later than July 31, 1985, and to make the new rates effective on the first day of those hospitals’ respective next fiscal years. Defendants shall make the payments necessary to implement the new rates in accordance with each hospital’s normal schedule of payment. Such recalculations and payments shall not prejudice plaintiffs’ right to appeal such determinations to this court.

Defendants are directed to comply with this ORDER notwithstanding the provisions of 42 C.F.R. § 4Ó5.-474(b)(3)(i)(C)(l)(iv) (1984), which purports to excuse compliance with a judgment and order of this court which is “subject to review ... by a higher reviewing authority.” The defendants’ action in adopting such provisions, as reflected in the Federal Register of August 31, 1984, at 49 Fed. Reg. 34739-40, 34761, insofar as it might conflict with this ORDER or affect the jurisdiction or power of this court to fashion a remedy in this matter, is hereby held to be invalid as in excess of the lawful powers conferred upon the defendants by the Medicare Act, 42 U.S.C. § 1395, et seq., or by any other act of Congress, as an unlawful intrusion upon the lawful powers of this court under Article III of the Constitution of the United States and the acts of Congress relating thereto, and as a violation of plaintiffs’ rights to due process of law under the Fifth Amendment to the Constitution of the United States. See Battaglia v. General Motors Corp., 169 F.2d 254, 257 (2d Cir.1948), cert. denied, 335 U.S. 887, 69 S.Ct. 236, 93 L.Ed. 425 (1948). Defendants are hereby ENJOINED from the further enforcement of such provisions of this regulation in this case.

SO ORDERED, this 22nd day of March, 1985.

      . Arkansas Methodist Hospital v. Heckler, 597 F.Supp. 238 (E.D.Ark.1984); East Jefferson General Hospital v. Heckler, No. 83-4107 (E.D.La. Oct. 18, 1984); Parkway Medical Center v. Heckler, No. 83-1700-Civ-ARONOVITZ (S.D.Fla. Sept. 24, 1984); Mercy Medical Center v. Heckler, No. 3-82 CIV 1724 (D.Minn. Aug. 17, 1984); Menorah Medical Center v. Heckler, No. 83-0822-CV-W-4 (W.D.Mo. July 26, 1984); DeSoto General Hospital v. Heckler, No. 83-1050-B (M.D.La. June 20, 1984); Alexandria Hospital v. Heckler, 586 F.Supp. 581 (E.D.Va.1984); Lloyd Noland Hospital and Clinic v. Heckler, No. CV83-PT-0868-S (N.D.Ala. Apr. 5, 1984); Bedford County Memorial Hospital v. Heckler, 583 F.Supp. 367 (W.D.Va.1984); Albany General Hospital v. Heckler, 584 F.Supp. 614 (D.Or.1984); St. Joseph's Hospital v. Heckler, 583 F.Supp. 1545 (D.Ariz.1984); Humana of Illinois, Inc. v. Heckler, 584 F.Supp. 618 (C.D.Ill.1984) (one page opinion adopting St. James Hospital decision); St. James Hospital v. Heckler, 579 F.Supp. 757 (N.D.Ill.1984); Chelsea Community Hospital v. Heckler, No. 83CV-6126-AA (E.D.Mich. Dec. 20, 1983) (two page opinion adopting Mt. Carmel Mercy Hospital decision); Mt. Carmel Mercy Hospital v. Heckler, 581 F.Supp. 1311 (E.D.Mich. 1983); Abington Memorial Hospital v. Heckler, 576 F.Supp. 1081 (E.D.Pa.1983); aff’d, 570 F.2d 242 (3rd Cir.1984); Metropolitan Hospital, Inc. v. Heckler, No. C-83-502A (N.D.Ga. June 25, 1984).

      . Normandy Osteopathic-North Hospital v. Heckler, No. 83-1687C(1) (E.D.Mo. Dec. 21, 1984), appeal docketed, No. 85-1247 (8th Cir. Feb. 21, 1985); Humana of Aurora, Inc. v. Heckler, No. 83-Z-70 (D.Colo. Sept. 19, 1983) (opinion issued from the bench), rev’d and remanded, 573 F.2d 1579 (10th Cir.1985); Cumberland Medical Center v. Heckler, 578 F.Supp. 39 (M.D.Tenn.1983) (one page opinion adopting Athens Community Hospital decision), appeal docketed, No. 83-5549 (6th Cir.); Walter O. Boswell Memorial Hospital v. Heckler, 573 F.Supp. 884 (D.D.C.1983), remanded, 749 F.2d 788 (D.C.Cir.1984); Athens Community Hospital v. Heckler, 565 F.Supp. 695 (E.D.Tenn.1983), appeal docketed, No. 83-5546 (6th Cir.).

      . The court notes that the Malpractice Rule is the brain child of three staff members in the Department of Health, Education, and Welfare. Letter from Clifton R. Gaus to Administrator (Apr. 5, 1979). The three staff members received a $25,000 cash bonus as an award for their idea. Letter from Clifton R. Gaus to Suggestion Awards Coordinator (Apr. 5, 1979).

      . These dates were suggested to the court by plaintiffs. Plaintiffs rely upon 42 U.S.C.A. § 1395ww(d) (1983), which seems to require prospective payments. Thus, the recomputation of the amount due to plaintiff Charter Suburban Hospital of Mesquite, Inc. for the fiscal year that begins April 1, 1985, must be made prior to April 1, 1985.

      . The original order in this case has been amended twice. In the interest of clarity, the court has incorporated the subsequent orders into the original order.