author: DEBEVOISE, District Judge.

text:
    DORN’S TRANSPORTATION, INC. and Oneida Motor Freight, Inc., Plaintiffs, v. TEAMSTERS PENSION TRUST FUND OF PHILADELPHIA AND VICINITY, Defendant.
    Civ. A. No. 83-2012.
    United States District Court, D. New Jersey.
    Oct. 25, 1984.
    As Amended Dec. 13, 1984.

      Podvey, Sachs & Catenacei by Robert B. Gigl, Jr., Newark, N.J., and Bridgeman & Urbanczyk, Washington, D.C., for plaintiffs.
    Schneider, Cohen & Solomon by Paul A. Friedman, Jersey City, N.J., for defendant.
   DEBEVOISE, District Judge.

Introduction

This case arises out of a demand by defendant Teamsters Pension Trust Fund of Philadelphia and Vicinity (Teamsters Fund) for payment by Dorn’s — now Oneida’s wholly-owned subsidiary — of $315,516 which the Teamsters Fund claims as “withdrawal liability” due under the Multiemployer Pension Plan Amendments Act of 1980, 29 U.S.C. § 1381 et seq. (MPPAA).

Dorn’s and Oneida now seek summary judgment on two alternative grounds: (1) that the undisputed facts show that there has been no “withdrawal” from the Teamsters Fund such as to create a statutory basis for its claim for withdrawal liability, and (2) if the statute were construed to require the payment demanded, then, on the facts of this ease, it would violate the Fifth Amendment to the Federal Constitution. Since, however, this motion can be decided on statutory, rather than constitutional, grounds, the Fifth Amendment claim will not be reached.

Statement of Facts and Procedural History

Until March 1981, plaintiffs Dorn’s Transportation, Inc. (Dorn’s) and Oneida Motor Freight, Inc. (Oneida) operated separately as motor common carriers of freight over routes in the Northeastern United States. Oneida and Dorn’s had no relationship to one another except as competitors until 1980, when the two began negotiating for the sale of Dorn’s to Oneida. On March 2, 1981, Oneida contracted to purchase all of the outstanding stock of Dorn’s for $1,035,000. At that time, Dorn’s was in financial difficulty and had a negative net worth of $995,000.

On March 5, 1981, the Interstate Commerce Commission (ICC) granted temporary authority to Oneida to control and operate Dorn’s business, pending disposition of Oneida’s application for final authority to control Dorn’s and purchase its stock. The ICC gave its final approval in an Order entered July 22, 1981. Dorn’s Pennsauken, New Jersey terminal, one of nine Dorn’s terminals, was shut down on March 6, 1981, the day after the ICC grant of temporary authority. Dorn’s employees were told to report to the Oneida terminal in Pennsauken on the following Monday morning. Ten of the twelve Dorn’s full time employees at Pennsauken, all members of the International Brotherhood of Teamsters, Chauffeurs and Warehouse-men, Local 107, accepted employment with Oneida. Overall, more than 700 of the approximately 800 Teamsters members employed by Dorn’s became employees at Oneida terminals. All such employees were unionized.

Prior to Oneida’s purchase of Dorn’s, both plaintiffs were parties to a collective bargaining agreement with Local 107 of the Teamsters which covered their Pennsauken employees. The agreement in effect in March 1981 was first effective April 1, 1979. It required each of the employers to contribute to defendant Teamsters Fund, a multiemployer pension fund, on behalf of employees who were Local 107 members.

For the year prior to March 1981, Dorn’s had made pension contributions to the Teamsters Fund on behalf of approximately twelve full time Teamster employees and varying numbers of “casual” employees who were members of Local 107. Local 107 had had advance notice of the pending Oneida-Dorn’s transaction and participated in a proceeding which resulted in a March 3, 1981 determination by the Teamsters’ Philadelphia and Vicinity Joint Area Committee that Dorn’s Pennsauken terminal employees should be “dovetailed” into Oneida’s Pennsauken terminal employees seniority list. See Decision of Joint Area Committee, Plaintiffs’ App. at 52.

Since Oneida acquired Dorn’s, plaintiffs have continued to make pension plan contributions on behalf of all Dorn’s former employees now employed by Oneida. In the years following the acquisition, plaintiffs’ contributions have been approximately 90% of the combined contributions made by Oneida and Dorn’s separately in the five years preceding 1981.

Upon the termination of Dorn’s operations, the defendant Teamsters Fund submitted a claim to Dorn’s for payment of “withdrawal liability” from the fund in the amount of $315,516. Defendant made this claim under the Multiemployer Pension Plan Amendments Act of 1980 (MPPAA), 29 U.S.C. § 1381 et seq.

The MPPAA was enacted to provide a statutory scheme under which employers who chose to terminate, or significantly reduce the levels of, their contributions to a multiemployer pension plan are liable for a proportionate share of the “unfunded vested benefit liability” of that plan. The MPPAA was intended to prevent employers from evading their obligations under collective bargaining agreements to contribute to multiemployer plans. Section 1383(a) of the MPPAA defines a complete withdrawal as follows:

A complete withdrawal from a multi-employer plan occurs when an employer—
(1) permanently ceases to have an obligation to contribute under the plan, or
(2) permanently ceases all covered operations under the plan.

Several provisions of the MPPAA create exemptions from withdrawal liability for certain types of funds and where withdrawal occurs in specified situations. Plaintiffs claim that they are not liable for withdrawal payments under two provisions of the MPPAA. First, § 1398 provides that:

... an employer shall not be considered to have withdrawn from a plan solely because—
(1) an employer ceases to exist by reason of—
(A) A change in corporate structure described in § 1362(d)... if the change causes no interruption in employer contributions or obligations to contribute under the plan...
For purposes of this part a successor parent corporation or other entity resulting from any such change shall be considered the original employer.

The changes described in § 1362(d) include:

A reorganization which involves a mere change in identity, form, or place of organization, however effected ...; a liquidation into a parent corporation [or] a merger, consolidation or division...

Thus, plaintiffs contend that Oneida’s purchase of 100% of Dorn’s stock and the transfer of Dorn’s operations to Oneida’s facilities, combined with the fact that Oneida continued to make payments to the fund for the former Dorn’s employees, brings plaintiffs within the exemption provided by § 1398.

Plaintiffs also contend that, under ERI-SA and the MPPAA, Dorn’s and Oneida are one employer, and that therefore there has been no § 1383(a) withdrawal and no consequent liability. This contention is based on a series of definitions of “employer” that appear throughout ERISA, the MPPAA and related provisions of the Internal Revenue Code. For purposes of ERISA, 29 U.S.C. § 1001 et seq., an “employer” means “any person acting directly as an employer, or indirectly in the interest of an employer, in relation to an employee benefit plan; and includes a group or association of employers acting for an employer in such capacity.” 29 U.S.C. § 1002(5). That definition is supplemented by 29 U.S.C. § 1301(b), which states:

For purposes of this subchapter [sub-chapter III], under regulations prescribed by the corporation [Pension Benefit Guaranty Corporation (PBGC)], all employees of trades or businesses (whether or not incorporated) which are under common control shall be treated as employed by a single employer and all such trades and businesses as a single employer. The regulations prescribed-under the preceding sentence shall be consistent and co-extensive with regulations prescribed for similar purposes by the Secretary of Treasury under § 414(c) of Title 26.

The PBGC regulation promulgated pursuant to this section, 29 C.F.R. § 2612, incorporates by reference the provisions of § 414(c) of the Internal Revenue Code of 1954 which are in turn assimilated to the provisions of § 414(b). The latter section in turn relies upon the definition of “controlled group” in 26 U.S.C. § 1563(a). Section 1563(a), the section applicable in the circumstances of this case, defines a parent subsidiary “controlled group” as:

One or more chains of corporations connected through stock ownership, with a common parent corporation if—
A. Stock possessing at least 80% of the total combined voting power of all classes of stock entitled to vote, or at least 80% of the total value of shares of all classes of stock of each of the corporations, except the common parent corporation, is owned (within the meaning of subsection (d)) by one or more of the other corporations.
B. The common parent corporations owns (within the meaning of subsection (d)(1)) stock possessing at least 80% of the total combined voting power of all classes of stock entitled to vote or at least 80% of the total value of shares of all classes of stock of at least one of the other corporations, excluding, in computing such voting power, or value, stock owned directly by such other corporations.

Since Oneida acquired the right to 100% of Dorn’s stock on March 2, 1981 (the date of the contract of sale), plaintiffs claim that they have been a single employer since that date for purposes of 29 U.S.C. § 1301(b).

Defendant claims that, since, under § 1383(a) of the MPPAA, the date of withdrawal is the date that covered operations and the obligation to contribute cease, a complete withdrawal was effected by Dorn’s when it shut down its Pennsauken terminal. Defendant asserts that this situation is not one falling under § 1398, and argues that the controlled group concept set forth in § 1301(b) was intended by Congress to be a collection device, and not a means by which employers can be exempted from withdrawal liability.

In addition, defendant alleges that the acquisition of Dorn’s by Oneida was not a bona fide transaction, but rather was undertaken as a means of avoiding withdrawal liability. In support of this allegation, defendant points to a 1982 action in the Southern District of New York entitled Dorn v. Dorn’s Transportation, Inc. and Oneida Motor Freight, Inc., a decision reported at 562 F.Supp. 822 (S.D.N.Y.1983), in which Walter Dorn, a former owner of Dorn’s, sought confirmation of an arbitrator’s award. The matter submitted to arbitration concerned a default by Oneida on the sales contract between itself and Walter Dorn that occurred when Oneida discovered that Dorn’s had had a withdrawal liability claim asserted against it. This action was dismissed for lack of subject matter jurisdiction. Dorn v. Dorn’s Transportation, Inc. and Oneida Motor Freight, Inc., 562 F.Supp. 822 (S.D.N.Y.1983). Defendant claims that this dispute over whether Walter Dorn had disclosed this claim for withdrawal liability calls into question the bona fide nature of the Oneida-Dorn’s sale. Defendant therefore requests that the court defer its decision on this summary judgment motion so that discovery can be had on this matter.

Discussion

Plaintiffs’ first contention is that Dorn’s is exempted from withdrawal liability under § 1398 of the MPPAA since Dorn’s ceased to exist by reason of a merger, and there has been substantially no interruption in contributions to defendant Teamsters Fund on behalf of the former Dorn’s employees. Although defendant asserts that this situation is not one falling under § 1398, defendant fails to provide support for its assertion.

I find that plaintiffs are protected by the exemption provided by § 1398, since the facts of the Dorn’s-Oneida transaction appear to be those contemplated by the language of that section. Dorn’s ceased to exist, and ceased operations, by reason of its merger with Oneida. As of March 6, 1981, Dorn’s ceased to have a corporate identity separate from Oneida’s, and Oneida took over all of Dorn’s operations. There was no interruption in contributions to the plan on behalf of the former Dorn’s employees, and, indeed, defendant never alleged any interruption.

Defendant’s assertion that § 1398 does not apply appears to be based, if, in fact, it has any basis, on defendant’s assertion that the Dorn’s-Oneida sale was not bona fide. Defendant has produced the entire file on the Dorn v. Dorn’s and Oneida litigation, but I do not find that that litigation establishes grounds for an allegation that the sale was simply a means for Walter Dorn to avoid a withdrawal claim against Dorn’s. Indeed, the record shows, and defendants do not dispute, that the sale was the result of protracted negotiations that began in 1980, and there is no evidence that the sale was not an arms length transaction. The withdrawal claim that was the subject of the litigation does not appear to be defendant’s claim, and while the record is not clear, the claim appears to have arisen after the sale was consummated on September 17, 1981, or at least after the contract was signed on March 2, 1981. There is thus no clear indication that Walter Dorn entered the contract to avoid withdrawal liability. At most, it can be said that Walter Dorn knew that it was possible that a withdrawal claim would arise, and failed to disclose that possibility to Oneida. That is not enough, however, to support an allegation that the possibility of such a claim caused Walter Dorn to negotiate and consummate the Dorn’s-Oneida sale in order to avoid withdrawal liability. Given the financial condition of Dorn’s at the time of the sale, there appear to be many, more overriding, reasons why Walter Dorn wished to sell the company. The very fact that the parties to the transaction engaged in litigation concerning its implementation is further evidence, if any were needed, of its arms length nature.

Plaintiffs’ next contention is that there is no withdrawal liability because Dorn’s and Oneida were a single employer within the meaning of § 1301(b). Plaintiff cites three cases that discuss the meaning of the language in § 1301(b) which defines a single employer as “trades or businesses” whose employees “are under common control”. Two of these cases, PBGC v. Ouimet, 630 F.2d 4 (1st Cir.1980) and PBGC v. Anthony, 537 F.Supp. 1048 (N.D.Ill.1982), concerned single, rather than multiemployer plans and involved situations in which a parent and subsidiary were found to be a single employer and both were subject to withdrawal liability under the MPPAA. The third case, Dyck v. Southern Pacific Milling Co., 4 E.B.C. 1346 (C.D.Ca.1988), involved a multiemployer plan and concerned a situation where facilities were transferred from one subsidiary of a parent company to another subsidiary of the same company. The court found that there was no withdrawal liability on the grounds that the two subsidiaries were a single employer under ERISA § 1301(b)(1) and 29 C.F.R. § 2612.3. The court based its decision largely upon the fact that the employment condition of the employees at the transferred facilities was the same as before the transfer.

Plaintiffs cited these cases in support of their contention that § 1301(b) applies to all provisions of the MPPAA. Defendant, on the other hand, argues that Congress intended § 1301(b) to be used only as a collection device where the withdrawing employer was bankrupt or had insufficient funds to cover the withdrawal liability.

• The extremely limited case law in this area makes this a difficult issue to resolve. Two important factors, however, lead me to conclude that the controlled group/single employer concept does serve to protect plaintiffs from withdrawal liability, at least in situations where the number of covered employees and payments to the pension fund remain substantially unchanged. First, there is nothing in the language of § 1301(b) that suggests it is only intended as a collection device. Indeed, as the court in Anthony, supra, pointed out, “[b]y the unambiguous language of § 1301(b)(1), its treatment of a “ ‘common control’ group as a ‘single employer’ applies for the ‘purposes of this subchapter [subchapter III, encompassing the MPPAA]’ ”. 537 F.Supp. at 1051. The Ouimet court made the identical point. 630 F.2d at 10-11. See also PBGC General Counsel Opinion 82-13, Plaintiffs’ Reply App. While those courts used the single employer concept to find withdrawal liability, the Dyck court used § 1301(b) to find that a “single employer” who continued contributions was not subject to withdrawal liability. It thus appears that § 1301(b) was not intended to be only a collection device.

Second, the basis of the finding of no liability in Dyck was that the employees remained in exactly the same position after the facilities were transferred as they were before the transfer. While the same cannot quite be said for the Dorn’s-Oneida employees, those employees are in substantially the same position as they were before the sale. All Dorn’s employees at the Pennsauken terminal were given the opportunity to continue employment with Oneida, and ten of the twelve employees did so; the routes they drive are substantially the same; they continue membership in the same union local; and Oneida continues to contribute to the fund in their behalf. They may not be under the same collective bargaining agreement as they had with Dorn’s, but their seniority rights after the transfer were determined in a March 3, 1981 proceeding before the Teamsters Philadelphia and Vicinity Joint Area Committee. See Decision of Joint Area Committee, Plaintiffs’ App. at 52. I thus find that, for the purposes of determining withdrawal liability, Dorn’s and Oneida are a single employer within the meaning of § 1301(b), and are not liable for withdrawal payments under the MPPAA.

The MPPAA is intended to ensure that employers do not evade their obligations to multiemployer funds by withdrawing from such funds. Here, however, the beneficiaries of the fund remained in substantially the same position and contributions to the fund remained substantially the same. This does not appear to be the type of situation that Congress sought to address in enacting the MPPAA.

Conclusion

Plaintiffs’ motion for summary judgment on the grounds that there is no statutory basis for withdrawal liability is granted. The constitutional issues raised by plaintiffs in this motion were not heard. Defendant’s request for a deferred decision in order for more discovery to be had is denied.

Counsel for plaintiffs are requested to submit an appropriate form of order.

      . To date, Dorn’s has received three demands for payment of withdrawal liability, in addition to the Teamsters Fund’s claim. The Trucking Employees of North Jersey Fund has demanded $318,959; the IAM National Pension Fund has demanded $61,346; and the Management-Labor Pension Fund, Local 1730 ILA, originally claimed $178,800, but, because that Fund later conceded that it was a "trucking industry plan”, Oneida posted a bond for 50% of that amount pursuant to 29 U.S.C. § 1383(d). The aggregate amount claimed, including the Teamsters Fund's claim, is $874,621, if paid immediately or, in quarterly installments, $1,047,447. McGoldrick Aff. at ¶¶ 33, 34, Plaintiffs' App. at 8.


source: Caselaw Access Project

author: KRAM, District Judge.

license: Public Domain

text:
    Roger CLAYTON, Plaintiff, v. The CITY OF NEW YORK, Defendant.
    No. 82 Civ. 1482 (SWK).
    United States District Court, S.D. New York.
    Oct. 25, 1984.

      Conrad J. Lynn, Spring Valley, N.Y., for plaintiff.
    Frederick A.O. Schwarz, Jr., Corp. Counsel by James F.X. Hiler, New York City, for defendant.
   MEMORANDUM OPINION AND ORDER

KRAM, District Judge.

The above-captioned action is before this Court upon the motion by defendant for judgment in its favor either on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, or as summary judgment, pursuant to Rule 56(b). For the reasons stated below, defendant’s motion is granted.

BACKGROUND

Plaintiff Roger Clayton is a citizen of the United States, and the State of New York, and is of the Black race.

The defendant, the City of New York (“the City”), is a municipal corporation organized under the laws of the State of New York.

This case arises out of an incident which allegedly occurred on September 22, 1979. Plaintiff alleges that on that day, at approximately 3:15 p.m., he was lawfully in his own residence — a room located at 109 East 9th Street. “Police officers” came to his residence and asked plaintiff to let them in, which plaintiff did. Thereafter, he alleges, the police officers beat him without cause or provocation. Plaintiff alleges that he was beaten unconscious, then handcuffed and taken to the police station. Upon regaining consciousness, plaintiff was allegedly beaten again with “clubs, blackjacks and rubber hoses.” Plaintiff was allegedly hospitalized the following evening.

On September 24, 1979, plaintiff was arraigned on charges of criminal trespass, criminal mischief, sexual abuse, possession of burglary tools, menacing, and resisting arrest. Plaintiff was released on his own recognizance after arraignment. The charges were dismissed in Criminal Court, New York County on January 22, 1980.

On March 10, 1982, plaintiff filed the complaint in this action, alleging that the beating was racially motivated and a deprivation of his civil rights under color of law in violation of 42 U.S.C. § 1983. Plaintiff did not name any of the police officers as defendants herein; the City was named as the sole defendant.

On March 18, 1982, plaintiff filed an amended complaint (“the first amended complaint”) which included an allegation that a Notice of Claim had been served on the City. Apart from the added reference to the Notice of Claim, the first amended complaint was identical to the original complaint.

In November, 1982, the City moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) on the theory that the first amended complaint sought to hold the City liable on a theory of respondeat superior and was therefore legally insufficient to state a claim upon which relief could be granted under 42 U.S.C. § 1983 and Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978) (holding that municipalities are not liable for acts of their employees solely on theory of respondeat superior).

In response to that motion, on November 29, 1982, plaintiff filed, among his opposition papers, a further amended complaint (“the second amended complaint”). As a basis for the filing of the second amended complaint, plaintiff urged that “Rule 15(a) of the Federal Rules of Civil Procedure provides that the privilege to amend is freely afforded the plaintiff.” Plaintiff further argued that he was “prepared to demonstrate that the actions of the law enforcement officers ... were part of a general practice of the police officers of the City of New York, when dealing with a minority persons such as black men.” Specifically, plaintiffs second amended complaint alleges:

That the police officers and other law enforcement officers deprived the plaintiff of his civil rights as hereinabove stated, pursuant to a long established custom of law enforcement officers in the City of New York, to violently injure and destroy the civil rights of Black men as a policy of intimidation, and with the expectation of enforcing order and preventing protest. That the responsible officials of the City of New York, including the Mayor and Police Commissioner, did not have any program which would alter this long standing practice and custom of the law officers of the City of New York.

Second Amended Complaint, ¶ 9.

Thereafter, the City moved to dismiss the second amended complaint pursuant to Rules 7(b)(1), 12(b)(6), and 15(c) of the Federal Rules of Civil Procedure. The City argued that plaintiffs attempt to amend the complaint (again) without either leave of the court or the consent of the defendant, and without a noticed motion, was proeedurally defective. Moreover, the City argued that the “new” claim against the City was fundamentally different from that asserted in the first amended complaint. As such, the claim would not, the City argued, relate back to the filing of the original complaint, pursuant to Fed.R. Civ.P. 15(c). If the claim did not relate back, it was barred by the applicable statute of limitations, and should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6).

This Court recognized that the manner in which plaintiff had proceeded in amending his complaint was technically defective and perhaps inartful; however, in the interests of justice the Court construed plaintiffs filing of the second amended complaint as a motion for leave to do so. The Court held further that the “same basic facts” were involved in the different complaints and that the statute of limitations had not run. The Court, therefore, granted plaintiff leave to file the second amended complaint and denied defendant’s motion to dismiss. The Court, however, directed the City to file a motion for summary judgment on the issue of pattern and practice. The Court further stated that “[pjlaintiff must allege facts sufficient to raise genuine disputes of material fact. The bare allegations of his complaint are insufficient. If discovery is needed plaintiff must proceed forthwith to seek discovery.” This motion ensued.

DISCUSSION

Plaintiff’s claim against the City is comprised of three distinct allegations. First, plaintiff claims that he was brutally beaten by police officers. Second, plaintiff claims that this beating was part of a “long established custom ... to violently injure and destroy the civil rights of Black men.” Third, plaintiff claims that the City does not have any program to “alter this long standing practice and custom.” Only one of these allegations, the first, contains any assertion of facts. The City argues that these allegations, on their face, are insufficient to state a claim under Section 1983 and that it is therefore entitled to judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c).

The starting point for any discussion of the liability of a municipality under 42 U.S.C. § 1983 is Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). See Means v. City of Chicago, 535 F.Supp. 455, 458 (N.D.Ill.1982). In Monell, the Supreme Court explicitly overruled Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), and held that a municipality is a “person” within the meaning of section 1983, and, therefore, may be liable for constitutional deprivations. The Court held, however, that a municipality could not be found liable under traditional concepts of vicarious liability, like respondeat superior, based upon the tortious acts of others. See Monell, 436 U.S. at 691, 98 S.Ct. at 2036; see also Means, 535 F.Supp. at 458. To state a cause of action under section 1983 against a municipality, Monell requires the plaintiff to assert that the alleged unconstitutional act “implements or executes a policy, statement, ordinance, regulation or decision officially adopted and promulgated by that body’s officers [or is] visited pursuant to governmental ‘custom’ even though such a custom has not received formal approval through the body’s official decision making channels.” 436 U.S. at 690-91, 98 S.Ct. at 2035-36. This Circuit has held that those requirements are met where a municipality “impliedly or tacitly authorized, approved or encouraged conduct that resulted in a constitutional tort.” Turpin v. Mailet, 619 F.2d 196, 201 (2d Cir.), cert. denied, 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475 (1980) (“Turpin II”).

The courts of this circuit have held that greater particularization and specificity are required in the pleadings in order to adequately assert a cause of action against a municipality under section 1983. See Finkelstein v. City of New York, 543 F.Supp. 161, 163 (S.D.N.Y.1982); Smith v. Ambrogio, 456 F.Supp. 1130, 1136-37 (D.Conn. 1978) (citing Fine v. New York, 529 F.2d 70, 73 (2d Cir.1975)). In Smith, then District Judge Newman justified the stricter pleading requirements as follows:

The standard for municipal liability predicated on inaction by senior personnel must be frankly acknowledged as difficult to meet. A claim of this sort should not be initiated unless there is a sufficient factual basis to justify the extensive litigation that such a claim entails. The typical § 1983 suit against a police officer for his allegedly unconstitutional action generally involves a single episode. Discovery and trial are entirely manageable. But a claim of municipality liability based on an alleged policy re-fleeted by a pattern of prior episodes will inevitably risk placing an entire police department on trial. Sweeping discovery will be sought to unearth episodes in which allegedly similar unconstitutional actions have been taken, and the trial will then require litgiation of every episode occurring in the community that counsel believes can be shown to involve a similar constitutional violation. Even if a trial is warranted by a complaint that does allege overt acts with requisite particularity, (citations omitted) neither a federal court nor a municipality should be burdened with such an action unless a detailed pleading is presented.

456 F.Supp. at 1137.

The second amended complaint in this ease sets forth no facts whatsoever except those concerning the incident in which Clayton was allegedly deprived of his rights and even those are presented extremely sketchily. It is generally necessary to assert more facts than those related to the one incident involved to establish a claim of “pattern and practice.” Finkelstein, 543 F.Supp. at 163. An exception to this rule is to be found in cases analogous to Owens v. Haas, 601 F.2d 1242 (2d Cir.), cert. denied, 444 U.S. 980, 100 S.Ct. 483, 62 L.Ed.2d 407 (1979), where this Circuit held that a single brutal beating may be sufficient to support an inference of some degree of official condonation or acquiescence, but this is not &uch a case.

No facts are alleged to support the naked allegation that a “long established custom” exists. Indeed, not even a single other incident is detailed. Furthermore, no facts are alleged supporting the bare assertion that “the responsible officials ... did not have any program which would alter this long standing practice and custom.” This is clearly insufficient under the precedent in this Circuit. See Smith, 456 F.Supp. at 1137; see also Schramm v. Krischell, 84 F.R.D. 294, 298 (D.Conn.1979) (“the complaint must make reference in detail to specific incidents of misconduct by government officials and must extrapolate from these incidents to indicate the particular manner in which the governmental body, by omission or commission, has placed its imprimatur upon the actions of its officers”).

This Court directed plaintiff to proceed forthwith with discovery to uncover the specific facts, if any exist, which would warrant a particularized claim against the City. See Owens v. Haas, 601 F.2d at 1246 (granting limited discovery and an opportunity to amend the complaint to include specific facts). Plaintiff conducted some limited discovery pursuant to that Order, but has not bolstered the insufficient factual allegations contained in his second amended complaint. Therefore, defendant should be granted judgment on the pleadings.

Alternatively, defendant should be granted summary judgment. Rule 12(c) of the Federal Rules of Civil Procedure provides, in relevant part, as follows:

If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56.

The City submitted an Affidavit of Rosemary Carroll, Assistant Commissioner for Civil Matters of the New York City Police Department, in support of its motion. Plaintiffs attorney submitted an affirmation in opposition to the motion. The Court did not exclude these matters; indeed, the Court has reviewed them and finds in them support for its decision. Therefore, (although perhaps overkill) the Court will address defendant’s arguments for summary judgment.

A motion for summary judgment should be granted if there is no genuine issue as to any material fact and if the moving party is entitled to judgment as a matter of law on those undisputed facts. See, e.g., Harlee v. Hagen, 538 F.Supp. 389, 393 (E.D.N.Y.1982); Fed.R.Civ.P. 56(c). Pursuant to Rule 3(g) of the Local Civil Rules for the Southern District of New York, the City submitted its statement of the material facts as to which it contends there are not genuine issues. Among those material facts listed, the City contends that

4. Any injuries sustained by plaintiff were not proximately caused by any official or unofficial policy, custom, pattern, practice or usage of the defendant.
5. The defendant has met all legal responsibilities with regard to the training and supervision of its police officers.

Essentially, the City has refuted plaintiff’s allegations, contained in paragraph 9 of the second amended complaint, as to the existence of a pattern or practice and as to the inadequacy of the Police Department’s training and supervision or the lack of a program to remedy the purported custom. Mrs. Carroll’s affidavit provides evidence that no authorized custom exists and that the City performs extensive screening, training, monitoring, and disciplinary programs to select, prepare, and supervise police officers in order to insure that unnecessary force is not used, especially in furtherance of a purported policy to injure Black men.

In order to defeat a motion for summary judgment, the opposing party must demonstrate that an issue of material fact exists. See Harlee, 538 F.Supp. at 393. In order to do this, the opposing party must assert specific facts through affidavits, pleadings, depositions or admissions on file which place the moving party’s asserted facts in issue. Id. This Court indicated in its earlier Order that the “bare allegations of [plaintiff’s] ... complaint are insufficient.” See also Fed.R.Civ.P. 56(e). Speculation or conclusory allegations are not enough. See Harlee, 538 F.Supp. at 393 (citing Gatling v. Atlantic Richfield Co., 577 F.2d 185, 187-88 (2d Cir.), cert. denied, 439 U.S. 861, 99 S.Ct. 181, 58 L.Ed.2d 169 (1978)).

Plaintiff has failed to allege additional facts to- bolster the insufficient asseverations contained in his second amended complaint. The only additional fact raised by plaintiff in response to defendant’s motion for summary judgment is a recitation that approximately one-third of the complaints of brutality received by the Complaint Review Board of the New York City Police Department in 1982 were from black persons. That figure would seem to be reasonably consistent with the proportion of black persons in the population at large. Certainly, that fact is insufficient to raise a genuine issue regarding the existence of any extensive series of programs used by defendant to insure adequate training and supervision of its police force.

Having determined that there are no issues of material fact, it remains to be determined whether defendant is entitled to judgment as a matter of law. As discussed above, in order to assert a claim against the City under section 1988, plaintiff must show that the City had a policy or custom, officially or unofficially, condoning the unconstitutional acts of its employees. E.g., Monell, 436 U.S. 658, 98 S.Ct. 2018; Turpin II, 619 F.2d 196. Plaintiff argues that the Court is imposing an impossible burden upon him by requiring him “to show a practice of assaulting members of the black minority” to hold the City liable. That, however, is the law under Monell.

Plaintiff has not, and cannot, show that an express policy was being implemented during the alleged unprovoked and malicious beating he received. Plaintiff can only argue that defendant’s alleged inaction or inadequate training and supervision was tantamount to tacit acquiescence in some custom. In order to succeed on such a claim, plaintiff must be able to establish “gross negligence” or “deliberate disregard.” Owens v. Haas, 601 F.2d at 1246; Feldman v. City of New York, 493 F.Supp. at 538. Such would be the case if “[t]he training and supervising of [the offending] ... police officers [were] ... so inadequate and the resulting misconduct so probable, that the city can fairly be considered to have acquiesced in the probability of serious police misconduct.” Id. (quoting Leite v. City of Providence, 463 F.Supp. 585, 591 (D.R.I.1978)). The undisputed facts in this case do not support such a finding. The Carroll Affidavit establishes that the practices and procedures of the police department with respect to hiring, training, and supervising police officers are not inadequate. Moreover, as Judge Lasker said in Feldman, “[e]ven the most minimal training (if any is necessary) obviously is sufficient to inform a policeman that beating a prisoner is impermissible.” 493 F.Supp. at 539. Clearly, the undisputed training and supervision described in Assistant Commissioner Carroll’s affidavit are sufficient to justify the conclusion that the City does not condone such conduct.

Thus, the City is entitled to judgment as a matter of law both on the face of the pleadings and upon the undisputed facts of this case. Therefore, defendant’s motion for judgment on the pleadings or summary judgment must perfumee be GRANTED. Since the City is the only defendant in this action, the case is hereby DISMISSED. The Clerk of the Court is directed to enter judgment accordingly.

SO ORDERED.

      . Plaintiff argues that his claim is also based independently upon the Eighth and Fourteenth Amendments. Since a right of action against municipalities lies directly under section 1983, there is no direct right of action against municipalities under the Eighth and Fourteenth Amendments. See Turpin v. Mailet, 591 F.2d 426 (2d Cir.1979) (en banc); Feldman v. City of New York, 493 F.Supp. 537, 538 (S.D.N.Y.1980).

      . In Owens the Court held that the premeditated nature of the beating, and the number and rank of the officers involved could support a direct inference of official condonation. 601 F.2d at 1246. Here there is no allegation that high-ranking officers were involved. Moreover, an isolated incident within the New York City Police Department cannot support a direct inference of official condonation. Thus, the Owens exception is not applicable here. See also Finkelstein, 543 F.Supp. at 163 n. 3.

      . Plaintiff also argues that Monell was limited by Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed. 673 (1980). Owen, involved the absence of an immunity, under section 1983, to a municipality for decisions of its high ranking officials, themselves protected by a good faith immunity, which deprive an individual of his constitutional rights. Owen is, therefore, distinguishable. At the very least, the alleged conduct of the police officers here was not protected by any immunity from liability. Compare Owen, 445 U.S. at 651, 100 S.Ct. at 1415. Moreover, the decision of the high ranking officials in Owen effected an express policy for the municipality so that the liability of the municipality was entirely consistent with Monell. See Owen, 445 U.S. at 657-58, 100 S.Ct. at 1418-19 (citing Monell, 436 U.S. at 694, 98 S.Ct. at 2037).

      . Plaintiff has not, at any time, attempted to name the individual police officers as defendants against whom a viable claim might have been asserted.


author: PAINE, District Judge.

text:
    UNITED STATES of America, v. Salvatore Victor LAFERRERA, Defendant.
    No. 84-6070 CR-Paine.
    United States District Court, S.D. Florida.
    Oct. 25, 1984.
    Deborah Watson, Dept, of Justice, Sp. Atty., Fort Lauderdale, Fla., for plaintiff.
    Michael Querques, Orange, N.J., for defendant.
   ORDER

PAINE, District Judge.

This cause is before the Court on defendant’s motion to suppress (DE 10). The Court held a hearing on defendant’s motion on September 21, 1984 (DE 23) and received defendant’s final brief in support of the motion on October 10, 1984 (DE 26). The government filed a number of memorandums in support of their position that the motion should be denied. (DE 18-22). Having reviewed the submissions of counsel and the transcript of the suppression hearing, this Court is of the view that the motion must be granted.

On August 26, 1983 local law enforcement officers and representatives from Jersey Central Power & Light (J.C.P & L) arrived at defendant's residence on Hulses Landing Road, Brick Town, New Jersey to conduct a search. The search party was armed with a search warrant to enter and search the premises for evidence relating to the theft of electricity. {See government exhibit S.H.l, 84-6070-Cr-Paine). During the course of the search weapons were found in the downstairs kitchen closet, upstairs master bedroom closet, a cabinet in the bedroom closet and inside a safe within the cabinet. {See Government exhibit S.H.l, 84-6070-Cr-Paine). The charges in the instant indictment stem from defendant’s possession of these weapons.

After the first weapons were found, Lt. Gudgeon, the officer in charge of the search party, left the residence to confer with a local prosecutor. (DE 23 at 37-38). The result of this discussion was Lt. Gudgeon’s knowledge that possession of the weapons by defendant did not constitute a violation of state law. (DE 23 at 38). Lt. Gudgeon returned to the residence where the search party was in the process of conducting the search and securing any further weapons. These weapons were removed from defendant’s residence and secured outside until completion of the search. The weapons were then removed to the police station for checking. Detective Sullivan testified that the defendant had told him the guns had been legally purchased in Florida. (DE 23 at 139).

The government offers several arguments in support of its contention that the guns should not be suppressed. The Court agrees with the government’s contention that it was permissible for the search party to locate and secure all weapons in the home for the safety of the search party. Upon discovery of weapons during the course of a search, it is permissible to secure those weapons, for the safety of those conducting the search, as well as any others present. United States v. Malachesen, 597 F.2d 1232 (8th Cir.1979); United States v. Chapman, 549 F.2d 1075 (6th Cir.1977).

These cases, however, do not stand for the proposition that the weapons may be seized indefinitely. The reason that a protective search and seizure, in and of itself, does not authorize retention of the weapons beyond the conclusion of the search is that the purpose for the limited seizure has been effected. The purpose of seizing the weapons during the search is to secure the safety of the officers. Once the search is completed and the officers are on their way there is no longer a viable safety concern.

The government suggests that the officer’s standard operating procedure of removing the items was justified because by leaving behind a “small arsenal” upon departure there still would have been a danger to the officers. The Court cannot agree with this logic. Under such a situation, where weapons were seized only for the protection of the officers, a transfer of the arsenal would have to transpire at some point in time. At the point of transfer the owner of the guns will inevitably wind up in possession of the arsenal in police presence.

Nor do the cases cited by the government support their argument the weapons secured for the protection of the search party may be retained beyond the duration of the search. See e.g. United States v. Timpani, 665 F.2d 1, 5-6, n. 8 (1st Cir. 1981) (“In a word, it might well have been dangerous to leave the weapons in the bedroom; and removing them to the car while the search went on, in our view, was reasonable”.) (emphasis added). Therefore, something more than a concern for the safety of the officers must exist before the officers may remove weapons, secured during a protective search, from the search site.

This result can be gleaned not only from reference to general constitutional principles relating to search and seizure, but also reference to cases dealing with seizures made pursuant to the “plain view” exception.

In Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) the Court stated that “seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assum ing that there is probable cause to associate the property with criminal activity.” Id. at 587, 100 S.Ct. at 1380 (emphasis added). In the Court’s recent handling of Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) the plurality of the Court clarified the language in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) requiring the incriminating nature of the items seized to be “immediately apparent”. The Brown plurality suggested this was an “unhappy choice of words”, Brown, 460 at 741, 103 S.Ct. at 1542. This unhappiness was premised on the plurality’s interpretation that the “immediately apparent” requirement implies an “unduly high degree of certainty as to the incriminatory character of the evidence ____” Id. at 741, 103 S.Ct. at 1542. While a high degree of certainty might not be necessary, some standard of probable cause to believe a crime has been, or is about to be committed, must be present in order to avoid running afoul of the Fourth Amendment guarantees.

The case of United States v. Gray, 484 F.2d 352 (6th Cir.1973) cert. den. 414 U.S. 1158, 94 S.Ct. 916, 39 L.Ed.2d 110 (1974) is helpful in determining the issue before the Court. In Gray a state trooper was informed that the defendant was selling beer without a license. 484 F.2d at 353. The trooper entered defendant’s store and purchased several cans of beer. Id. The trooper left the store and obtained a search warrant authorizing seizure of “any intoxicating liquors, apparatus for manufacturing intoxicating liquors or materials used in the manufacture of intoxicating liquors.” Id.

Upon returning to the store to execute the search warrant, defendant was arrested. The store itself was searched, as was the upstairs residential apartment. Although nothing pertaining to alcoholic beverages was found upstairs, two rifles in the upstairs clothing closet were discovered. Id.

The officer removed the rifles from the closet and took them downstairs to the store area of building where he copied down the serial numbers of the weapons Trooper Brodt then returned the weapons to the upstairs closet____ The officers then ran the serial numbers obtained from the rifles through the computer of the National Crime Information Center and learned for the first time that the firearms had been stolen____

Id. at 353-54.

The Gray court suppressed the guns finding that “there was no nexus between the rifles and the crimes of selling or possessing intoxicating liquor without a license; nor did the officers at that time have any knowledge that the rifles were evidence of any other crimes.” Id at 355. See also Sovereign News Co. v. United States, 690 F.2d 569 (6th Cir.1983); United States v. Szymkowiak, 727 F.2d 95 (6th Cir.1984); United States v. Clark, 531 F.2d 928 (8th Cir.1976); United States v. Schire, 586 F.2d 15 (7th Cir.1978).

In this case we have a situation, in terms of probable cause, where the search party had affirmative knowledge that no violation of state law was occasioned by defendant’s possession of the weapons. (See DE 23 at 38). The government argues that this knowledge makes no difference. In essence the assertion made is that since the test is objective, rather than subjective, the seizure was valid. This argument is without merit. It is true that a seizing officer’s subjective conclusion that he did not have probable cause will not necessitate suppression if an objective view of the facts allow a finding of probable cause. United States v. Thompson, 712 F.2d 1356 (11th Cir.1983). It is quite another thing to suggest that where an officer knows at the time of the seizure that no violation of state law has occurred that there could possibly be a finding of probable cause on that score. Such a holding would sanction bad faith seizures and is repugnant to the rights secured by the United States Constitution, and any sense of fairness.

The government also argues that defendant’s statement acknowledging purchasing the guns in Florida constitutes probable cause to believe a violation of federal firearms law exists. While probable cause is not a strict, exacting standard, this Court is of the view that the mere statement of purchasing the guns in Florida does not rise to the level of probable cause to believe a violation of 18 U.S.C. § 922(a)(3) or 18 U.S.C. § 922(a)(6) existed.

Section 922(a)(3) prohibits the transportation of firearms into a person’s state of residence from a place outside thereof, if the person is not a federally licensed importer, manufacturer or collector of firearms. To extract from defendant’s statement a finding of probable cause of unauthorized interstate transportation of firearms requires a quantum leap. Nor does the fact that the items were purchased in Florida rise to the level of probable cause to believe the defendant misrepresented his residence when purchasing the weapons in violation of 18 U.S.C. § 922(a)(6).

In light of the foregoing it is

ORDERED and ADJUDGED that the defendant’s motion to suppress is granted.

      . The government also argues the seizure of 3 of the weapons named in the indictment [.22 caliber AR-15; a millimeter Baretta pistol and .22 caliber North American revolver] were found in "plain view” and therefore were properly seized. The Court’s finding that one of the essential elements necessary for a plain view seizure was missing requires rejection of this argument as well.

      . Justice Rehnquist authored the plurality opinion in which Chief Justice Burger, Justice White and Justice O’Connor joined. Justice Powell filed a concurring opinion, in which Justice Blackmun joined. Justice Stevens filed another concurring opinion in which Justice Brennan and Justice Marshall joined. None of these opinions can be read as obviating the need for probable cause.


author: MAROYITZ, District Judge.

text:
    Jeanne LEAMANCZYK and Jack W. Leamanczyk, Plaintiffs, v. A.H. ROBINS COMPANY, INC., Defendant.
    No. 84 C 5760.
    United States District Court, N.D. Illinois, E.D.
    Oct. 25, 1984.
    Suzanne M. Metzel, Phelan, Pope & John, Ltd., Chicago, 111., for plaintiffs.
    Donald J. Brown, Jr., Mark L. Karasik, Baker & McKenzie, Chicago, 111., for defendant.
   MEMORANDUM OPINION

MAROYITZ, District Judge.

Motion For Partial Summary Judgment

Plaintiffs Jeanne and Jack Leamanczyk bring this action seeking damages for personal injuries allegedly resulting from Jeanne’s use of a DaL.on Shield IUD contraceptive device allegedly manufactured by defendant A.H. Robins Company (“Robins”). Jeanne Leamanczyk has alleged a variety of serious and permanent injuries, while her husband Jack Leamanczyk is seeking damages for loss of consortium. In Counts I and II of the complaint Jeanne seeks to recover damages based upon the theories of strict liability in tort and negligence. Count III of the complaint contains Jack’s loss of consortium claim. The jurisdiction of the Court is invoked pursuant to 28 U.S.C. § 1332. Presently pending before the Court is Defendant Robins’ motion for summary judgment on Count I pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, defendant’s motion is denied.

In July 1973 plaintiff Jeanne Leamanczyk had a Daikon Shield inserted into her body by her personal gynecologist. The device remained in Mrs. Leamanczyk until February 1982. In July 1983 Mrs. Leamanczyk was hospitalized to determine why she was unable to become pregnant. She underwent surgery which indicated that she was suffering from infertility secondary to blocked fallopian tubes. She was apparently informed at that time that the Daikon Shield was the cause of her problem. This suit was filed on July 5, 1984.

Robins has moved for summary judgment on Count I claiming that under the Illinois Statute of Repose for products liability actions, Mrs. Leamanczyk’s claim based on strict liability is barred. The statute provides in pertinent part:

Subject to the provisions of subsections (c) and (d) no product liability action based on the doctrine of strict liability in tort shall be commenced except within the applicable limitations period and, in any event, within 12 years from the date of the first sale, lease or delivery of possession by a seller or 10 years from the date of first sale, lease or delivery of possession to its initial user, consumer, or other non-seller, whichever period expires earlier, of any product unit that is claimed to have injured or damaged the plaintiff, unless the defendant expressly has warranted or promised the product for a longer period and the action is brought within that period.

Ill.Rev.Stat., ch. 110, ¶ 13-213(b) (1982). Because this suit was filed in July of 1984, and the first sale to the initial user was in July of 1973, defendant Robins argues that the suit is time barred.

Plaintiffs have countered this argument by citing to subsection (d) of the same paragraph which provides that Mrs. Leamanczyk’s cause of action did not accrue until she knew or should have known of her injury.

Notwithstanding the provisions of subsection (b) and paragraph (2) of subsection (c) if the injury complained of occurs within any of the periods provided by subsection (b) and paragraph (2) of subsection (c), the plaintiff may bring an action within 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, of the existence of the personal injury, death or property damage, but in no event shall such action be brought more than 8 years after the date on which such personal injury, death or property damage occurred.

Ill.Rev.Stat., ch. 110, ¶ 13-213(d) (1982). It is undisputed that Mrs. Leamanczyk first learned of her injury upon her hospitalization in July 1983. Since the complaint was filed within 2 years of that time, the action is not time barred if it has also been brought within 8 years of the date the injury occurred. Thus, the key inquiry becomes when the injury actually occurred.

Neither party has specifically addressed this question. Defendant Robins has stated, without any legal or factual support, that injury occurs upon insertion. On the other side of the coin, plaintiffs argue, again without legal or factual support, that the injury occurred at some undetermined point in time during the 9V2 years that the device was inside Mrs. Leamanczyk’s body.

The Court has found no Illinois cases directly determining the point in time that injury occurs in a Daikon Shield case. In an analogous situation, Chief Judge Foreman concluded that the Illinois Supreme Court would follow the manifestation theory in determining when an injury occurs in an asbestosis case. Hobby v. Johns-Manville Sales Corp., 573 F.Supp. 53 (S.D.Ill. 1983). The manifestation theory stems from the United States Supreme Court’s decision in Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949), in which the Court held that a claim brought under the Federal Employer’s Liability Act for injuries due to silicosis did not accrue upon exposure to the injurious substance. The Court stated:

It follows that no specific date of contact with the substance can be charged with being the date of injury, inasmuch as the injurious consequences of exposure are the product of a period of time, rather than a point of time; consequently, the afflicted employee can be held to be “injured” only when the accumulated effects of the deleterious substance manifest themselves____

Urie, 337 U.S. at 170, 69 S.Ct. at 1025.

This Court agrees with Judge Foreman’s analysis of Illinois law and concludes that the Illinois Supreme Court would also follow the manifestation theory in a Daikon Shield ease. The similarities between the Daikon Shield cases and the asbestosis cases are readily apparent. Indeed, the Seventh Circuit has classified both types of cases as “progressive disease cases”. See Hansen v. A.H. Robins Co., Inc., 715 F.2d 1265, 1267 (7th Cir.1983). Moreover, there may be more reason for rejecting Robins’ insertion argument in the Daikon Shield case than in the asbestosis case. As Kristeller v. A.H. Robins, Inc., 560 F.Supp. 831 (N.D.N.Y.1983), points out, it could possibly be assumed that in the asbestosis situation the harmful substance taken into the body by inhalation acts immediately upon tissues of the body and causes immediate injury. There is no basis in reason to assume that disease begins immediately upon the insertion of a Daikon Shield. Unlike asbestos dust, a Daikon Shield is not, in and of itself, harmful.

In summation, the Court concludes that the Illinois Supreme Court would follow the manifestation theory in determining when injury occurs in a Daikon Shield case. The current record contains no facts upon which the Court can determine at what point the disease manifested itself. Such a determination is a medical judgment which may have to be resolved at trial. Hobby, 573 F.Supp. at 58. The Court therefore cannot determine, at this time, whether the action has been brought within 8 years of the date of injury. Accordingly, Defendant Robins’ motion for partial summary judgment is denied.


author: CALDWELL, District Judge.

text:
    Joseph THURMON, Plaintiff, v. MARTIN MARIETTA DATA SYSTEMS, Defendant.
    Civ. A. No. 84-0908.
    United States District Court, M.D. Pennsylvania.
    Oct. 26, 1984.
    Melville G.M. Walwyn, Dade, Harris & Walwyn, Harrisburg, Pa., for plaintiff.

      David H. Allshouse, Harrisburg, Pa., and Francis M. Milone, Philadelphia, Pa., for defendant.
   MEMORANDUM

CALDWELL, District Judge.

Before the court is defendant’s motion to transfer the above-captioned matter to the United States District Court for the District of Colorado pursuant to 28 U.S.C. § 1404(a). For the reasons discussed below, this case will be transferred but the transfer is grounded in the venue provisions of 42 U.S.C. § 2000e-5(f)(3) and is a mandatory rather than a discretionary act by this court.

Plaintiff, Joseph Thurmon (“Thurmon”), who currently resides in Harrisburg, Pennsylvania, alleges in his complaint that defendant Martin Marietta Data Systems (“Martin Marietta”) terminated his employment on September 2, 1983, for racial motivations in violation of, inter alia, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. §§ 1981,1983 and 1985. After filing its answer to the complaint, Martin Marietta moved to transfer this action to Colorado, where the alleged discriminatory termination occurred at Martin Marietta’s facility located in Littleton, Colorado.

Initially, this court notes that it is disturbed that neither party discussed or even referred to the body of clearly controlling case law in this matter. Our own independent research, and examination of the statutory provisions and of the relevant case law, however, convinces us that venue is not proper in the Middle District of Pennsylvania but rather lies in the District of Colorado under § 706(f)(3) of Title VII of the Civil Rights Act óf 1964, 42 U.S.C. § 2000e-5(f)(3), which sets forth four judicial districts where an employment discrimination action may be brought: (1) where “the unlawful employment practice is alleged to have been committed”; (2) where “the plaintiff would have worked but for the alleged unlawful employment practice”; (3) where “the employment records relevant to such practice are maintained and administered”; and (4) where the employer “has his principal office” if he cannot be found within the district where “the plaintiff would have worked but for the alleged unlawful employment practice.” See Stebbins v. State Farm Mutual Automobile Insurance Company, 413 F.2d 1100, 1102 (D.C.Cir.), cert. den., 396 U.S. 895, 90 S.Ct. 194, 24 L.Ed.2d 173 (1969); Kravec v. Chicago Pneumatic Tool, 579 F.Supp. 619 (N.D.Ga.1983).

We are persuaded that the reasoning of the Stebbins court, as followed in Kravec, should guide our decision here and we have found no authority in the Third Circuit to the contrary. Plaintiff Stebbins made the identical jurisdictional claim as the plaintiff in the instant action, i.e., that since the defendant employer was licensed to do, and was doing business in, the judicial district where the plaintiff brought suit, venue was proper there. The Stebbins court held that “[t]he venue of the right of action here in suit was limited by the statute which created the right,” in accordance with the Congressional intent “to limit venue to the judicial districts concerned with the alleged discrimination.” 413 F.2d at 1102.

Thurmon is therefore incorrect in arguing that the general venue provisions of 28 U.S.C. § 1391 control and he cannot seriously contend that the specific judicial districts where his action may have been brought under 42 U.S.C. § 2000e-5(f)(3) should be ignored. The Stebbins court specifically held that 28 U.S.C. § 1391, the general venue statute, did not provide an additional place of venue when the provisions of 42 U.S.C. § 2000e-5(f)(3) were not satisfied. The Kravec court likewise reiterated the Stebbins view that for the kind of employment discrimination action presented by the present matter, the Title VII venue provisions are exclusive. Among other cases reaching the same conclusion are Donnell v. Nat’l Guard Bureau, 568 F.Supp. 93 (D.D.C.1983); Templeton v. Veterans Administration, 540 F.Supp. 695 (S.D.N.Y.1982); and Dubnick v. Firestone Tire and Rubber Co., 355 F.Supp. 138, 141 (E.D.N.Y.1973).

Having concluded that venue in the present matter is governed by 42 U.S.C. § 2000e-5(f)(3), we find that venue does not properly lie in the Middle District of Pennsylvania. The alleged unlawful employment practice occurred in Colorado, where the relevant records are maintained. Moreover, plaintiff would have worked in Colorado were it not for the purported discriminatory act of defendant, and defendant is found within that district. Accordingly, defendant’s motion to transfer is granted on the grounds discussed in this memorandum and an appropriate order will be entered to effect the transfer.


author: GLASSER, District Judge:

text:
    CITIBANK, N.A. and Citicorp, Plaintiffs, v. CITYTRUST and Citytrust Bancorp, Inc., Defendants.
    No. 84 Civ. 3786.
    United States District Court, E.D. New York.
    Oct. 26, 1984.

      Morgan, Finnegan, Pine, Foley & Lee, New York City, for plaintiffs.
    Sage, Gray, Todd & Sims, New York City, Cifelli, Frederick & Tully, Bridgeport, Conn., for defendants.
   MEMORANDUM AND ORDER

GLASSER, District Judge:

The plaintiffs have moved, pursuant to Rule 65(a) of the Fed.R.Civ.P. for an order preliminarily enjoining defendants from using the name “CITYTRUST” in any manner whatsoever in identifying or referring to the office recently established by the defendants at 510 Broadhollow Road, Melville, New York, or to any other offices which defendants may establish in New York State. The plaintiffs also seek to preliminarily enjoin the defendants from increasing the type, frequency or prominence of any television, radio or print advertising or any other type of promotion or solicitation of business in the State of New York above that existing prior to the opening of their office in New York. A hearing on this motion was held on October 22, 1984 at which some testimony was elicited and arguments presented as supplementation to the extensive affidavits and memoranda of law submitted in support of and in opposition to the motion.

The genealogy of the parties is detailed in the affidavit of Christopher York (as to Citibank) and in exhibit 4 annexed to the affidavit of Jonathan A. Topham and in exhibit A annexed to the affidavit of Robert F. Cahill (as to Citytrust). Suffice it to note for purposes of this determination that Citibank and Citicorp are the owners of federal service mark registrations which are, and at all times pertinent to these proceedings have been, in full force and effect. In addition, the name “Citi” and approximately 50 extensions thereof have also been registered with the United States Patent and Trademark Office. “Cititrust” is not one of those extensions, although some of the plaintiffs’ subsidiaries outside the United States have used that name or mark. For example, the affidavit of John Grozier, a Vice President and Fiduciary Compliance Officer of the plaintiffs, reflects that Citibank’s wholly owned subsidiary, “Cititrust (Bahamas) Limited” has used the name and mark since 1976. Another wholly owned subsidiary, “Cititrust (Cayman) Limited” has used the name and mark, and a partially, owned subsidiary, “CityTrust Banking Corporation” has used the name and mark “CityTrust” in the Phillipines since 1977. (Grozier Affidavit, pp. 6-7).

The defendants have been in the banking business in Connecticut since 1854. From that date until approximately May 1984, when they opened an office in Melville, New York, their banking business was confined to Connecticut with their concentration being primarily in the Southwestern portion of that state. So long as the defendants’ business was confined to Connecticut, the business conducted by the parties was “not ... in the same channels of trade, because Citytrust is engaged in a general banking business in its area in Connecticut and neither Citicorp nor Citibank is permitted under federal or state law to engage in such banking services in that area.” (Affidavit of'Jonathan A. Top-ham at p. 3).

The defendants applied to the United States Patent and Trademark Office to register the “Citytrust” mark. The plaintiffs, in July 1980, opposed that application on the ground that the Citytrust mark would create confusion with their marks which are registered and to which common law rights are also asserted. The parties estimate that a determination of the registration issue-will not be made until 1985 or 1986. This proceeding was commenced after the defendants, for the first time, opened an office in New York at 510 Broadhollow Road, Melville, New York, using the name and mark “Citytrust.”

The plaintiffs base their claims for relief on § 32 of the Lanham Act, 15 U.S.C. § 1114 (infringement of service marks and trademarks; § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) (false designation of origin); N.Y.G.B.L. § 368-b (infringement of New York registered trademarks); N.Y.G. B.L. § 368-d (injury to business reputation and dilution) and infringement of common law trademark.

To obtain a preliminary injunction in this Circuit, the plaintiffs must make “a showing of (a) irreparable harm and (b) either (1) a likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979) (per curiam); see also Warner Bros., Inc. v. Gay Toys, Inc., 658 F.2d 76, 78-79 (2d Cir.1981). The moving party has the burden of proving each of those elements. Robert W. Stark, Jr., Inc. v. New York Stock Exchange, Inc., 466 F.2d 743, 744 (2d Cir.1972) (per curiam).

A. Likelihood of Success on the Merits

Addressing first the likelihood of success on the merits, it is well established that in a case of trademark infringement, the crucial inquiry is the likelihood of confusion or the likelihood that an appreciable number of ordinarily prudent persons are likely to be misled or confused as to the source of the goods or services in question. See, e.g., Spring Mills, Inc. v. Ultracashmere House, Ltd., 689 F.2d 1127, 1129 (2d Cir.1982). The answer to the crucial inquiry may be found in the many factors we have been instructed to consider in Polaroid Corporation v. Polaroid Electronics Corp., 287 F.2d 492, 495 (2d Cir.), cert. denied, 368 U.S. 820, 82 S.Ct. 36, 7 L.Ed.2d 25 (1961). Although the factors were utilized in Polaroid where the products were different, subsequent cases teach the utility of those factors in cases where the goods or services are competing and notwithstanding the similarity of marks. See e.g., Vitarroz v. Border, Inc., 644 F.2d 960 (2d Cir.1981). That the services and goods offered by the parties here are competing is not seriously disputed. The Polaroid factors are:

(1) the strength of the senior user’s mark;
(2) the degree of similarity between the two marks;
(3) the proximity of the products;
(4) the likelihood that the senior user will bridge the gap;
(5) actual confusion;
(6) the junior user’s good faith
(7) the quality of the junior user’s product; and
(8) the sophistication of the buyers.

1. Similarity of Plaintiffs’ Marks

The degree of protection to be given a trademark is to a large extent dependent upon the strength of the mark. In this context, “strength” refers to the tendency of the mark to identify the source from which the goods or services originate. McGregor-Doniger, Inc. v. Drizzle Inc., 599 F.2d 1126, 1131 (2d Cir.1979). Marks are classified into four categories and in ascending order of strength those categories are: (1) generic; (2) descriptive; (3) suggestive; and (4) arbitrary or fanciful. The strength of a mark, therefore, is normally dependent on its place upon the ascending scale and also on whether the mark has acquired secondary meaning. Lambda Electronics v. Lambda Technology, Inc., 515 F.Supp. 915, 925 (S.D.N.Y. 1981). Without deciding at this time the specific category into which the plaintiffs’ marks may fall, or whether the plaintiffs’ marks are properly labeled as being “weak,” “very weak,” “simply weak,” “strong” or “strong enough”, see, e.g., Citibank N.A. v. Citibanc Group, Inc., 724 F.2d 1540, 1545 (11th Cir.1984), it is clear that the plaintiffs’ marks have acquired a secondary meaning and are entitled to protection. See, e.g., Stork Restaurant v. Sahati, 166 F.2d 348 (9th Cir.1948); American Foundries v. Robertson, 269 U.S. 372, 381, 46 S.Ct. 160, 162, 70 L.Ed. 317 (1926).

2. Degree of Similarity Between The Two Marks

The crucial inquiry relevant to this factor is whether a similarity exists which is likely to cause confusion from the vantage point'of a prospective consumer. Exxon Corp. v. Xoil Energy Resources, Inc., 552 F.Supp. 1008, 1016 (S.D.N.Y.1981). A designation is likely to cause consumer confusion because it conveys the same idea or stimulates the same mental reaction and in this regard, it is the overall impression of the mark as a whole that must be considered. See, e.g., Armstrong Cork Co. v. World Carpets, Inc., 597 F.2d 496 (5th Cir.1979), cert. denied, 444 U.S. 932, 100 S.Ct. 277, 62 L.Ed.2d 190 (1979).

In a letter to the Federal Reserve Bank of New York dated October 13, 1978, Jonathan A. Topham, the defendants’ chief executive officer, opposed the plaintiffs’ application to open a consumer loan office in Westport, Connecticut. In the course of that letter, he alluded to the likelihood of confusion on the part of Citytrust customers in that market area, “Due to the similarity of the names ‘Citicorp’ and ‘City-trust.’ ” In an affidavit he submitted in this proceeding, Mr. Topham sought to explain the circumstances surrounding his letter and states:

“Neither I nor the Federal Reserve Bank ... considered the protest to be one involving a conflict in names of banking institutions in the sense of trademark law. At the time of sending my October 13, 1978 letter, I did not consult trademark counsel as to the technical aspects of trademark law, but was expressing a personal opinion which the Board held was wrong.”

Mr. Topham’s “personal opinion” is far more relevant than a technical opinion by trademark counsel since his “personal opinion” reflects the impression of the infringing mark upon the prospective consumer, which is precisely what is significant.

The defendants vigorously contend that the strength of the plaintiffs’ mark is in the “I” in Citó bank or Citó corp. and that the “Y” in City trust precludes any possibility of confusion.

Included in the submissions before the Court was the deposition of Edward C. Kozlowski taken on June 25, 1984 in connection with the proceeding before the Trademark Trial and Appeal Board. Mr. Kozlowski, now retired, was a media consultant who designed the defendants’ “Citytrust” mark. At pages 51 and 52 of that deposition, Mr. Kozlowski testified that “Cititrust” would be another name extension for Citibank and when addressed to the ear, the words “Citytrust” and “Cititrust” would be indistinguishable.

“The examination of the similarity of the trademarks, ... does not end with a visual comparison of the marks. Trademarks, like small children, are not only seen but heard. Similarity of sound enters into the calculation of likelihood of confusion.” Grotrian, Helfferich, Schulz, etc. v. Steinway & Sons, 523 F.2d 1331 (2d Cir.1975).

3. Proximity of the Products

Where the goods or services in question are competitive, the likelihood of confusion increases. As has already been indicated, the parties here are competitive in the same geographic area.

4. The Likelihood That Plaintiff Will “Bridge The Gap”

The “bridging the gap” factor refers to two possibilities, one of which is that in this era of corporate diversification, consumers will assume that the parties are either related or one and the same. See McGregor-Doniger, Inc. v. Drizzle, Inc., 599 F.2d 1126, 1135-1136 (2d Cir.1979). Given the aural similarity of the marks, this factor appears likely to be satisfied.

5. Evidence of Actual Confusion

Evidence of actual confusion is a strong indicator of a likelihood of confusion. McGregor-Doniger v. Drizzle, Inc., supra, 599 F.2d at 1136. The testimony of Vincent Benedetto, as well as the affidavits of Maureen McNamara, Peggy H. Peterson, Myrtle MacNeish and Sandy Keith are probative of this factor.

6. Junior User’s Good Faith

The defendants’ state of mind is a factor to consider in balancing the equities. The defendants were aware of the plaintiffs’ vigorous opposition to their application to register the “Citytrust” mark before opening their New York office. Relevant, too, in this regard is the minimal investment made by the defendants in advertising their services in their Long Island office (see deposition of Murray Morse, defendants’ Senior Vice President, Marketing, September 13, 1984, pp. 44-45); the fact that in 1976-1977 the defendant Bank was “in a very severe low,” its number one objective was survival and changing its name to Citytrust was a contributing factor to turning around the fortunes of the bank (see deposition of Edward M. Gleason, defendants’ Vice President and Western Regional Manager, June 22, 1984, pp. 112, 114). Those considerations may have more than passing significance for this Polaroid factor. See, E.I. duPont de Nemours & Co. v. Yoshida International, Inc., 393 F.Supp. 502, 514 (E.D.N.Y.1975).

7. Quality of Junior User’s Product

The plaintiffs do not attack the quality of defendants’ banking and financial services and this factor is, therefore, irrelevant.

8. Sophistication of the Purchasers

The significance of this factor lies in the relationship the level of sophistication bears to the likelihood of confusion. The testimony of Vincent L.medetto adduced at the hearing indicated confusion in the mind of a Citibank customer who might fairly be characterized as sophisticated if there is a correlation between accumulation of wealth and sophistication. If confusion was engendered in the mind of a sophisticated consumer, it is logical to infer that confusion would be likely in the minds of unsophisticated consumers. Although I should think the parties might stipulate that banking and financial services are currently used by persons who span the economic, social and intellectual spectrum, for purposes of this proceeding I believe that the plaintiffs’ likelihood of success as to this Polaroid factor is good.

An application of the factors listed in Polaroid to the submissions before the Court leads to the conclusion that there is a likelihood that the plaintiffs will succeed on the merits. This Circuit has, however, supplemented the Polaroid factors by balancing the conflicting interests of the parties, the nature of the senior user’s priority, the senior user’s delay in asserting its claim and the harm to the junior user against the benefit to the senior user that would result from the requested injunction. See, Vitarroz v. Borden, Inc., 644 F.2d 960, 966-967 (2d Cir.1981). Most of those supplemental factors have been alluded to. Reference has been made to the priority of marks and the minimal expenditures thus far made in advertising the defendants’ New York office. The affidavits and other submissions before the Court establish too that that office is in leased space on the third floor of a multi-tenant building with no exterior signs at or associated with the building (see affidavit of Glenn T. Hall, defendants’ Assistant Vice President and Manager of their Long Island Office). No substantial capital expenditure has as yet been made by the defendants and the inference that they are merely testing the waters is a tempting one to draw. Given the likelihood of confusion I find to be present and the tentative entry thus far sought to be made by the defendant into the plaintiffs’ market, the balance of hardships and equities tip decidedly in favor of the plaintiffs.

B. Irreparable Harm,

Having determined that the plaintiffs are likely to succeed on the merits given the likelihood of confusion, irreparable harm “almost inevitably follows.” Omega Importing Corp. v. Petri-Kine Camera Company, 451 F.2d 1190, 1195 (2d Cir.1971).

C. Laches

The defendants, in addition to contesting the likelihood of confusion and irreparable harm, contend that relief should be denied because the plaintiffs have been guilty of laches. The rule as to laches was succinctly stated in Cuban Cigar Brands N.V. v. Upmann International, Inc., 457 F.Supp. 1090 (S.D.N.Y.1978) as follows, at p. 1096:

“Defendant’s proof in its laches defense must show that plaintiff had knowledge of defendant’s use of its marks, that plaintiff inexcusably delayed in taking action with respect thereto, and that defendant will be prejudiced by permitting plaintiff inequitably to assert its rights at this time.

The plaintiffs have opposed the defendants’ application to register their mark in 1980 and that opposition proceeding has been litigated before the Trademark Trial and Appeal Board and is still pending. The plaintiffs commenced this action promptly after learning of the defendants’ office being opened in New York, and for the reasons already advanced, the defendants will not be unduly prejudiced by permitting the plaintiffs to assert their rights.

I shall not dwell upon the plaintiff’s claim under N.Y.G.B.L. § 368-d (injury to business reputation and dilution). Suffice it to note that in Sally Gee, Inc. v. Myra Hogan, Inc., 699 F.2d 621 (2d Cir.1983) the court held that a cause of action under that statute is established by a showing of possession of a truly distinctive trademark and likelihood of dilution. Neither competition between the parties nor likelihood of confusion are necessary elements of the cause of action, but the defendants’ good faith is to be considered in a cla».a for injunctive relief. Based upon all the proceedings and submissions before me thus far, I find that the plaintiffs have sustained their burden in establishing likelihood of success on the merits of their claims under the anti-dilution statute and the Lanham Act as well as irreparable harm.

Rule 65(d) of the Fed.R.Civ.P. requires that every order granting an injunction shall set forth the reasons for its issuance, which has been done. The Rule also requires that the order be specific in its terms and shall describe in reasonable detail the act or acts sought to be restrained.

Accordingly, the defendants, their officers, agents, servants and employees and any and all persons in active concert or in participation with them who receive actual notice of this Order by personal service or otherwise are hereby preliminarily enjoined from using the name or mark “CITY-TRUST” in any manner whatsoever in identifying or referring to the office recently established by defendants at 510 Broadhollow Road, Melville, New York 11747, or to any other offices which defendants now or in the future may establish in New York State or to the services performed or capable of performance by defendants at those offices; increasing the type, frequency, or prominence of any television, radio or print advertising or any other type of promotion or solicitation of business in the State of New York above that existing prior to the opening of their office in New York as aforesaid; and plaintiffs must file a bond in the sum of Twenty Five Thousand ($25,-000) Dollars for the payment of such costs and damages as may be incurred or suffered by any party who is found to be wrongfully restrained of enjoined.

      . The name the plaintiffs’ subsidiary sought to use in Westport was "Citicorp Person-to-Person Financial Center of Connecticut, Inc." The Federal Reserve Board found no reasonable basis for concluding that there is such similarity between that name and Citytrust as to result in any unfair competition. See footnote 13, on page 16 of exhibit 2 attached to Mr. Topham’s affidavit.


author: DORSEY, District Judge.

text:
    UNITED STATES of America v. Douglas G. KOWAL.
    Crim. No. H-84-1 (PCD).
    United States District Court, D. Connecticut.
    Oct. 26, 1984.
    Peter D. Clark, Thomas F. McCarthy, Crim. Div., Fraud Section, Washington, D.C., for plaintiff.
    Maxwell Heiman, Furey, Donovan & Heiman, Bristol, Conn., for defendant.
   RULING ON GOVERNMENT’S MOTION TO REQUIRE DEFENDANT’S COMPLIANCE WITH THE INSANITY DEFENSE REFORM ACT OF 1984

DORSEY, District Judge.

The government has moved that the court require that defendant’s duly-noticed insanity defense comport with the requirements of the Insanity Defense Reform Act of 1984 (Act) signed into law by the President on October 12,1984. While the Act is in effect, its revised and curtailed grounds of insanity and reallocation of the burden of proof to the defendant may not be applied to defendant’s trial. As the offenses charged were allegedly committed by defendant before the effective date of the legislation, application of the Act in these respects is prohibited by the ex post facto clause of the Constitution.

Facts

Defendant is charged with two counts of traveling in interstate commerce with intent to further an unlawful activity, in violation of 18 U.S.C. § 1952. The indictment, returned on January 12, 1984, charges that on or about December 6, 1982, and again on or about June 16, 1983, with intent to further an attempted extortion and an extortion of money from his former employer and principal, in violation of the law of the State of New York, the defendant traveled in interstate commerce and thereafter performed and attempted to perform the unlawful activity of extortion.

Originally scheduled to commence on May 22, 1984, trial was aborted by reason of defendant’s then incompetence, since alleviated, and then continued for psychiatric testing and evaluation. On July 31, 1984, defendant filed notice of his reliance on the defense of insanity. Fed.R.Crim.P. 12.2(a). Trial is presently scheduled for October 29, 1984.

On October 12, 1984, the President signed the Comprehensive Crime Control Act of 1984, of which Sections 401 through 406 constitute a sweeping overhaul of the nature and presentation of the insanity defense in the federal courts.

Aimed at redressing “a glaring deficiency in our federal criminal justice system — the abuse of the insanity defense,” 130 Cong.Rec. 13, H 381 (daily ed. 2/8/83) (Statement of Rep. Gekas), the Act is a multi-pronged attack on “a long-developing problem that we have permitted to confuse and misguide that [sic] fact finding process of criminal trials.” Id. The Act substantially changes: the definition of insanity; the allocation of the burden of proof; the limits of expert testimony; the forms of verdict; and procedures for disposition of the mentally ill offender. The present motion provides a sufficiently clear record to consider the applicability of two principal provisions of the Act, the revised definition of insanity and the allocation of the burden of proving insanity.

Section 402 of the Act provides as follows:

(a) AFFIRMATIVE DEFENSE. — It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.
(b) BURDEN OF PROOF. — The defendant has the burden of proving the defense of insanity by clear and convincing evidence.

Absent another provision, the Act is effective as of the signature of the President to the Law. 2 Sutherland’s Statutory Construction § 33.06 (3d ed. Sands Rev.1973), citing Gardner v. Collector, 6 Wall 499, 18 L.Ed. 890 (1867).

Discussion

A.

Article I, § 9, clause 3 and Article I, § 10, clause 1 of the Constitution prohibit the enactment by Congress of ex post facto legislation. In Dobbert v. Florida, 432 U.S. 282, 292, 97 S.Ct. 2290, 2297, 53 L.Ed.2d 344 (1976), after observing that the Supreme Court’s “cases have not attempted to precisely delimit the scope of this Latin phrase, but have instead given it substance by an accretion of case law,” the Court summarized the characteristics of an ex post facto law as set forth in Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 68-69, 70 L.Ed. 216 (1925):

It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.

Among the purposes of the prohibition are to “give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed” and to restrain “arbitrary and potentially vindictive legislation.” Weaver v. Graham, 450 U.S. 24, 28-29, 101 S.Ct. 960, 963-964, 67 L.Ed.2d 17 (1980) (citations omitted).

In accord with these purposes, our decisions prescribe that two critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.
He * H* * *
We have also held that no ex post facto violation occurs if the change effected is merely procedural, and does “not increase the punishment nor change the ingredients of the offense or the ultimate facts necessary to establish guilt.” Hopt v. Utah, 110 U.S. 574, 590 [4 S.Ct. 202, 210, 28 L.Ed. 262] (1884). See Dobbert v. Florida, 432 U.S. 282, 293 [97 S.Ct. 2290, 2298, 53 L.Ed.2d 344] (1977). Alteration of a substantial right, however, is not merely procedural, even if the statute takes a seemingly procedural form. Thompson v. Utah, 170 U.S. 343, 354-355 [18 S.Ct. 620, 624, 42 L.Ed. 1061] (1898); Kring v. Missouri, supra [17 Otto 221] at 232 [2 S.Ct. 443 at 452, 27 L.Ed. 506].

Weaver, 450 U.S. at 29 & n. 12, 101 S.Ct. at 964 n. 12 (citations omitted).

Perhaps due to difficulties inherent in applying the ex post facto prohibition to retroactive procedural changes lightening the prosecutorial burden, Supreme Court jurisprudence in this regard is not all of one piece. Compare, e.g., Kring v. Missouri, 17 Otto 221, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506 (1883) (invalidating retrospective abrogation of state rule treating conviction for lesser included offense as acquittal of greater offense) and Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061 (1898) (invalidating retrospective application of state law requiring only eight jurors rather than twelve) with, e.g., Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884) (validating retrospective enlargement of class of competent witnesses); Duncan v. Missouri, 152 U.S. 377, 14 S.Ct. 570, 38 L.Ed. 485 (1894) (validating retrospective reduction in number of judges hearing appeals); Gibson v. Mississippi, 162 U.S. 565, 16 S.Ct. 904, 40 L.Ed. 1075 (1896) (validating retrospective change in mode of grand jury selection); Thompson v. Missouri, 171 U.S. 380, 18 S.Ct. 922, 43 L.Ed. 204 (1898) (validating retrospective broadening of mode of authenticating and introducing handwriting samples): Mallett v. North Carolina, 181 U.S. 589, 21 S.Ct. 730, 45 L.Ed. 1015 (1901) (validating retrospective granting of right of appeal by the state): Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (validating retrospective limitation on right of jointly-indicted defendants to receive separate trials). See also Murphy v. Kentucky, -U.S.-, 104 S.Ct. 1427, 1428, 79 L.Ed.2d 751 (1984) (White, J. dissenting from denial of writ of certiorari where case provided opportunity to address “the evident confusion among lower courts concerning the application of the Ex Post Facto clause to changes in the rules of evidence and procedure”).

While it has been suggested that the cases validating retroactive procedural changes “can hardly be distinguished in any functional way from those invalidated,” L. Tribe, American Constitutional Law § 70-3 at 483-84 (1978), the Beazell Court suggests the cases trace an evolution toward the following distinction, concededly one of degree rather than kind:

[Statutory changes in the mode of trial or the rules of evidence, which do not deprive the accused of a defense and which operate only in a limited and unsubstantial way to his disadvantage are not prohibited ... [whereas] ... procedural changes which operate to deny to the accused a defense available under the laws in force at the time of the commission of his offense, or which otherwise affect him in ... a harsh and arbitrary manner ... fall within the constitutional prohibition.

269 U.S. at 170-71, 46 S.Ct. at 68-69 (citations omitted) (emphasis added).

B.

The standard for criminal responsibility first promulgated by the American Law Institute (ALI) and incorporated into the Model Penal Code has, during the last two decades, come to supplant the once dominant common law McNaughten test.

The ALI standard, approved for use in nearly all federal courts, was adopted in this circuit as follows: “A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.” United States v. Freeman, 357 F.2d 606, 622 (2d Cir.1966) (emphasis added). The ALI standard thus has a cognitive and a volitional prong.

The Act narrows the definition of insanity and includes only the inability to appreciate the nature and quality or the wrongfulness of his acts. The inability, as a result of a mental disease or defect, to conform one’s conduct to the requirements of the law has thus been eliminated.

Under the ALI standard, a finding that defendant met either the cognitive or volitional test would result in an acquittal. The Act, premised on the view “that it is impossible with any degree of fairness or accuracy to determine whether a defendant acted because he chose to or because he was driven by uncontrollable psychological forces,” and that maintenance of the volitional prong of the test “merely perpetuates an inviting arbitrary loophole for those with the resources to avail themselves of it,” (130 Cong.Rec. 13) sanctions only a unitary, cognitive standard.

The adoption, in Freeman, of the ALI standard (and its retroactive effect to cases pending on appeal) changed the legal definition of insanity in a manner noted to be substantive in nature. United States v. Tarrago, 398 F.2d 621, 623 (2d Cir.1968). The change effectuated by the Act is likewise substantive. Retrospective application of the Act’s standard to this defendant would deprive him of one prong of the ALI insanity defense to wit, that at the time of his conduct, as a result of mental disease or defect, he lacked substantial capacity to conform his conduct to the requirements of the law. As the Act, if applied, would deprive one charged with crime of a defense available at the time when the act was committed, it cannot be so applied in the face of the ex post facto clause. Beazell, 269 U.S. at 169-70, 46 S.Ct. at 68-69.

C.

The Act’s changes with respect to the burden of proof of the insanity defense if imposed on defendant would also violate the ex post facto clause. Under prior federal law, the government has borne the ultimate burden of persuasion on the issue of insanity. Once a federal defendant notified the government of his intention to rely upon the insanity defense, Fed.R.Crim.P. 12.2(a), and introduced some evidence of insanity, it was incumbent on the government to prove defendant’s sanity beyond a reasonable doubt. That burden has been criticized as “entirely inappropriate since it is the defendant who possesses the secrets of his own mind and it is he who claims that these mysterious impulses were responsible for his conduct. It is not excessive to place the burden on the defendant to show that which he best knows.” 130 Cong.Rec. 13.

Prior to the Act, evidence short of proof of sanity beyond a reasonable doubt would entitle defendant to an acquittal. The Act, by allocating the burden of proof to defendant, results in an acquittal by reason of insanity only if insanity is proven clearly and convincingly.

There is a substantial middle ground or “grey area” between government proof of sanity (beyond a reasonable doubt) and clear and convincing proof of insanity. Pri- or to the Act, if the evidence raised a reasonable doubt as to defendant’s sanity or showed him to be possibly insane, he should be acquitted. Under the Act, the same state of the evidence, where his sanity is in doubt or he is possibly but not clearly and convincingly insane, i.e. in the same middle ground, he would not be entitled to an acquittal. The Act thus denies a defendant acquittal if he falls in the middle ground or grey area whereas the pre-Act law would require acquittal in such circumstances.

Application of the newly-enacted burden to this defendant thus runs afoul of the ex post facto prohibition. Whether viewed as in effect an alteration of a substantial right, while taking a seemingly procedural form, see Thompson, Kring, or as a procedural change which operates to modify the quantum and kind of proof required to establish guilt or otherwise affects the defendant in a harsh or arbitrary manner, see Beazell at 170-71, 46 S.Ct. at 68-69, this defendant cannot constitutionally be required to assume the burden of proving insanity. While “a defendant may not demand that he be tried in all respects under the law as it existed when he committed the offense ... [h]e may demand trial under prior law ... when changes in the law are substantially to his disadvantage.” 2 Sutherland’s Statutory Construction § 42.-06 (3d ed. Sands rev.).

The legal definition of insanity and the burden of proving insanity established and assigned by the Insanity Defense Reform Act of 1984 may not, constitutionally, be applied to this defendant by reason of the ex post facto prohibition. Defendant’s trial shall proceed in accordance with the legal definition and burden of proof with respect to insanity in effect at the time of the conduct alleged in the indictment.

SO ORDERED.