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

text:
    Cheryl L. WILLIAMS, Special Administratrix of the Estate of Mitchell Conrad Smith, Estate of Mitchell Conrad Smith, Louanne Eben and Ronald B. Smith, Plaintiffs, v. PYRAMID LAKE PAIUTE TRIBE OF the PYRAMID LAKE RESERVATION, an American Indian Tribe; et al., Defendants.
    No. CV-R-84-277-ECR.
    United States District Court, D. Nevada.
    Jan. 8, 1986.
    Ronald J. Bath and David R. Houston, Reno, Nev., and John Echeverría, San Francisco, Cal., for plaintiffs.
    David R. Grundy, Reno, Nev., for Pyramid Lake Paiute Tribe of the Pyramid Lake Reservation; The Pyramid Lake Paiute Tribe; Pyramid Lake Paiute Tribal council; Roy Garcia, Wilfred Shaw; Clifford Davis; William Wadsworth; Warren Tobey; Gordon Frazier; Lorena Eben; Robert James; Albert Phoenix; Fred John; Della John; Debra Harry; Marvin Wright, Sr.; Joe Ely; Rosalie Dunn & Glorena Guerrero.
    Robert A. McQuaid, Reno, Nev., for Pyramid Lake Indian Tribal Enterprises.
    Don Nomura, Reno, Nev., for Elwood Lowery.
   ORDER

EDWARD C. REED, JR., District Judge.

Plaintiffs seek damages for the alleged wrongful death of. an eight-year-old boy. The child, an Indian, found an unexploded firework on the shore of Pyramid Lake within the exterior boundaries of the Pyramid Lake Paiute Indian Tribe. The boy took the firework home where he exploded it with a match. He died shortly thereafter from the injuries he sustained.

Several defendants now move this Court to dismiss the complaint for failure to state a claim for relief pursuant to Fed.R.Civ.P. 12(b)(6). The defendants contend that: (1) this Court lacks subject matter jurisdiction; and (2) the moving defendants enjoy sovereign immunity.

The Court will first examine defendants’ contention that this Court lacks subject matter jurisdiction. Plaintiffs allege that the moving defendants, the Pyramid Lake Paiute Tribe, its Tribal Council and the individual members of the Tribal Council, violated their civil rights. Plaintiffs assert that this Court has subject matter jurisdiction for money damages because of violations of their civil rights as guaranteed by the Indian Civil Rights Act, 25 U.S.C. §§ 1301-1303 (ICRA). Plaintiffs argue that their claims arise under federal law and, therefore, this Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331. Plaintiffs misconstrue ICRA.

The Supreme Court has unequivocally held that the only remedy Congress intended to redress violations of ICRA is a petition for a writ of habeas corpus. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 52, 98 S.Ct. 1670, 1673, 56 L.Ed.2d 106 (1978). Congress, while imposing upon the tribes certain rights guaranteed to the people of the United States, stopped short of imposing identical restrictions. Id. at 57, 98 S.Ct. at 1676. Congress specifically declined to assert all of our constitutional rights on the sovereign Indian tribes. Id. Thus, although a Tribe is bound by the ICRA, a federal court has no jurisdiction to enjoin violations or to award damages for violations of that Act. Id.

Further, there is no federal legislation which grants the federal courts jurisdiction over civil disputes between Indians and non-Indians that arise on an Indian reservation. But c.f. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978) (federal legislation conferring jurisdiction on the federal courts to try non-Indians for offenses committed in Indian Country implicitly pre-empted tribal criminal jurisdiction over non-Indians).

Plaintiffs, however, urge this Court to ignore the clear holding of Santa Clara, and instead adopt the much criticized opinion of Dry Creek Lodge, Inc. v. Arapahoe & Shoshone Tribes, 623 F.2d 682 (10th Cir.1980). Not only is the case before this Court factually distinguishable from Dry Creek, but this Court finds that Dry Creek is not the law of this circuit, nor is it the law of the United States.

First, the Ninth Circuit has expressly rejected the Dry Creek case and its analysis. The Ninth Circuit has never wavered from its recognition that federal courts lack jurisdiction over civil actions for the kind of relief which plaintiffs now seek. Most recently, in R.J. Williams Co. v. Fort Belknap Housing Authority, 719 F.2d 979 (9th Cir.1983), the court recognized that the holding in Santa Clara:

“... ‘foreclosed any reading of the [Act] as authority for bringing civil actions in federal court to request ... forms of relief [other than habeas corpus].’ Snow v. Quinault Indian Nation, 709 F.2d 1319, 1323 (9th Cir.1983), petition for cert. filed, 52 U.S.L.W. 3310 (U.S. Oct. 11, 1983) No. 83-595; accord Boe v. Fort Belknap Indian Community, 642 F.2d 276, 278-79 (9th Cir.1981); Trans-Canada Enterprises, Ltd. v. Muckleshoot Indian Tribe, 634 F.2d 474, 477 (9th Cir.1980). Contra Dry Creek Lodge, Inc. v. Arapahoe & Shoshone Tribes, 623 F.2d 682 (10th Cir.1980), cert. denied, 449 U.S. 1118, 101 S.Ct. 931, 66 L.Ed.2d 847 (1981).”

719 F.2d at 981.

Second, the concerns of the Dry Creek court were that the plaintiffs were non-Indians who had been foreclosed from any remedy for the violations of their civil rights and that the issue was not concerned with the internal affairs of the tribe. The court found that there had to be a forum where the dispute could be settled. Id. at 685. In this case, the victim was an Indian and plaintiffs are suing both Indians and non-Indians for a death that occurred within the exterior boundaries of the Pyramid Lake Paiute Reservation. Plaintiffs appropriately filed suit in the Tribal Court and they have not been foreclosed from their remedies. The plaintiffs express concern that the Tribal Court may decline to exercise jurisdiction or that jurisdiction may be challenged by the non-Indian defendants. The decisions as to the existence and extent of a tribal court’s jurisdiction, however, should be conducted in the first instance in the tribal court. National Farmers Union Ins. Co. v. Crow Tribe of Indians, - U.S. -, 105 S.Ct. 2447, 2454, 85 L.Ed.2d 818 (1985). In National Farmers, a school district and its insured sought a preliminary injunction preventing the execution of a default judgment entered by the Crow Tribal Court against the school district. The Supreme Court held that the district court had jurisdiction under 28 U.S.C. § 1331 to determine the jurisdiction of the tribal court, but only after tribal court remedies had been exhausted. Id. at 2454. Accordingly, until plaintiffs have exhausted the remedies available to them in the Tribal Court system, it would be premature for this Court to consider any relief. Id.

Plaintiffs also express concern that if this ease is dismissed from this Court, they will be foreclosed from ever litigating this case because several of the defendants are non-Indians. The Supreme Court, however, noted recently that a tribal court may have the power to exercise civil subject-matter jurisdiction over non-Indians. National Farmers Union Ins. Co. v. Crow Tribe of Indians, 105 S.Ct. at 2553.

Plaintiffs assert as the simple basis of jurisdiction that their civil rights have been violated. The policy supporting tribal self-government outweighs the general policy of inferring a cause of action under other civil rights statutes. Santa Clara, 436 U.S. at 61-66, 98 S.Ct. at 1678-81. f.CRA is primarily enforceable in tribal forums. Id. at 65, 98 S.Ct. at 1680. Thus, this Court has no jurisdiction at this time. Because this Court finds that we have no subject matter jurisdiction, the Court does not reach defendants’ remaining contention.

CONCLUSION

Plaintiffs are suing the Pyramid Lake Paiute Tribe and various tribal entities and officials for the alleged wrongful death of an eight-year-old boy. Tragic as this accident was, however, this Court has no jurisdiction. It would appear that the entire complaint should be dismissed. However, this Court will grant plaintiffs 30 additional days to amend their complaint to include proper allegations which may establish this Court’s jurisdiction over the remaining defendants.

IT IS, THEREFORE, HEREBY ORDERED that the motions to dismiss the complaint are GRANTED as to the moving defendants.

IT IS FURTHER ORDERED that plaintiffs shall have 30 days within which to file an amended complaint and if no amended complaint is filed, then the complaint shall be dismissed as to the remaining defendants.

      . This Court received three motions to dismiss. Defendants, Pyramid Lake Paiute Tribe of the Pyramid Lake Reservation, an American Indian tribe; the Pyramid Lake Paiute Tribe, a Federal corporation; Pyramid Lake Paiute Tribal Council; Roy Garcia; Wilfred Shaw; Clifford Davis; William Wadsworth; Warren Tobey; Gordon Frazier; Lorena Eben; Robert James; Albert Phoenix; Fred John; Della John; Debra Harry, Mervin Wright, Sr.; Joe Ely; Rosalie Dunn; and Glorena Guerroro move for dismissal (document #7). Defendant Pyramid Lake Indian Tribal Enterprises moves for dismissal (document # 11). Defendant Elwood Lowery moves for dismissal (document # 15). Because all of the defendants' motions contained similar contentions, the Court will refer to the defendants’ contentions collectively.

      . Plaintiffs also attached the entire factual history of this case to their opposition to the defendants’ motion to dismiss. None of this material is pertinent to a Fed.R.Civ.P. 12(b)(6) motion to dismiss. This Court did not consider any of the information in making our decision.

      . This, of course, leaves open the question of our jurisdiction should the Pyramid Lake Paiute Tribal Court decide not to exercise its possible jurisdiction. See R.J. Williams, 719 F.2d at 983-984. Plaintiffs, however, have not given the Tribal Court the opportunity to determine whether it will exercise jurisdiction. As the Supreme Court recently noted, a full record should be developed in the tribal court and all tribal court remedies should be exhausted prior to this Court exercising our jurisdiction. National Farmers, 105 S.Ct. at 2454.

      . This Court may have diversity jurisdiction over the remaining defendants. Although this Court has no independent basis for jurisdiction, a cursory look at the defendants indicates that if the Indian defendants are dismissed, this Court may have diversity jurisdiction over the California defendants. At this time, this Court does not, of course, intend to pass on whether or not we would have jurisdiction.

      . Please see footnote 1.


source: Caselaw Access Project

author: LEISURE, Disti’ict Judge:

license: Public Domain

text:
    UNITED STATES of America, v. Giuseppe VENUTI, a/k/a “Pagnotta,” Calogero Mannino, a/k/a “Charlie,” Antonio Badalamenti, Federico Spatola, Andrea Gambino, Ferdinando Capasso, Antonio Trinajstic, a/k/a “Tony,” and Carlos Trinajstic, a/k/a “Johnny,” Defendants.
    No. S 84 CR 1002 (PKL).
    United States District Court, S.D. New York.
    Jan. 9, 1986.
    Rudolph W. Giuliani, U.S. Atty. for the Southern Dist. Atty. of N.Y. (William M. Tendy, Deputy U.S. Atty., David Denton, Executive Asst. U.S. Atty., and Kerri Martin, Asst. U.S. Atty., of counsel), New York City, for U.S. of America.
    Brownstein & Brownstein (Irwin Brown-stein, and David K. Brownstein, of counsel), New York City, for Calogero Mannino.
    Gerald L. Shargel (Christine E. Yáris, of counsel), New York City, for Antonio Badalamenti.
    Freeman, Nooter & Ginzberg (Louis M. Freeman, of counsel), New York City, for Ferdinando Capasso.
    Cohn & Blau (Frederick H. Cohn, of counsel), New York City, for Carlos Trinajstic.

      Stanley S. Arkin (Marc Bogatin, of counsel), New York City, for Antonio Trinajstic.
    Richard Maracina, New York City, for Giuseppe Venuti.
    Caesar D. Cirigliano (John P. Curley, of counsel), New York City, for Andrea Gambino.
   OPINION

LEISURE, Disti’ict Judge:

Defendants have moved to suppress the fruits of oral and electronic surveillance. For the reasons contained herein, that motion is denied.

I. BACKGROUND

The superseding indictment in this case, filed on July 9, 1985, named eight defendants. The first count of the indictment alleged that all eight defendants engaged in a conspiracy to distribute and possess with intent to distribute a Schedule I narcotic drug controlled substance, namely, heroin, in violation of federal law. The remaining twenty-eight counts of the indictment charged certain of the named defendants with having committed various substantive narcotics offenses.

Prior to trial, defendants moved to suppress a large number of tapes on which the voices of some of the defendants may be heard. The tapes are the fruits of oral and electronic surveillance conducted pursuant to two orders issued by Hon. Irving Ben Cooper, District Judge of this Court, on October 1, 1984 and November 8, 1984. The first order authorized thirty days’ surveillance of defendant Venuti’s home and telephone (the “Venuti tap”), and was extended for an additional thirty day period by order of Judge Cooper on October 31, 1984. The latter order authorized electronic surveillance of conversations that took place on a telephone located in “Mr. Ciccio’s” barbershop, where defendant Mannino was employed (the “Ciccio tap”).

Originally, defendants advanced four theories in support of their motions to suppress. First, they argued that the tapes should be suppressed because of the government’s failure to ensure immediate sealing of the tapes at the termination of surveillance, as required by the procedures set forth in 18 U.S.C. § 2518(8)(a). Next, they argued that the tapes should be suppressed because the law enforcement personnel conducting the surveillance did not properly minimize their interceptions in accordance with the dictates of 18 U.S.C. § 2518(5). Third, they argued that the applications for the interception orders were not properly authorized by the Attorney General. Finally, they argued that the unintelligibility of some of the tapes necessitated an audibility hearing in order to determine which tapes would be rendered inadmissible.

On August 27, 1985, I issued my initial ruling on defendants’ motions to suppress. See United States v. Venuti, S 84 Cr. 1002 (PKL) (August 27, 1985 Memorandum and Order). In that Order, I denied defendants’ motion to suppress on minimization grounds; ruled that the motion to suppress on grounds of improper authorization had been withdrawn at defendants’ own request; and denied defendants’ request for a pre-trial audibility hearing. See id. at 12-18.

As to defendants’ motion to suppress because of the government’s failure to ensure immediate sealing of the surveillance tapes, my ruling was, of necessity, more complex and less definite than its three companion rulings. First, I ruled that, as a matter of law, 18 U.S.C. § 2518(8)(a) requires immediate sealing at the expiration of the period for which surveillance was authorized rather than upon the cessation of actual surveillance. Aceordingly, I calculated that the Government had only delayed one week (7 days) in sealing the Venuti tapes. See August 27 Memorandum and Order at 5-7. (There is no dispute in this case that the delay in sealing the Ciccio tapes was 13 days.) Second, I considered whether the government had offered a “satisfactory explanation” for the sealing delays. This question was, and remains, of great significance in this case since, under the law of the Second Circuit, the government’s failure to provide a “satisfactory explanation” for the failure to seal tapes “immediately” must result in the suppression of those tapes at trial. See United States v. Gigante, 538 F.2d 502, 507 (2d Cir.1976). At the time of my August 27 Order, the government’s explanation for the sealing delays was the “heavy workload” of Daniel Perlmutter (“Perlmutter”), the Assistant United States Attorney who had been in charge of the “Venuti” investigation for the United States Attorney’s Office for the Southern District of New York. See August 27 Order and Memorandum at 7-8. Upon my initial consideration of that explanation, I concluded that defendants were entitled to a pretrial evidentiary hearing that would examine the government’s proferred justification “in some detail.” Id. at 12.

The pre-trial evidentiary hearing that followed took place during all or part of five trial days. In the course of the hearing, a significant amount of evidence and testimony was introduced, much of it concerning Assistant United States Attorney Perlmutter’s mental and physical condition from December 1 until December 21, 1984, the time period which this Court deemed to be of greatest relevance to the suppression hearing. This evidence and testimony clearly established that during the period in which Perlmutter’s statutory obligation to seal the Venuti and Ciccio tapes arose, he was overworked, emotionally distressed, physically ill, and regularly ingesting cocaine.

On September 23, 1985, at the conclusion of the pre-trial evidentiary hearing, I denied defendants’ motion to suppress in a ruling from the bench. The factual and legal bases for that ruling are set forth in detail below.

II. DISCUSSION

Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, prescribes specific procedures for securing judicial authorization for the interception of wire or oral communications in criminal investigations. See United States v. Giordano, 416 U.S. 505, 507, 94 S.Ct. 1820, 1823, 40 L.Ed.2d 341 (1974). Congress enacted Title III in order “to ensure careful judicial scrutiny of the conduct of electronic surveillance and the integrity of its fruits.” United States v. Gigante, 538 F.2d 502, 503 (2d Cir.1976).

Title III specifically requires that wiretap evidence be presented for judicial sealing “immediately” upon the expiration of the order (or the extension thereof) authorizing the surveillance. See 18 U.S.C. § 2518(8)(a). The Second Circuit has held that, in the absence of a satisfactory explanation, the government’s failure to comply with the immediate sealing requirements of § 2518(8)(a) with regard to any recorded wiretap evidence must result in the exclusion of the recordings at trial. United States v. Gigante, 538 F.2d at 507.

In the instant case, defendants’ motion to suppress relates to a 7-day delay in sealing the Venuti tapes, and a 13-day delay in sealing the Ciccio tapes. In neither instance can it be said that there was an “immediate” sealing within the meaning of § 2518(8)(a). See United States v. Vazquez, 605 F.2d 1269, 1278 (2d Cir.1979), cert. denied, 444 U.S. 981, 100 S.Ct. 484, 62 L.Ed.2d 408 (1980). Accordingly, the government must provide this Court with a “satisfactory explanation” for the sealing delays, or the Venuti and Ciccio tapes will have to be suppressed. See United States v. Gigante, 538 F.2d at 507.

Originally, in these proceedings, the government claimed that the sealing delays had been caused primarily by Perlmutter’s “heavy workload.” As the pre-trial evidentiary hearing progressed, however, the government broadened the scope of its initial explanation. The government now contends that the sealing delays occurred because Perlmutter was in such a distressed mental and physical condition that he had lost his “capacity to focus” on his statutory obligation to seal the Venuti and Ciccio tapes. The question squarely before me on defendants’ motion to suppress is whether that refined explanation constitutes a “satisfactory explanation” within the meaning of 18 U.S.C. § 2518(8)(a).

A. The Nature of the Sealing Delays

Before proceeding any further, I wish to review certain facts and circumstances pertaining to the sealing delays at issue in this case.

1. The Venuti Tap

The Venuti tap was initiated on October 1, 1984, pursuant to an authorization order signed by Judge Cooper. As the Venuti tap continued, a set of original and “original duplicate” tapes were produced on a daily basis. At the end of each day’s surveillance, the original tapes were heat-sealed in envelopes; the following day those tapes were transferred to the office of the Drug Enforcement Administration (“DEA”), where they were placed in the DEA’s evidence vault. See Evidentiary Hearing Transcript (“Tr.”) at 204. On October 31, 1984, the day after Judge Cooper’s initial order authorizing the Venuti tap expired, all the tapes that had been produced to that date were signed out of the DEA evidence vault by DEA Special Agent William J. Snipes (“Snipes”). See Tr. at 205. The tapes Snipes signed out were subsequently sealed by Judge Cooper on November 2, 1984.

On October 31, 1984, Judge Cooper signed an order authorizing an extension of the Venuti tap until November 30, 1984. The actual monitoring on the Venuti tap, however, was suspended on November 16, 1984 by joint decision of Snipes and Perl-mutter. See Tr. at 206. After the monitoring had ceased, Snipes asked Perlmutter if it was necessary to bring the tapes to Perl-mutter’s office for sealing. Perlmutter told Snipes that would not be necessary, since the Venuti tapes did not have to be sealed in accordance with Title III until after Judge Cooper’s extension order expired. See Tr. at 207.

Although the extension order expired on Friday, November 30, Snipes waited until Monday, December 3, 1984, to remove the rest of the Venuti tapes from the DEA evidence vault and bring them to Perlmutter’s office. See Tr. at 207. Although Snipes testified that he was generally familiar with the proper procedures for monitoring and safeguarding tapes of oral and electronic surveillance, see Tr. at 203-04, he wrongly assumed that weekend time was excluded from Title Ill’s immediate sealing mandate, see Tr. at 229. In any event, when Snipes delivered the tapes on December 3rd, he asked Perlmutter about the need to seal the tapes in compliance with Title III, see Tr. at 232. In response, Perl-mutter said that he and Snipes should be more concerned with completing the affidavits and search warrants that had to be prepared prior to the arrest of the defendants in this case. See Tr. at 233. Perlmutter also told Snipes that he had checked with Judge Cooper’s chambers and had been told that the Judge was out of town and thus unavailable to seal the tapes. See Tr. at 209, 233. At the pre-trial evidentiary hearing, Snipes testified that he has since learned that Judge Cooper was not out of town that week, but was in fact conducting a civil trial in his courtroom in the Southern District of New York. See Tr. at 209. On Friday, December 7, 1984, Judge Cooper did seal the Venuti tapes in the presence of Perlmutter and Snipes.

2. The Ciccio Tap

The Ciccio Tap was authorized by order of Judge Cooper signed November 8, 1984. The order expired on Saturday, December 8, 1984. Once again, Snipes did not retrieve the tapes from the DEA vault during the weekend, but waited until Monday, December 10th to bring the Ciccio tapes to Perlmutter’s office. See Tr. at 212.

On December 10th or 11th, Snipes asked Perlmutter when he would seal the Ciccio tapes. Perlmutter told Snipes that he would take care of it, but that he had other responsibilities that he thought were more important. See Tr. at 213. Later that week, responding to a direct inquiry, Perl-mutter told Snipes he would take care of the tapes. See Tr. at 213-14. From December 10th until either December 18th or 19th, Snipes periodically checked to see whether the Ciccio tapes (which were lying in a corner of Perlmutter’s office, see Tr. at 232) had been sealed. See Tr. at 214. On December 18th or 19th, Snipes learned that the Venuti investigation had been transferred to Assistant United States Attorney Jess Fardella (“Fardella”), and that Perl-mutter was no longer responsible for the case. See Tr. at 214. Snipes then told Fardella that the tapes had not been sealed. On Friday, December 21st, the Ciccio tapes were sealed by Hon. Whitman Knapp, District Judge of this Court.

3. Supervision of Daniel Perlmutter in the United States Attorney’s Office

As an Assistant United States Attorney in the Southern District of New York, Perl-mutter was assigned to both the Organized Crime Drug Enforcement Task Force and to the Narcotics Unit. His participation in the Venuti investigation arose out of his involvement in the Narcotics Unit, of which he had been a member sinee the late summer or early fall of 1983. See Tr. at 20. His direct supervisor during the Venuti investigation was Rhea Kemble Brecher (“Brecher”), Chief of the Narcotics Unit.

Part of Brecher’s responsibilities as the head of the Narcotics Unit was to review certain substantive work prepared by the attorneys under her supervision, such as factual affidavits that are submitted in order to get court authorization for wiretaps. See Tr. at 22. In the fall of 1984, it was not Brecher’s policy to review an Assistant United States Attorney’s compliance with Title III sealing requirements, which she regarded as a purely ministerial task that did not require supervision. See Tr. at 24. Recently, Brecher has made it her practice to ask Assistant United States Attorneys in her unit who are involved in oral or electronic surveillance whether they have satisfied the statutory sealing requirement, see Tr. at 38-39. But the Narcotics Unit has never had a “tickler” system, i.e., a system whereby each attorney receives written notification of their daily responsibilities, see Tr. at 39.

At least until the end of 1984, Brecher considered Perlmutter an excellent Assistant United States Attorney. See Tr. at 21. Brecher was generally aware, in November and December of 1984, that Perlmutter was having marital difficulties and felt overworked, see Tr. at 25, but she did not believe that these problems were affecting the quality of his work, see Tr. at 27-28. At no time in 1984 did Brecher even remotely suspect that Perlmutter was using cocaine. See Tr. at 28.

Brecher discussed Perlmutter’s problems with his workload and his marriage with Bart M. Schwartz, the then Chief of the Criminal Division. With Schwartz’s assent, Brecher decided to offer Perlmutter the opportunity to take a week’s vacation between Christmas and New Year’s. See Tr. at 77. The decision to transfer responsibility for the Venuti investigation from Perl-mutter to Fardella, however, was not related to Brecher’s concerns about Perlmutter’s personal problems. Rather, the reassignment was based on Brecher’s prior determination that she would eventually relieve Perlmutter of his duties in the Venuti investigation in the event that another case of which Perlmutter was in charge actually went to trial. See Tr. at 62; see also Tr. at 220-21.

B. The Government’s Explanation for the Sealing Delays

1. Prosecutor’s Workload

The government’s original explanation for the sealing delays, that the prosecutor in charge was simply too overworked, is not without support in the record. During the evidentiary hearing, Brecher testified that Perlmutter had one of the heaviest workloads among the Assistant United States Attorneys in the Southern District’s Narcotics Unit, see Tr. at 20, testimony which should be considered in light of the fact that the Narcotics Unit as a whole is overworked, see Tr. at 19. In the fall of 1984, Perlmutter had primary responsibility on at least two major narcotics investigations, as well as responsibility for numerous matters of lesser stature. See Tr. at 30-31. Perlmutter’s colleagues noticed that Perlmutter was working hard on a large number of cases. See, e.g., Tr. at 458-59. Brecher herself testified that in the months preceding late December, 1984, Perlmutter frequently worked six and seven days a week and often late at night. See Tr. at 20.

Although such evidence is obviously relevant to my general inquiry in this case, I do not find it dispositive on the issue of “satisfactory explanation.” The difficulty in accepting Perlmutter’s heavy workload as justification in and of itself for the delays in sealing the Yenuti and Ciccio tapes is that the government has not presented this Court with a complete itinerary of Perlmutter’s activities during the critical period of November 30 to December 19, 1984. Although Special Agent Snipes testified that Perlmutter was busily engaged in several tasks following the arrests in the Venuti investigation, see Tr. at 217-20, no witness other than Snipes was able to testify in significant detail with regard to Perlmutter’s work schedule in December, 1984.

This lack of precise ptoof compares unfavorably with the more complete evidence relied on by the Second Circuit in United States v. Vazquez, 605 F.2d 1269 (2d Cir.1979), cert. denied, 444 U.S. 981, 100 S.Ct. 484, 62 L.Ed.2d 408 (1980), a case in which the government convinced the Court that sealing delays ranging from 7 to 13 days were acceptable where the constant demands of an ongoing criminal investigation had taken up all the available time of government personnel. See 605 F.2d at 1279. In contrast, the record in this matter contains various indications that Perlmutter was not always devoting his full energies to the Venuti investigation at the time when his obligation to seal the tapes arose. Moreover, testimony that Perlmutter, on at least one occasion, told Snipes that he had more important things to be concerned about than sealing tapes, see Tr. at 213, is not helpful to the government’s position herein. See United States v. Massino, 605 F.Supp. 1565, 1578 (S.D.N.Y.1985) (“[mjere disregard of the [sealing requirement] while pursuing other investigative efforts is not sufficient”); United States v. Ramirez, 602 F.Supp. 783, 792 (S.D.N.Y.1985) (in determining whether there exists a satisfactory explanation for a sealing delay, the Court must “ascertain that the delay was not caused by the Government’s plain and simple failure to regard sealing the tapes as a priority”).

In raising the foregoing considerations, I do not intend to discredit entirely the explanation of overwork. Perlmutter’s heavy workload undoubtedly contributed to the sealing delays in this case. I do find, however, that Perlmutter’s workload, by itself, cannot be said to provide adequate justification for the sealing delays here at issue.

2. Prosecutor’s Emotional Stress, Physical Illness and Substance Abuse

It is now clear, however, that there is more to this matter than an overworked prosecutor. In the fall of 1984, Perlmutter was besieged by personal difficulties. His marriage was steadily deteriorating, a problem that he discussed with his friends at work see, e.g., Tr. at 223, and that he believed to have been largely caused by his excessive workload at the United States Attorney’s Office. His supervisor Brecher testified that in late November or early December of 1984, Perlmutter walked into Brecher’s office and told her, “I just want you to know that if my marriage ends, you should feel guilty about it, because you will be responsible.” Tr. at 25.

There was also considerable testimony at the pre-trial evidentiary hearing that Perl-mutter was physically ill during the first three weeks of December, the time during which his duty to seal the Venuti and Ciccio tapes arose. Snipes testified that during that period Perlmutter appeared to be suffering from a chest cold, and that he had once told Snipes that he had gone to a doctor to be treated for inflamed lungs. Tr. at 222. Assistant United States Attorney Robert B. Bucknam testified that, for at least two weeks in December, 1984, Perl-mutter had a “severe” cold and was exhibiting “flu-like” symptoms. Tr. at 459. Assistant United States Attorney Edward J. Little, now Deputy Chief of the Narcotics Unit, testified that during the period in question Perlmutter had lost five to ten pounds, Tr. at 445, and that Little thought Perlmutter might have had “walking pneumonia,” Tr. at 443. It is a matter of record that on December 14, 1984, the day that defendants in this case were arraigned, Perlmutter appeared tired and ill, and was accompanied to court by Little. See Tr. at 48. Case Agent Snipes testified that on that same day Perlmutter looked tired, and told Snipes that his chest was bothering him. Tr. at 242.

This Court has previously held that, under the circumstances of an individual case, a prosecutor’s illness may provide part of a satisfactory explanation for a sealing delay. See United States v. Aloi, 449 F.Supp. 698, 727 (S.D.N.Y.1977); United States v. Caruso, 415 F.Supp. 847, 850 (S.D.N.Y.1976), aff'd mem., 553 F.2d 94 (2d Cir.1977). Defendants have sought to distinguish such authority on the grounds that the prosecutor’s illness in this case was self-induced. Defendants argue that Perlmutter’s physical incapacity during December, 1984 was inextricably related to his use of cocaine during the same period. By his own admissions, Perlmutter was using one-half gram of cocaine on a daily basis during December, 1984. See Hearing Exhibits 3504B at 2; 3504H at 2. I do not disagree that, with the advantage of hindsight, such an inference is supported by the record. But the inference that Perl-mutter was sick because he was using drugs does not change the fact that he was sick, and therefore perhaps ill-equipped to deal with his statutory obligation to seal the Venuti and Ciccio tapes.

Moreover, Perlmutter’s drug use itself suggests an independent explanation for the sealing delays. Perlmutter has specifically stated that he was so distracted by his cocaine use during November and December of 1984 that he often spent time contemplating, during the performance of his official duties, how he was going to obtain and consume cocaine during the evening hours. See Transcript of August 29, 1985 Interview of Daniel Perlmutter by F.B.I. Special Agent Anthony J. Nelson, Hearing Exhibit 3504H at 2. The clear inference is that Perlmutter was simply not paying attention to his duties.

Ultimately, the explanation now prof-erred by the government for the delays in sealing the Venuti and Ciccio tapes is not composed of a single facet, and should not be evaluated as if it were. The government does not contend that Perlmutter failed to satisfy his obligation of timely sealing just because he was overworked, or just because he was abusing cocaine. Rather, the government contends that the explanation for Perlmutter’s nonfeasance lies in the astonishing amalgam of personal difficulties that plagued him in December, 1984. The government concedes that this explanation is not at all “satisfying,” but insists that it may be regarded as “satisfactory” within the law of this Circuit. See Tr. at 543.

3. The Adequacy of the Government’s Explanation

In considering whether an explanation for sealing delays is satisfactory within the meaning of 18 U.S.C. 2518(8)(a), this Court should consider: first, the length of the delay; second, whether there was evidence of tampering; third, how much time was required to prepare the tapes for sealing; and fourth, whether defendants were prejudiced by the delays. United States v. McGrath, 622 F.2d 36, 42-43 (2d Cir.1980).

An application of the McGrath factors to the instant case clearly works to the advantage of the government rather than to the defendants. Here, the sealing delays of 7 and 13 days were, in the words of the Second Circuit, “not miniscule, [but] neither were they of Gigante proportions.” United States v. Vazquez, 605 F.2d at 1280 (comparing delays ranging from 7 to 13 days to the delays of 8 to 12 months at issue in Gigante). Furthermore, there was no evidence of tampering in this case and no apparent prejudice to defendants caused by the sealing delays.

In short, this case involves brief sealing delays that did not prejudice in any way the substantive rights of defendants. Quite significantly, when confronted with sealing delays of similar brevity, the Second Circuit has never chosen to suppress wiretap evidence. See United States v. McGrath, 622 F.2d at 43 (delays ranging form 3 to 8 days); United States v. Vazquez, 605 F.2d at 1279 (delays ranging from 7 to 13 days); United States v. Scafidi, 564 F.2d 633, 641 (2d Cir.1977) (short sealing delays). But cf. United States v. Ricco, 421 F.Supp. 401, 411 (S.D.N.Y.1976), aff'd mem., 566 F.2d 433 (2d Cir.1977), cert. denied, 436 U.S. 926, 98 S.Ct. 2819, 56 L.Ed.2d 768 (1978) (sealing delays of 2 weeks not excusable under criminal procedure law of New York State).

Nonetheless, the requirement that recordings of intercepted conversations be sealed and stored immediately upon the expiration of the judicial order authorizing surveillance is “an integral part” of the statutory scheme of Title III. United States v. Gigante, 538 F.2d at 505. The obvious danger in excusing even brief sealing delays is that such excusal may inadvertently send a signal to the government that it need not treat seriously its statutory obligation of timely sealing. I am convinced, however, that such a danger does not exist in this case. The delays in sealing the Venuti and Ciccio tapes did not occur because the Narcotics Unit failed to regard the sealing requirements of Title III to be of paramount importance. Rather, it is my finding that the delays occurred because of the inability of a sick and severely troubled prosecutor to recognize his obligations under federal law.

This last finding is significant for two reasons. First, it casts doubt on whether the absence of a “tickler” system in the United States Attorney’s Office (stressed by defendants throughout these proceedings) may truly be regarded as a proximate cause of the sealing delays in this matter. It is hard to imagine that Perlmutter would have been more likely to seal the Venuti and Ciccio tapes promptly had a print-out appeared on his desk reminding him of his obligation. Indeed, the record is clear that Snipes expressly reminded Perlmutter of that obligation on several occasions, to no avail.

Second, once the sealing delays in this case have been properly characterized as the direct result of Perlmutter’s individual crisis, a serious question is raised as to whether the suppression of the Venuti and Ciccio tapes can serve any useful purpose. In particular, the unique facts of this case suggest that suppressing the tapes will have no deterrent effect on future government misconduct. This is an important consideration, given the observation of the Supreme Court, made in the context of the Fourth Amendment, that the use of an exclusionary rule that does not result in appreciable deterrence is unwarranted. See United States v. Leon, - U.S. -, 104 S.Ct. 3405, 3414, 82 L.Ed.2d 677 (1984) (citing United States v. Janis, 428 U.S. 433, 454, 96 S.Ct. 3021, 3032, 49 L.Ed.2d 1046 (1976)); see also United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974) (application of the exclusionary rule is properly “restricted to those areas where its remedial objectives are thought most efficaciously served”).

Although I am convinced that analyzing the utility of excluding probative evidence is an entirely proper approach, see United States v. Leon, 104 S.Ct. at 3413, my decision with regard to defendants’ motion to suppress is not based on such an analysis. Rather, guided by the law of this Circuit, as most recently set forth in United States v. McGrath, supra, my sole concern is whether the government’s explanation for the sealing delays in this case is “satisfactory” within the meaning of 18 U.S.C. § 2518(8)(a). My conclusion, after reviewing the unique and unprecedented facts of this case, is that the government has satisfied its statutory burden of explanation. This determination is influenced by the marked brevity of the delays, as well as the absence of indicia of government misconduct or of prejudice to the defendants. See United States v. McGrath, 622 F.2d at 42-43. Accordingly, I find that the government has offered a satisfactory explanation for the sealing delays in this case, and I will not suppress the Venuti or Ciccio tapes as evidence at trial.

SO ORDERED.

      . The fruits of the Venuti tap and the Ciccio tap will be referred to throughout this opinion as the Venuti tapes and the Ciccio tapes, respectively-

        . As I noted in the August 27 Memorandum and Order at 5, the Second Circuit has reserved ruling on this specific aspect of the statutory sealing requirements. See United States v. Vazquez, 605 F.2d 1269, 1278 n. 21 (2d Cir.),
        cert. denied, 444 U.S. 981, 100 S.Ct. 484, 62 L.Ed.2d 408 (1980).

      . In reaching a decision with regard to defendants’ motion to suppress, I have considered evidence of Perlmutter's use of cocaine during the fall of 1984. It is a matter of public record that in May of 1985, Perlmutter was arrested on charges relating to the theft of narcotics and money from the United States Attorney’s Office in the Southern District of New York (Subsequently, he pleaded guilty to 3 counts of theft under 18 U.S.C. § 641, and 2 counts of possession of controlled substances under 21 U.S.C. § 844). Nonetheless, as I indicated on numerous occasions during the course of the suppression hearing in this case, what Perlmutter did or did not do during the first five months of 1985 is not relevant to this Court’s specific inquiry— the existence vel non of a satisfactory explanation for the delays in sealing the Venuti and Ciccio tapes. In contrast, what Perlmutter did or did not do during the first three weeks of December (the period in which his obligation to seal the tapes arose) is quite relevant to the merits of defendants’ motion to suppress. Accordingly, evidence pertaining to his activities during December, 1984 was generally admitted in the course of the suppression hearing, while evidence pertaining to his activities during 1985 was generally excluded as irrelevant. See Fed. R.Evid. 402 (relevant evidence generally admissible; irrelevant evidence generally inadmissible).

      . The Gigante Court relied on the statute's directive that "[t]he presence of the seal ..., or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire or oral communication.” 18 U.S.C. 2518(8)(a). As the Second Circuit has acknowledged, other federal courts of appeal have construed the language of § 2518(8)(a) to require suppression of improperly sealed tapes only upon an affirmative showing of tampering. See United States v. Vazquez, 605 F.2d 1269, 1275 (2d Cir.1979), cert. denied, 444 U.S. 981, 100 S.Ct. 484, 62 L.Ed.2d 408 (1980) (citations omitted).

      . A virtually identical procedure was followed with regard to the Ciccio tapes. See Tr. at 212.

      . Snipes was the "case agent” in charge of coordinating the DEA's involvement in the Venuti investigation with the United States Attorney's Office in the Southern District of New York. Snipes, who worked closely with Perlmutter, testified at considerable length during the pretrial evidentiary hearing in this case and submitted an affidavit to the Court.

      . Since the order authorizing the Venuti tap was extended until November 30, it was not strictly necessary for the government to have the October Venuti tapes sealed as early as November 2. The sealing requirement of 18 U.S.C. § 2518(8)(a) is triggered only when an authorizing order, including all extensions, has expired. See United States v. Vazquez, 605 F.2d at 1276 & n. 15; United States v. Fury, 554 F.2d 522, 533 (2d Cir.), cert. denied, 433 U.S. 910, 97 S.Ct. 2978, 53 L.Ed.2d 1095 (1977).

      . To the extent that any factual ambiguity remains with respect to Judge Cooper’s availability during the week of December 3, 1984, there is no need for this Court to resolve it. Even if Judge Cooper had in fact been unavailable, the government’s sealing obligation would not have been postponed. It is now well-settled in this Circuit that tapes may be sealed by a judge other than the "issuing judge” when the latter is absent or unavailable. See United States v. Vazquez, 605 F.2d at 1280 n. 25.

      . According to Narcotics Unit Chief Brecher, "Most of the unit members work generally every evening till 7:30 or later. Many of the unit members work one or more days on the weekend, and during heavy times, that is to say, trial preparation, on trial, during a wiretap, something like that, it can be late every night and both days of the weekend.” Tr. at 19.

      . As I have already indicated, Perlmutter was arrested in May, 1985 on charges relating to the theft of narcotics and money from the United States Attorney’s Office in the Southern District. Subsequently, he engaged in a series of debriefings with the Federal Bureau of Investigation. When Perlmutter himself was subpoenaed as a witness in the pre-trial evidentiary hearing in this case, redacted sets of the handwritten notes and typed transcriptions of those debriefings were turned over to defendants pursuant to the Jencks Act, 18 U.S.C. § 3500, et. seq. Eventually, I ruled that Perlmutter, who had asserted his Fifth Amendment right against self-incrimination, did not have to testify in these proceedings. Nonetheless, the 3500 materials relating to Perl-mutter remained part of the record and were in fact moved into evidence at several points during the pre-trial evidentiary hearing. Both defendants and this Court have relied on the comments made by Perlmutter in his debriefings as credible evidence with regard to Perlmutter’s cocaine use during 1984. See Defendants' Proposed Post-Hearing Findings of Fact and Conclusions of Law at 20-21.

      . Certainly, the facts of this case bear out, to an unprecedented degree, Judge Pollack's observation that every case in this area of the law is sui generis. United States v. Caruso, 415 F.Supp. at 851.

      . Defendants have argued on several occasions that the Government should not be allowed to use Perlmutter’s mental and physical incapacity as justification for the sealing delays because the Southern District United States Attorney’s Office knew or should have known that Perl-mutter was abusing cocaine in November and December, 1984. It is not at all clear whether such an "estoppel" theory may be fairly applied to the government’s burden, under 18 U.S.C. 2518(8)(a), to provide a satisfactory explanation for sealing delays. In any event, however, I find as a matter of fact that the government did not know that Perlmutter was using illegal drugs in November and December of 1984. This finding is supported by Perlmutter’s own statements to the Federal Bureau of Investigation on August 8, 1985, see Hearing Exhibit 3504H at 2, and by the testimony given by several witnesses during the pre-trial evidentiary hearing in this case. Similarly, there is no basis in the record for finding that the government should have known of Perlmutter’s drug use in 1984. It is true that, with the benefit of hindsight, one might conclude that Perlmutter’s poor health in December, 1984 was caused, in part, by his drug use. At the time, however, there was no reason for Perlmutter’s colleagues at the United States Attorney’s Office to have made that connection.

      . In fairness to defendants, there was only a minimal showing in this case that the sealing delays were caused by administrative difficulties. Proof by the government of such difficulties {e.g., the need to inventory original tapes and ensure the availability of duplicates) has, in some cases, satisfied Title Ill's "satisfactory explanation" requirement and obviated the need for further inquiry. See United States v. Massino, 605 F.Supp. 1565, 1578 (S.D.N.Y.1985). In the instant case, however, the government conceded that duplicate original tapes were prepared at the time of monitoring, thus greatly reducing the time required to prepare the tapes for sealing. See Tr. at 525.
      I should add, however, that the to 2 or 3 day delay in sealing the Ciccio tapes caused by the transfer of the Venuti investigation from Perl-mutter to Fardella appears to fall clearly within the administrative "mishap” category. See United States v. Caruso, 415 F.Supp. 847, 850-851 (S.D.N.Y.1976), aff’d mem., 553 F.2d 94 (2d Cir.1977) (re-assignment of case to another assistant district attorney part of government’s "sufficient and satisfactory explanation” for 42-day sealing delay).

      . A recent decision by the New York Court of Appeals suggests that the immediate sealing requirement of New York State's Criminal Procedure Law, N.Y.C.P.L. 700.50(2), unlike its federal counterpart, may be violated even by a two-day delay. See People v. Gallina, 66 N.Y.2d 52, 485 N.E.2d 216, 495 N.Y.S.2d 9 (October 15, 1985). In contrast, the Second Circuit has indicated that such a delay might even constitute “immediate” sealing within the meaning of 18 U.S.C. 2518(8)(a). See United States v. Vazquez, 605 F.2d at 1278.

      . By defendants' own concession, there has been only one instance, from 1981 to the present, in which a Narcotics Unit prosecutor from the Southern District of New York, other than Perlmutter, failed to arrange for the timely judicial sealing of the fruits of electronic surveillance. Defendants’ Proposed Post-Hearing Findings of Fact and Conclusions of Law at 27. Apparently, the Southern District United States Attorney’s Office has taken heed of the Second Circuit’s admonition that ”[a]s the federal and state case law in this area grows, the failure to foresee and where possible, prevent sealing delays becomes less justifiable, as law enforcement officials must be expected to learn from their own experiences and those of others.” United States v. Vazquez, 605 F.2d at 1280.

      . Arguably, a direct inquiry from Narcotics Unit Chief Brecher might have been even more effective than Snipes’ reminders. Indeed, Perl-mutter’s mistakes have prompted Brecher, in her efforts to bring her Unit into absolute compliance with Title III, to make such direct inquiries of the attorneys under her supervision concerning tapes in their possession that require sealing. Brecher’s new practice, however, only demonstrates that the government learns from experience in striving to satisfy the immediate sealing requirement of § 2518(8)(a) with increasing precision, a progression that has been anticipated by the Second Circuit. See Vazquez, 605 F.2d at 1280. But the government should not be condemned for acquiring wisdom, as it would be were this Court to suppress the tapes on the dubious premise that they would have been timely sealed but for the lack of a personal intervention by Perlmutter’s supervisor. In this area of the law, "the government’s lack of foresight ... does not justify the exclusion of probative evidence lawfully obtained.” Id. at 1279.

      . The Title III jurisprudence of the Second Circuit suggests that the exclusionary rule of 18 U.S.C. § 2518(8)(a) serves not only to deter government misconduct, but also to ensure the integrity of the fruits of oral and electronic surveillance. See United States v. Gigante, 538 F.2d at 505 (noting the inherent difficulty in detecting official tampering with wiretap evidence). Thus, in deciding whether the exclusion of probative evidence is warranted herein, this Court should consider whether the circumstances of this matter suggest even a barely credible inference of surreptitious tampering.
      No such inference can be drawn from the record in this case. While the government was conducting the Venuti and Ciccio taps, the original tapes were heat-sealed in plastic envelopes and placed in a DEA vault on a daily basis. See Tr. at 525. When the judicial orders authorizing the taps expired, Case Agent Snipes brought the tapes to the Southern District United States Attorney’s Office and left them in Perlmutter’s office (the Venuti tapes were brought to Perl-mutter’s office on December 3, 1985; the Ciccio tapes were brought to Perlmutter’s office on December 10, 1985). See Tr. at 207, 212. Thus, for most of the period during which the tapes should have been judicially sealed, but were not, the tapes were in the custody of a sick, overworked and lamentably inattentive prosecutor. See Tr. at 232 (tapes remained in Perlmutter’s office). Such evidence does not even remotely suggest the possibility of official tampering.
      Thus, a sound argument can be made that the application of the exclusionary sanction in the instant case is not appropriate, since it would neither deter government misconduct, nor prevent the possible introduction of tainted evidence. Indeed, under such circumstances, the exclusion of wiretap evidence only serves to "impede unacceptably the truth-finding functions of judge and jury." United States v. Payner, 447 U.S. 727, 734, 100 S.Ct. 2439, 2445, 65 L.Ed.2d 468 (1980).


author: STROM, District Judge.

text:
    Ralph LILES, et al., Plaintiffs, v. Ronald E. REAGAN, Defendant.
    No. CV. 85-0-797.
    United States District Court, D. Nebraska.
    Jan. 13, 1986.

      Michael P. Farris, Education & Legal Defense Foundation, Washington, D.C., for plaintiffs.
    Robert M. Spire, Atty. Gen., J. Kirk Brown, Asst. Atty. Gen., Lincoln, Neb., for defendant.
   MEMORANDUM OPINION

STROM, District Judge.

This matter is before the Court on defendant’s motion to dismiss (Filing No. 6). Plaintiffs filed this action alleging deprivation of constitutional rights in violation of 42 U.S.C. § 1983 (Count 2) and oppression under color of office pursuant to Neb.Rev. Stat. § 28-926 (Counts 1 and 3). Oppression under color of office is asserted as an independent federal claim in Count 1 of plaintiffs’ complaint and as a pendent state claim in Count 3 of the complaint. Jurisdiction is premised upon 28 U.S.C. § 1343.

Plaintiffs’ allegations stem from actions of Nebraska District Court Judge Ronald Reagan. Judge Reagan allegedly jailed plaintiffs for contempt of court as a result of their failure to follow court orders and conditioned his recusal from a subsequent habeas corpus proceeding upon dismissal of a pending federal habeas corpus action.

Defendant asserts that plaintiffs’ complaint fails to state a claim upon which relief can be granted for the reason that he is absolutely immune from suit.

Plaintiffs contend that Judge Reagan is not immune from suit for the reason that he acted in absence of jurisdiction with regard to his actions involving the habeas corpus petition. Plaintiffs also contend that a state court judge is not immune from prosecution under Neb.Rev.Stat. § 28-926, and that this Court has jurisdiction over suits arising under that statute.

For the reasons set forth below, the Court finds that plaintiffs have failed to state a claim upon which relief can be granted with respect to the 42 U.S.C. § 1983 claim (Count 2) and the court is without jurisdiction to hear claims based upon Neb.Rev.Stat. § 28-926 (Counts 1 and 3). Accordingly, plaintiffs’ complaint will be dismissed.

In considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6), allegations in the complaint must be viewed in the light most favorable to the plaintiff. Fusco v. Xerox Corp., 676 F.2d 332, 334 (8th Cir.1982). “A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957) (footnote omitted).

It is clear on the face of the complaint that plaintiffs can prove no set of facts which would entitle them to relief. It is admitted in Paragraph 2.1 of the complaint that defendant Ronald E. Reagan is a district court judge for the State of Nebraska. In Subsection IV of the complaint, plaintiffs allege, inter alia, that Judge Reagan first ordered plaintiffs to show cause why they were not in contempt of the court’s previous injunction. Subsequently, plaintiffs appeared before Judge Reagan but refused to answer questions from the judge, asserting their fifth amendment privilege. Judge Reagan then ordered plaintiffs jailed for contempt. It is further alleged that Judge Reagan proceeded to hear further evidence in the contempt proceeding without counsel or the parties present and that Judge Reagan refused to appoint counsel for plaintiff Ralph Liles. Plaintiffs additionally allege Judge Reagan deprived them of rights by conditioning his recusal from a state habeas corpus proceeding upon plaintiffs’ dismissal of a pending federal habeas corpus action.

The factual circumstances outlined above show that Judge Reagan was acting in his capacity as a judge and plaintiffs were dealing with him in that capacity. All of the actions taken by Judge Reagan were functions normally performed by a judge. There are no allegations that Judge Reagan did not have jurisdiction to preside over either contempt or habeas corpus proceedings. Judge Reagan is absolutely immune from suit for judicial acts under the doctrine of judicial immunity.

The doctrine of absolute judicial immunity will protect a judge against liability for a given act if two conditions are satisfied. First, the act must not have been taken in the “clear absence of all jurisdiction.” Stump v. Sparkman, 435 U.S. 349, 357, 98 S.Ct. 1099, 1105, 55 L.Ed.2d 331 (1978). Second, the act must be a “judicial act.” Id. at 356, 98 S.Ct. at 1104-05.

In Stump v. Sparkman, supra, the United States Supreme Court considered a suit against a judge who ordered sterilization of a petitioner’s “somewhat retarded” daughter in an ex parte proceeding, without notice to the daughter and without appointment of a guardian ad litem. Reversing a decision of the Seventh Circuit Court of Appeals which imposed liability upon the judge, the Supreme Court discussed the jurisdictional condition, stating that:

... As early as 1872, the Court recognized that it was “general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, [should] be free to act upon his own convictions, without apprehension of personal consequences to himself. Bradley v. Fisher, [13 Wall. 335, 20 L.Ed. 646 (1872) ], supra, at 347. For that reason the Court held that “Judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly.” 13 Wall., at 351. Later, we held that this doctrine of judicial immunity was applicable in suits under Section 1 of the Civil Rights Act of 1871, 42 U.S.C. § 1983, for the legislative record gave no indication that Congress intended to abolish this long-established principle. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967).
The Court of Appeals correctly recognized that the necessary inquiry in determining whether a defendant judge is immune from suit is whether at the time he took the challenged action, he had jurisdiction over the subject matter before him. Because “some of the most difficult and embarrassing questions which a judicial officer is called upon to consider and determine relate to his jurisdiction....” Bradley, supra, at 352, the scope of the judge’s jurisdiction must be construed broadly where the issue is the immunity of the judge. A judge will not be deprived of immunity because the action he took was in error, was done maliciously or was in excess of his authority; rather he will be subject to liability only when he acted in the “clear absence of all jurisdiction.” 13 Wall., at 351.

Id. at 355-57, 98 S.Ct. at 1104-05.

The Court explained the distinction between “absence of jurisdiction” and “excess of jurisdiction” in footnotes as follows:

In holding that a judge was immune for his judicial acts, even when such acts were performed in excess of his jurisdiction, the Court in Bradley, stated: “A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject matter. Where there is clearly no jurisdiction over the subject matter, any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible. But where jurisdiction over the subject matter is invested by law in the judge, or in the court which he holds, the manner and extent in which the jurisdiction shall be exercised are generally as much questions for his determination as any other questions involved in the case, although upon the correctness of his determination in these particulars, the validity of his judgments may depend.” Id., at 351-52.
In Bradley, the court illustrated the distinction between lack of jurisdiction and excessive jurisdiction with the following examples: If a probate judge with jurisdiction over only wills and estates, should try a criminal case, he would be acting in the clear absence of jurisdiction and would not be immune from liability for his actions; on the other hand, if a judge of a criminal court should convict a defendant of a nonexistent crime, he would merely be acting in excess of his jurisdiction and would be immune. Id., at 352.

Id., at 356-57 n. 6 and n. 7, 98 S.Ct. at 1104-05 n. 6 and n. 7.

Accordingly, this Court is compelled to construe the scope of Judge Reagan’s jurisdiction broadly. Stump v. Sparkman, supra, at 356, 98 S.Ct. at 1104. Like the court at issue in Stump, the district courts of Nebraska have a broad jurisdictional grant. “The district courts have both chancery and common law jurisdiction and such other jurisdiction as the legislature may provide.” Neb. Const. Art. V, § 9. The legislature has provided that “the district courts should have and exercise general, original and appellate jurisdiction in all matters, both civil and criminal, except when otherwise provided.” Neb.Rev.Stat. § 24-302 (1979). Additionally, Nebraska state district court judges are given the express jurisdiction to hear matters relating to state habeas corpus petitions. Neb. Rev.Stat. §§ 29-2801, et seq., (1979).

Judicial immunity except in the clear absence of jurisdiction has been applied in this Circuit. In Duba v. McIntyre, 501 F.2d 590, 591 (1974), the Eighth Circuit Court of Appeals held that the doctrine of judicial immunity was properly invoked to shield the conduct of a justice of the peace who attached and sold an entire stock of hogs belonging to plaintiff therein in pretextual satisfaction of a $55 misdemeanor fine. The Court noted that Nebraska law authorized judicial officers, including justices of the peace, to issue executions to recover fines and stated that “[w]e think that Judge Robinson was correct in holding that appellee’s conduct, even though in excess of their jurisdiction, was within their general powers under Nebraska law and, therefore, cloaked with immunity for the purpose of a civil rights action under Section 1983.” Id. at 593. For more recent Eighth Circuit support, see Billingsley v. Kyser, 691 F.2d 388 (8th Cir.1982), and Michaelis v. Krivosha, 566 F.Supp. 94 (D.Neb.), aff'd, 717 F.2d 437 (8th Cir.1983).

Similarly, Judge Reagan’s actions in the present case may arguably been in excess of his jurisdiction, but it is clear that Judge Reagan had the power to hear and decide upon the issue before him. As long as the habeas corpus petition was properly before the court, the manner by which Judge Reagan handled it is cloaked with immunity.

The second condition imposed by the Supreme Court in Stump v. Sparkman, supra, at 360, 98 S.Ct. at 1106 is that the act must be a “judicial act.” The court stated:

The relevant cases demonstrate that the factors determining whether an act by a judge is a “judicial” one relate to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity.

Id. at 362, 98 S.Ct. at 1107-08. The Eighth Circuit follows the above criteria. White v. Bloom, 621 F.2d 276, 279 (8th Cir.), cert. denied, 449 U.S. 995, 101 S.Ct. 533, 66 L.Ed.2d 292 (1980), reh. denied, 449 U.S. 1089, 101 S.Ct. 882, 66 L.Ed.2d 816 (1981).

Comparison of the present facts to those in cases holding acts of judges to have been non-judicial show that Judge Reagan was clearly acting within the ambit of his judicial capacity. Compare, Rankin v. Howard, 633 F.2d 844 (9th Cir.1980) (a judge’s private prior agreement to decide in favor of one party is not a judicial act), cert. denied, 451 U.S. 939, 101 S.Ct. 2020, 68 L.Ed.2d 326 (1981); Lopez v. Vanderwater, 620 F.2d 1229, 1235-37 (7th Cir.1980) (a judge is not immune for prosecutorial acts prior to biased decision, but nonetheless immune from liability for decision); Gregory v. Thompson, 500 F.2d 59, 64 (9th Cir.1974) (an assault is not a judicial act); and Lynch v. Johnson, 420 F.2d 818 (6th Cir.1970) (a judge is not entitled to absolute immunity for acts taken while serving on an administrative or legislative board).

The Fifth Circuit has refined the Spark-man criteria to a four-part test to determine whether a given act is judicial. Though not dispositive, reference to the Fifth Circuit guidelines is helpful. The Court’s inquiry is whether (1) the act complained of is a normal judicial function; (2) the events occurred in the judge’s court or chambers; (3) the controversy centered around a case then pending before the judge and (4) the confrontation arose directly and immediately out of a visit to a judge in his official capacity. Brewer v. Blackwell, 692 F.2d 387, 396-97 (5th Cir.1982).

Another relevant factor is the availability of appellate review of the questioned act. “[Jjudges should be at liberty to exercise their functions with independence and without fear of consequences____ Errors may be corrected on appeal but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption.” Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967). Plaintiffs herein clearly had an avenue of redress in state courts for errors or irregularities in the habeas corpus proceeding. Neb.Rev.Stat. § 29-2823. Applying the above principles to the factual allegations of plaintiffs’ complaint, the Court finds that Judge Reagan’s were clearly judicial acts.

Accordingly, plaintiffs’ Section 1983 claim is dismissed for failure to state a claim upon which relief can be granted.

Plaintiffs also argue that Judge Reagan is not immune from civil liability under Neb.Rev.Stat. § 28-926, which provides:

28-926. Oppression under coior of office; penalty.
(1) Any public servant or peace officer who, by color of or in execution of his office, shall designedly, wilfully or corruptly injure, deceive, harm or oppress any person, or shall attempt to injure, deceive, harm or oppress any person, commits oppression under color of office, and shall be answerable to the party so injured, deceived or harmed or oppressed in treble damages.
(2) Oppression under color of office is a Class II misdemeanor.

As noted, the jurisdiction of this Court is invoked under 28 U.S.C. § 1343(a)(3). That section provides that:

(a) The district court shall have original jurisdiction of any civil action authorized by law to be commenced by any person: # # * * * *
(3) to redress the deprivation, under color of any state law, statute, ordinance, regulation, custom or usage of any right, privilege, or immunity secured by the constitution of the United States or by any act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States.

Plaintiffs contend that the phrase “authorized by law” includes any law, state or federal, and thus confers jurisdiction upon this court to redress a grievance based upon violation of a state statute. Such is not the case. As a matter of statutory construction, the phrase “authorized by law” is restricted by the dependent clause following in Subparagraph (3) which limits jurisdiction to any action to redress deprivation of a right “secured by the Con stitution of the United States or by any Act of Congress providing for equal rights of citizens____” (Emphasis added).

Since the federal district court is a court of limited jurisdiction, it is not appropriate for it to hear and consider the plaintiffs’ pendent claim without determining that jurisdiction is otherwise appropriate. Hagens v. Levine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974). Pendent jurisdiction may only be exercised once federal question jurisdiction has been established. Pennhurst State School v. Haldeman, 465 U.S. 89, 121, 104 S.Ct. 900, 917, 79 L.Ed.2d 67 (1984).

Moreover, plaintiffs erroneously contend in their brief that there is no authority holding that Section 1343(a) does not extend to rights protected by state statutes. On the contrary, it has been held that federal courts are granted jurisdiction under 28 U.S.C. § 1343 to vindicate only federal rights. See, e.g., Brown v. Board of Bar Examiners of State of Nevada, 623 F.2d 605, 609-10 (9th Cir.1980) and Ronwin v. State Bar of Arizona, 686 F.2d 692, 698 n. 6 (9th Cir.1981) (stating that the jurisdictional limitation stems from the express language of Section 1343), reversed on other grounds, Ronwin v. Hoover, 466 U.S. 558, 104 S.Ct. 1989, 80 L.Ed.2d 590 (1984). “[SJection 1343(3) only provides jurisdiction over claims that state officials have violated a constitutional right or federal statute providing for equal rights.” Redd v. Lambert, 674 F.2d 1032, 1035 (5th Cir.1982). See also, Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979).

In support of their position, plaintiffs cite Hoehle v. Likins, 405 F.Supp. 1167, 1171 (D.Minn.1975), for the proposition that jurisdiction under § 1343(a)(3) is appropriate when a substantial constitutional question is present. That proposition is wholly irrelevant for the reason that the presence of a constitutional right is not at issue. Although a constitutional right may arguably have been infringed, the defendant judge is absolutely immune from civil liability for his actions.

In light of this Court’s dismissal of plaintiffs’ Section 1983 claim for failure to state a claim upon which relief can be granted, plaintiffs’ claim based upon Neb. Rev.Stat. § 28-926 will also be dismissed. This Court does not have jurisdiction over the subject matter of plaintiffs’ Nebraska claim absent an independent federal question. The only issues of federal law have been disposed of through operation of the doctrine of judicial immunity. Where no federal cause remains after dismissal of a claimed civil action for deprivation of rights, pendent state law claims must also be dismissed. Long v. Citizens Bank & Trust Co. of Manhattan, Ks., 563 F.Supp. 1203 (D.Kan.1983).

Accordingly, an order will be entered this date dismissing plaintiffs’ complaint.


author: DUFF, District Judge.

text:
    MIDCON CORP., a Delaware Corp., Plaintiff, v. FREEPORT-McMORAN, INC., a Delaware Corp.; FMI Acquisition, Inc., a Delaware Corp.; Wagner & Brown, A Texas Partnership; Cyril Wagner, Jr.; Jack E. Brown, the sole partners of Wagner & Brown; Coach Acquisition Inc., a New York Corp.; WB Partners, a Texas General Partnership; BW Partners, a Texas General Partnership, Defendants.
    No. 85 C 10573.
    United States District Court, N.D. Illinois, E.D.
    Jan. 13, 1986.

      John T. Cusack, Gordon B. Nash, Jr. and Thomas Campbell, Gardner, Carton & Douglas, Chicago, 111., for plaintiff.
    James A. Klenk, Don H. Reuben and Paula E. Litt, Reuben & Proctor, Chicago, 111., for defendants.
   MEMORANDUM OPINION

DUFF, District Judge.

This matter comes before the court on the plaintiff’s motion for a preliminary injunction. Plaintiff MidCon Corporation (“MidCon”) is the owner of a pipeline system which supplies natural gas to the St. Louis and Chicago areas, among others. Defendants Freeport-McMoran, Inc. (“FMI”), Wagner & Brown (“Wagner and Brown”), Cyril Wagner, Jr., Jack E. Brown, Coach Acquisition, Inc. (“Coach”), WB Partners, and BW Partners, own or are affiliated with persons owning substantial natural gas properties in the United States.

On December 16, 1985, defendants announced a tender offer to acquire all outstanding shares of common stock of Mid-Con. MidCon asks this court to enjoin the acquisition alleging that it would violate §§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1-2, and § 7 of the Clayton Act, 15 U.S.C. § 18. Section 7 of the Clayton Act provides in relevant part:

No person engaged in commerce or in any activity affecting commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital and no person subject to the jurisdiction of the Federal Trade Commission shall acquire the whole or any part of the assets of another person engaged also in commerce or in any activity affecting commerce, where, in any line of commerce or in any activity affecting commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly. (Emphasis added.)

It should be noted that the hearing before the court was conducted on an emergency basis due to the possibility that a Federal Reserve Board rule, originally scheduled to take effect January 1, 1986, might affect the defendants’ ability to finance this proposed merger. After hearing two days of live testimony and considering the affidavits and depositions submitted, the court denied plaintiff's motion for a preliminary injunction. The court ruled orally on December 30, 1985. As stated then, to the extent that anything in this opinion is contrary to the oral ruling, the written opinion is controlling.

FACTS

Plaintiff bases its antitrust claim on the possibility that the defendants, once they gain control of the pipelines owned by Mid-Con’s subsidiaries, will force those subsidiaries to purchase gas from the defendants at inflated prices, resulting in higher gas prices for MidCon’s utility customers and, ultimately, for consumers. Nearly all of plaintiff’s evidence was presented in an attempt to support this argument.

One MidCon subsidiary, Natural Gas Pipeline Company of America (“Natural”), supplies natural gas to the Chicago area. Another subsidiary, Mississippi River Transportation Corporation (“MRT”) supplies natural gas to the St. Louis area. In addition, MidCon recently acquired United Energy Resources, Inc. (“United Energy”), which apparently supplies gas to other areas of the country. There has been little evidence concerning United Energy.

Natural and MRT purchase gas from producers and transport it through their pipelines for sale to utility companies. The companies also do some transporting business where they merely transport gas which the utilities have bought directly from the producers.

Natural buys gas in all the significant gas producing basins, onshore and offshore, in the United States with the exception of the East Coast. It buys from major producers such as Texaco, Chevron, Shell, and Exxon, as well as from independent producers. Approximately 700 to 800 producers sell to Natural, although 20 of these producers supply approximately 80% of Natural’s gas.

Natural supplies approximately 75% of the gas consumed in the Chicago area. It sells to Northern Illinois Gas Company, People’s Gas, Light and Coke Company, North Shore Gas, Northern Indiana Public Service Company, and Iowa Illinois Gas & Electric. Natural also sells to MRT.

Plaintiff’s theory that defendants would force high priced gas into MidCon’s pipelines rests on what it called MidCon’s “captive market”. According to James J. McElligott, Natural’s Assistant Vice President for rates, Natural has a captive market in the Chicago area because its competitors have the capacity to supply only 200 to 300 billion cubic feet (“bcf”) of the 700 to 900 bcf of gas consumed in the Chicago area. This leaves a demand for 500 to 600 bcf that can be filled only by Natural.

Plaintiff presented no evidence on the feasibility of building new pipelines, nor did it present significant testimony concerning the availability of alternative fuels or the price elasticity of demand for natural gas in the Chicago market. McElligott did testify, however, that some large industrial users have the capacity to use alternative fuels but that the typical homeowner is unable to switch to other energy sources.

MRT sells to Fleet Gas Company, Illinois Power Company and Laclede Gas Company which provide gas for the areas in and around St. Louis, Missouri, and St. Charles, Illinois. It is alleged that MRT supplies 90% of the gas consumed in the St. Louis area. Plaintiff did not provide any evidence on the capacity of other pipelines to supply gas to the St. Louis area. Indeed, there has been no explanation as to how the remaining 10% of the St. Louis market is supplied. There is no evidence of the capacity of other pipelines to serve that market or whether any competition is anticipated. Further, plaintiff provided no evidence concerning the source of MRT’s gas, except to state that Natural sells some gas to MRT.

Plaintiff’s witnesses testified extensively about its policy of purchasing gas at the lowest available price, apparently assuming that the defendants would abandon such a policy upon taking control of MidCon. Plaintiff buys some of its gas (the evidence does not indicate what percentage) under “take-or-pay” contracts. Under a take-or-pay contract, the pipeline company must take a certain minimum quantity of gas per year, or else be liable for the difference between that quantity and the quantity actually taken. Plaintiff says that it has been able to keep its prices low by taking a strong position in contract negotiations and by taking advantage of the latitude which these contracts allow.

McElligott attempted to establish a comparison of the prices charged by the defendants and those charged by the plaintiff. Natural’s average price for gas under contract is $2.53 per thousand cubic foot (“mcf”). McElligott also testified that Natural makes “marginal purchases” at $1.90 per mcf. Although this testimony is somewhat unclear, apparently Natural is able to make these purchases by taking the minimum amounts required under take-or-pay contracts and then making purchases on the open market to meet the demand. In considering Natural’s prices, McElligott ignored the fact that as of January 1, 1986, Natural will have incurred approximately $1 billion in take-or-pay liability.

McElligott compared these prices to defendants’ average price for gas, which he said was $4.03 per mcf during a recent six-month period. McElligott obtained this figure by analyzing statements which were filed with the Federal Energy Regulatory Commission (“FERC”) by defendants’ customers. McElligott did not know whether this price was for gas being sold under contract, and could not testify as to the economic or historical conditions that might explain the $4.03 price. McElligott was also unable to exclude the possibility that this price might be attributable to defendants’ foresight in signing customers to long-term contracts during times when gas prices were higher. There was no testimony that the defendants are currently entering into agreements to sell gas at prices that exceed the prevailing market price.

Using these suspect figures, McElligott calculated what the impact would be if Natural was forced to buy gas from defendants. He based these projections on a newspaper article in which the following statement appeared:

McMoRan Oil & Gas Co., FMI’s petroleum subsidiary, cannot sell 60 percent of the gas that it is capable of delivering in today’s glutted market, Moffett [Mr. James R. Moffett, Chairman of Freeport-McMoran] said. MidCon’s pipeline network would be a big help, he said.

In his deposition Moffett explained that almost all of that gas is already committed to its customers under long-term contracts and could not be shifted to MidCon. Thus, plaintiff failed to show that defendants have gas available to force into MidCon’s pipelines.

In addition to the evidence about the particular policies of these parties, plaintiff’s witnesses testified that generally, it is important for a pipeline to be independent from producers. Dan H. Grubb, President of Natural, testified that a pipeline company makes money by investing in pipelines and therefore has an incentive to keep prices low. A producer, on the other hand, makes money on the spread between the cost of finding the gas and the ultimate sales price and, thus, Grubb concluded, defendants would be motivated to keep prices high. Other than this vague speculation, plaintiff failed to provide any real evidence that defendants would, in fact, pursue such a high pricing policy which would be contrary to their own economic interests.

While urging the importance of independence between pipeline and producer, Natural acknowledged that it owns two gas-producing subsidiaries. Grubb testified that in 1985, Natural produced 51 bcf of natural gas. Defendants’ combined production for 1984 was approximately 60 bcf. Grubb testified that despite the fact that both MidCon and the defendants are substantial gas producers, the relationship between MidCon and its gas-producing affiliates differs from the relationship MidCon would have with the defendants. Grubb did not adequately explain how or why MidCon’s relationship with Natural would be different and seemed to rely on the “great personalities” of the defendants in predicting that they would force Natural to take its gas.

In addition to this analysis of the relevant markets and pricing policies of the parties, evidence was presented concerning the policies and procedures of the FERC, a federal agency with, the power to regulate gas prices. Grubb and McElligott testified that although pipeline companies must submit their pricing policies for review by the FERC every six months, neither of them knew of any instance when the FERC had rejected a pipeline’s request for a price increase. Both, however, acknowledged the FERC’s power to reject unreasonable price increases, and admitted that at times the FERC has granted only conditional approval to price increases.

The FERC also has significant rule-making power and is currently considering a rule, discussed in plaintiff’s annual report, that would allow utilities to deal directly with the producer and avoid purchasing gas through pipeline companies. This court also took judicial notice of a proceeding before the FERC in which one of Natural’s competitors alleged that it had violated a FERC rule which limits transactions between pipeline companies and their gas producing affiliates.

Plaintiff also sought to introduce evidence that defendants’ highly leveraged acquisition of MidCon would financially damage MidCon by increasing its debt and reducing its capital. The court excluded this testimony because plaintiff was unable to show that the financial condition of MidCon could affect competition.

DISCUSSION

In determining whether to issue a preliminary injunction, the court must consider four factors: (1) whether plaintiff has an adequate remedy at law or will suffer irreparable harm if the injunction is denied; (2) whether this harm will be greater than the harm defendant will suffer if the injunction is granted; (3) whether plaintiff has shown a reasonable likelihood of success on the merits; and (4) whether the public interest will be affected by the issuance of an injunction. General Leaseways, Inc. v. National Truck Leasing Association, 744 F.2d 588, 590 (7th Cir.1984); Roland Machinery Company v. Dresser Industries, Inc., 749 F.2d 380, 382 (7th Cir.1984).

In American Hospital Supply Corporation v. Hospital Products Limited, 780 F.2d 589, 593 (7th Cir.1986), Judge Posner reduced these factors to an algebraic formula and directed a district judge to

“grant the preliminary injunction if but only if P x Hp > (1-P) X Ha, or, in words, only if the harm to the plaintiff if the injunction is denied, multiplied by the probability that the denial would be an error (that the plaintiff, in other words, will win at trial), exceeds the harm to the defendant if the injunction is granted, multiplied by the probability that granting the injunction would be an error.”

There is the potential here for irreparable injury on both sides of Judge Posner’s equation. If this proposed merger violates § 7 of the Clayton Act, and it is not enjoined, plaintiff would suffer an irreparable injury. After the takeover, it would be virtually impossible to “unscramble the eggs” and return the two companies to the status quo.

On the other hand, if the proposed merger does not violate the Clayton Act and the defendants are enjoined, it might be difficult to make the defendants whole with a money judgment. It is difficult for the court to say that these defendants would be injured, however, since the court cannot predict what the loss would be if the takeover were erroneously enjoined. There are incalculable contingencies — actions by regulatory agencies, MidCon’s rescue by a “white knight”, actions by shareholders, changes in the natural gas market — which could obstruct this merger or make it unprofitable for the defendants. Nonetheless, courts have held that blocking an otherwise lawful tender offer is an irreparable injury.

In Edgar v. MITE Corp., 457 U.S. 624, 102 S.Ct. 2629, 73 L.Ed.2d 269 (1982), the Supreme Court discussed the injuries which flow from an injunction against a takeover as follows:

The effects of allowing the [injunction of] a nationwide tender offer are substantial. Shareholders are deprived of the opportunity to sell their shares at a premium. The real-location of economic resources to their highest valued use, a process which can improve efficiency and competition, is hindered. The incentive the tender offer mechanism provides incumbent management to perform well so that stock prices remain high is reduced.

457 U.S. at 643, 102 S.Ct. at 2641. See also Dan River, Inc. v. ICAHN, 701 F.2d 278, 283-84 (4th Cir.1983); and Martin-Marietta Corp. v. Bendix Corp., 690 F.2d 558, 568 (6th Cir.1982).

As in American Hospital Supply Corporation, the magnitude of injury to the plaintiff if the injunction were erroneously denied is nearly equal to the injury to the defendants if the injunction were erroneously granted. Thus, under Judge Posner’s formula, plaintiff must show “a better than 50 percent chance of winning the case”. The court is hesitant to handicap a judicial contest and apply percentages to the likelihood of success on the merits; however, in this case plaintiff’s chances of success can only be characterized as a long shot.

While the traditional threshold for establishing likelihood of success on the merits is low, plaintiff has failed to present any evidence, or even any argument to suggest that it could ultimately prevail against these defendants. Under § 7 of the Clayton Act as quoted above plaintiff must show that this proposed merger may substantially lessen competition or tend to create a monopoly in any line of commerce and in any section of the country. In Brown Shoe v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962), the Supreme Court set forth the method for identifying violations of § 7. The court must determine the line of commerce or the relevant product market, the relevant section of the country or the geographic market, and whether the merger may substantially lessen competition.

There is no dispute that the line of commerce is the sale of natural gas. There is, however, a dispute over the relevant geographic market. At issue is whether the court should look at competition among natural gas producers at the top end of the pipeline (a nationwide market) or among utility companies who purchase gas at the bottom end of the pipeline for distribution to the ultimate users (a local market).

In United States v. Philadelphia National Bank, 374 U.S. 321, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963), the Court stated that the “proper question to be asked in this case is not where the parties to the merger do business or even where they compete, but where, within the area of competitive overlap, the effect of the merger on competition will be direct and immediate.” 374 U.S. at 357, 83 S.Ct. at 1738. The difficulty in determining the relevant market here is that plaintiff has failed to show that this merger will affect or lessen competition in either the producer or the utility market.

In Brown Shoe Co., Inc. v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962), the Supreme Court stated that in determining whether a merger lessens competition, the nature and purpose of the merger, the trend toward concentration in the industry and the size of the share of the market foreclosed by the merger should be considered. Plaintiffs basic argument is that after the merger, defendants would force high-priced gas into MidCon’s pipelines. The court cannot determine how this argument meets the Brown Shoe requirements or establishes that the merger will lessen competition, perhaps because plaintiff’s evidence does not support his argument.

Plaintiff did not provide any reliable evidence on which to base a finding that defendants will increase prices once they take control of the pipeline. Such a finding cannot be based on a showing of plaintiff’s good management, on personalities, on speculation about what defendants will do with the pipeline, or on what defendants, as producers, have done in the past — under different economic conditions. There is no adequate evidence here to show that the defendants would treat the utilities or other producers any differently than MidCon has. Defendants will be under the same economic and regulatory restraints in setting prices as MidCon has been.

In considering whether a merger violates § 7 of the Clayton Act, courts generally look at the evidence in light of the factors originally set forth in Brown Shoe, which have been further defined and elaborated on in subsequent decisions. In Fruehauf Corp. v. F.T.C., 603 F.2d 345 (2d Cir.1979), the court discussed the Brown Shoe analysis as follows:

[M]ost important among the factors are the nature and economic purpose of the arrangement, the likelihood and size of any market foreclosure, the extent of concentration of sellers and buyers in the industry, the cost required to enter the market, the market share needed by a buyer or seller to achieve a profitable level of production (sometimes referred to as ‘scale economy’), the existence of a trend toward vertical concentration or oligopy in the industry, and whether the merger will eliminate potential competition by one of the merging parties. To these factors may be added the degree of market power that would be possessed by the merged enterprise and the number and strength of competing suppliers and purchasers, which might indicate whether the merger would increase the risk that prices or terms would cease to be competitive. This list, with some variations, has been the standard framework for analysis of the legality of a vertical merger, [citations omitted.]

603 F.2d at 353. Plaintiff provided no evidence which would allow the court to consider any of these factors. Without such evidence, the court is unable to see how plaintiff can establish that this merger might lessen competition in violation of § 7 of the Clayton Act.

While the defendants would acquire a substantial percentage of the market at the utility end of the pipeline, it is no different from that percentage of the market now controlled by the plaintiff. The merger will, therefore, not affect the market at the utility end of the pipeline. The vertical merger would appear to have the potential to affect the market at the producer end of the pipeline. Yet, plaintiff provided no evidence on the market of natural gas producers, on defendants’ percentage of that market, or on the likelihood that defendants would foreclose any other producers from the natural gas market.

Failing to meet its burden under the traditional method of analysis applied in Clayton Act cases, plaintiff tried a more novel approach and asked this Court to apply the “failing company defense” in reverse. Under the failing company defense, first set forth in International Shoe Co. v. F.T.C., 280 U.S. 291, 50 S.Ct. 89, 74 L.Ed. 431 (1930), a merger may be justified if the target company is in such a weak financial position that it will collapse if not acquired by another, stronger, company.

Plaintiff attempted to show that the financial arrangements for the merger would force MidCon to assume such a massive amount of debt that MidCon would collapse. Common sense suggests that these defendants do not plan to purchase MidCon only to watch it fail. It is also highly unlikely that the defendants could secure financing for such an unpromising venture.

Even if the reality here was contrary to such obvious common sense, that would not establish a violation of § 7 of the Clayton Act. The fact that antitrust law permits the acquisition of a failing company by a competitor does not justify enjoining the acquisition of a healthy company on the ground that its financial integrity might be hurt by the acquisition. The critical issue is the impact on competition. Under the failing company doctrine, the effect on competition if the target company collapses is considered greater than if the company is acquired by a stronger company, United States v. General Dynamics, 415 U.S. 486, 506-7, 94 S.Ct. 1186, 1198-99, 39 L.Ed.2d 530 (1974). Even if this merger were to result in financial ruin for MidCon, plaintiff has not shown that this will have an adverse effect on competition.

It is clear from the foregoing that plaintiff has a negligible chance of succeeding on the merits. When this is multiplied against the equality of potential injury to each party, Judge Posner’s formula looks like this: P x Hp < (1-P) X H<j and plaintiff’s request for a preliminary injunction should be denied.

At first blush, Judge Posner’s formula seems to ignore the public interest. The public interest, however, may be factored with the injury on either side of the equation, depending on where the public interest lies. See American Hospital, at 601-602.

The court carefully considered how the merger of these two corporations would affect the public. The public may be affected by the fact that such a large percentage of the market is supplied by a single pipeline. The court cannot say, however, that the public would be affected by a change in the ownership of that pipeline. Furthermore, there are many government agencies monitoring the natural gas industry and protecting the public interest. Thus, an examination of the public interest in the issuance or denial of an injunction in this case does not add anything to either side of the equation.

For these reasons, plaintiff’s motion for a preliminary injunction has been denied.