source: Caselaw Access Project

author: DUPLANTIER, District Judge.

license: Public Domain

text:
    W.G. TAYLOR, K.P. Brockhoeft, A.J. Ruiz, Wayne A. Sepcich and Brotherhood of Locomotive Engineers v. MISSOURI PACIFIC RR CO. and United Transportation Union.
    Civ. A. No. 84-700.
    United States District Court, E.D. Louisiana.
    March 20, 1985.

      Harold A. Ross, Cleveland, Ohio, Louis L. Robein, Jr., Metairie, La., for plaintiffs.
    Dennis M. Angelico, New Orleans, La., Norton N. Newborn, Cleveland, Ohio, for United Transp. Union.
    Harry & Rosenberg, New Orleans, La., for Missouri Pacific R.R. Co.
   ORDER AND REASONS

DUPLANTIER, District Judge.

Plaintiffs Taylor, Brockhoeft, Ruiz and Sepeich are railway workers employed by defendant Missouri Pacific Railroad Company (“MOPAC”). Plaintiff Brotherhood of Locomotive Engineers (“BLE”), of which the individual plaintiffs are members, is the collective bargaining representative pursuant to the Railway Labor Act (“RLA” or “Act”), 45 U.S.C. §§ 151-163 (1972), for the craft of locomotive engineers employed by MOPAC. Defendant United Transportation Union (“UTU”) is the collective bargaining representative for the crafts of switchmen and firemen employed by MO-PAC. The rates of pay, rules, and working conditions for the crafts employed by MO-PAC are established by agreement between MOPAC and the collective bargaining representative of each respective craft. Although the individual plaintiffs are members of BLE, the engineer’s collective representative, they work principally as switchmen.

At various times during late 1983 and early 1984 the individual plaintiffs either were subjects of MOPAC disciplinary proceedings or filed grievances with MOPAC. In all instances, the grievances and disciplinary proceedings concerned the plaintiffs’ services as switchmen.

The individual plaintiffs sought representation by their union, BLE, at the MOPAC disciplinary and grievance proceedings. MOPAC, however, refused their requests, basing its position on provisions of two collective bargaining agreements between MOPAC and UTU that establish terms and conditions of employment for MOPAC switchmen: Articles 18 and 23 of the January 1, 1974, Agreement and Section 17 of the August 11, 1948, Agreement. {See Appendix). The parties to this suit agree that these provisions are intended to limit a switchman’s choice of representatives before a disciplinary or grievance proceeding to himself or a UTU representative, even though that switchman may be a member of BLE rather than UTU. Thus, the provisions vest in UTU an exclusive right to represent MOPAC employees in proceedings concerning switchmen services.

The individual plaintiffs, joined by BLE, instituted this action in which they seek a declaration that the exclusive representation provisions of the UTU/MOPAC agreements violate employees’ rights under the RLA and are null and void insofar as they restrict plaintiffs’ rights to have their grievances and disciplinary matters handled at all levels by BLE representatives. We now consider extensively briefed cross motions for summary judgment filed by plaintiffs and by defendant UTU.

Defendant MOPAC opposes both motions for summary judgment. To the extent that MOPAC’s opposition resurrects the question of this court’s jurisdiction to adjudicate this labor dispute, we reiterate our ruling on MOPAC’s previously considered motion to dismiss. Contrary to MOPAC’s contentions, this case does not present a “major dispute” regarding the jurisdiction of competing unions over which the National Mediation Board has exclusive jurisdiction. RLA Section 2, Ninth (45 U.S.C. § 152, Ninth). This case presents no issue about UTU’s authority to make agreements with MOPAC relating to the working conditions, rules, and pay of MO-PAC switchmen. See Elgin, J. & E. Ry. Co. v. Burley, 325 U.S. 711, 65 S.Ct. 1282, 89 L.Ed. 1886 (1945). Nor is this matter a “minor dispute” arising out of a grievance or dispute regarding the interpretation or application of a collective bargaining agreement provision, over which the National Railroad Adjustment Board, RLA Section 3, First (i), or alternatively, a Special Adjustment Board, RLA Section 3, Second, may have exclusive jurisdiction. The parties agree that the challenged provisions of the UTU/MOPAC agreements purport to create an exclusive right of UTU to represent switchmen at all MOPAC company level proceedings. The issue presented is whether these exclusive representation provisions can prevent a member of the BLE from choosing as his representative at a company level grievance or disciplinary proceeding a BLE union official, in view of the rights of employees under the RLA. Since the issue is one of validity, not interpretation, it is for judicial consideration. See Felter v. Southern Pacific Co., 359 U.S. 326, 327 n. 3, 79 S.Ct. 847, 850 n. 3, 3 L.Ed.2d 854 (1959); Order of Railway Conductors & Brakemen v. Switchmen’s Union of North America, 269 F.2d 726 (5th Cir.1959). Nothing in the RLA restricts the court’s jurisdiction to determine whether the exclusive representation provisions of the UTU/MOPAC agreements are valid.

The factual disputes are minimal and, in any event, immaterial. The resolution of this matter turns on a pure question of law. Therefore, the case is ripe for summary judgment. We conclude that plaintiffs are entitled to relief and order judgment accordingly.

At the outset of our analysis we note that the language of the Act provides no clear answer to the question before us. Furthermore, we find no binding precedent. Indeed, of the several reported decisions concerning representational rights in minor disputes, only two directly address the narrow question with which we are concerned: an employee’s right under the Act to designate as his representative at company level dispute proceedings the railway union of which he is a member but which is not the certified bargaining representative of the craft in which he was working at the time the dispute arose. See McElroy v. Terminal Railroad Association of St. Louis, 392 F.2d 966 (7th Cir.1968), cert. den., 393 U.S. 1015, 89 S.Ct. 610, 21 L.Ed.2d 559 (1969); General Committee of Adjustment of Brotherhood of Locomotive Engineers for Pacific Lines of Southern Pacific Co. v. Southern Pac. Co., 132 F.2d 194 (9th Cir.), rev’d on other grounds, 320 U.S. 338, 64 S.Ct. 142, 88 L.Ed. 85 (1943). Only one case, McElroy, is an action by a member of one craft union seeking to nullify the exclusive representation agreement between the employer and the collective bargaining agent union for the craft in which the employee was working when the dispute arose.

Absent prohibition by the Act, the exclusive representation agreements would be valid and enforceable contractual provisions, although they prevent an employee from having his own union represent him at company level proceedings involving a labor contract with a different union. The reported decisions interpreting the Act visa-vis an employee’s choice of representative exemplify the diverse interpretations to which the Act lends itself. The disparate results and reasoning in these decisions suggest two reasonable assessments of the Act. First, the Act’s failure to address the specific issue before us may be caused by the failure of the drafters to anticipate such a dispute. Alternatively, Congress might have intended a definite stance on the issue; if so, the draftsmanship of the Act is wanting in clarity.

Reading the language of the Act “not in a vacuum, but in the light of the policies [it] was intended to serve,” Pennsylvania R.R. Co. v. Rychlik, 352 U.S. 480, 488, 77 S.Ct. 421, 425, 1 L.Ed.2d 480 (1957), we conclude that under the Act the individual plaintiffs are entitled to designate their union, BLE, to represent them in company level proceedings notwithstanding the UTU/MOPAC agreements to the contrary. We hold that the Act renders null and unenforceable the exclusive representation provisions of the UTU/MOPAC agreements insofar as they prevent a member of a railway union from selecting his own union rather than the bargaining representative union of the craft in which he is working to assist him at company level proceedings. We do not pass upon the question of whether an employee has a right under the Act to select any person or organization other than his own union as his representative at company level proceedings.

The general purposes of the Act are delineated in RLA Section 2 (45 U.S.C. § 151a). Section 2 reflects the congressional intent to create and maintain stable relations between labor and management in a vital national industry. See Brotherhood of R.R. Trainmen v. Chicago R. & I.R. Co., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622 (1957). One of the specific objectives of the Act is to forbid “any limitation upon freedom of association among employees or any denial, as a condition of employment or otherwise, of the right of employees to join a labor organization.” RLA Section 2(2) (45 U.S.C. § 151a(2)). Inherent in the right of an employee to join a railway employees labor union of his choice is the right to enjoy fully the fundamental benefits of union membership. It is difficult to conceive of a benefit of union membership more fundamental than union representation in employee/employer dispute proceedings.

In the 1951 amendments to the Act concerning union shops in the railroad industry, Congress reaffirmed each employee’s right to belong to a railway union of his choice. Through Section 2, Eleventh, Congress allowed carriers and unions to establish union shop requirements, which make membership in a union a condition of employment. However, a typical union shop agreement could cause significant problems because of an unusual characteristic of the railroad industry: the shuttling back and forth between crafts (and union jurisdiction) of employees traditionally organized along craft lines. To forestall such problems, Congress included in the union shop section of the Act a specific provision to the effect that membership in any railway employees union national in scope satisfies the union membership requirement of any other such union’s contract with the employer. “The requirement of membership in a labor organization in an agreement ... shall be satisfied, as to both a present or future employee in engine, train, yard, or hostling service ... if said employee shall hold or acquire membership in any one of the labor organizations, national in scope, organized in accordance with this chapter, and admitting to membership employees of a craft or class in any of said services____” RLA Section 2, Eleventh (c) (45 U.S.C. § 152, Eleventh (c)). It is not disputed that both UTU and BLE are the type of labor organizations referred to in the quoted provision.

This recognition of an employee’s right to maintain his union membership while working in a craft not represented by his union was designed to protect employees from the expense of being required to belong to more than one union or the likely loss of union benefits that would result if an employee were required periodically to shift his union membership. See Rychlik, supra, 352 U.S. at 490, 77 S.Ct., at 426. In Rychlik the Supreme Court noted that by this provision of the Act Congress conferred upon qualified craft unions the right to “assure members employment security, even if a member should be working temporarily in a craft for which another union is the bargaining representative.” Id. The obverse of the Court’s observation is that the provision gives union members the right to be assisted by their union in employment security matters. Grievance and disciplinary proceedings arising out of work in a craft for which another union is the bargaining representative clearly fall within the purview of employment security.

Section 2 and Section 2, Eleventh (c) would clearly prohibit UTU from contracting with MOPAC to prohibit MOP AC employees working within UTU’s craft from joining BLE. Congress conferred upon the plaintiff employees a right to belong to BLE. It follows, then, that UTU and MO-PAC cannot lawfully contract to strip MO-PAC employees of a basic privilege of union membership. The employee’s right to belong to a union of his choice would be hollow if this court enforced a contract between the employer and a rival union which stripped the employee of his right to have his union represent him at company level dispute proceedings with the employer.

No provision in the Act appears to address specifically the issue before us. The language of the Act is notably ambiguous in its many references to the “representative” of an employee. Section 2, Sixth typifies the ambiguity of the Act:

In case of a dispute between a carrier and its or their employees, arising out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions, it shall be the duty of the designated representative of such carrier or carriers and of such employees, within ten days after the receipt of notice of a desire on the part of either party to confer in respect to such dispute, to specify a time and place at which such conference shall be held. RLA Section 2, Sixth (45 U.S.C. § 152, Sixth), (emphasis added).

The defendants argue, with some logic, that “designated representative” refers to the certified collective bargaining representatives of the employee's craft. On the other hand, “designated representative” reasonably may be interpreted to mean a representative of the union “designated” by the employee, the union of which he is a member. The Act gives that membership special status; in the spirit of the Act, we adopt the interpretation of the above quoted language which gives full measure to the protected union membership.

There is merit to the defendants’ contention that an employee who enjoys the benefits of a collective bargaining agreement must accept the limitations established by that agreement, including exclusive representation provisions. That logical argument must yield to the compelling evidence of Congress’s intent to assure each employee the right to enjoy unimpeded the privileges and benefits of membership in the union of his choice.

Our conclusion fosters the Act’s explicit objective of providing for the prompt settlement at the company level of all disputes growing out of the application or interpretation of collective bargaining agreements. RLA Section 2(4) and Section 2, First and Second (45 U.S.C. § 151a(4) and § 152, First and Second). See General Committee v. Southern Pacific Co., supra, 132 F.2d at 198. When an employee elects to be a member of one union rather than another, he is, among other things, designating the union representative in which he wishes to place his trust and confidence with respect to employment matters. The employee reaffirms his preference when he designates his union to represent him at company level dispute proceedings, as the individual plaintiffs did in this case. This relationship of trust and confidence surely will facilitate the dispute resolution process. Id. Although representation by a different union pursuant to an exclusive representation provision may yield similar results, the likelihood of settlement at the company level is certainly greater when the employee is represented by his own union.

The defendants assert that the exclusive representation requirement is a necessary and desirable means for a collective bargaining representative to protect the integrity of the collective bargaining agreement. Even minor dispute resolution at the company level implicates the duty of the collective agent to negotiate and protect the terms of employment for the craft it represents, because the resolution of minor disputes often turns on interpretations of the collective agreement. In some instances the resolution of a minor dispute may have implications broader than the immediate case by influencing the practical application of the collective agreement in subsequent cases. See, e.g., Elgin, J. & E. Ry Co. v. Burley, 325 U.S. 711, 729-41, 65 S.Ct. 1282, 1292-98 (1945); General Committee of Adjustment, United Transportation Union v. Burlington Northern, Inc., 563 F.2d 1279 (8th Cir.1977), cert. denied, 449 U.S. 826, 101 S.Ct. 88, 66 L.Ed.2d 29 (1980). However, the resolution of many minor disputes at the company level depends upon factual determinations rather than novel interpretations or applications of the collective agreement.

In any event, our ruling does not interfere with the collective bargaining representative’s ability to perform its duties. A craft representative may be a necessary party to a company level proceeding potentially affecting other employees, even though the employee directly involved has designated his own union to represent him. We certainly do not hold that the craft representative must be excluded from the company level proceedings in those instances; the craft representative’s participation protects the interests and obligations of the collective bargaining union to represent the craft which it is designated to represent. Accord Burley, supra, 325 U.S. at 737 n. 35, 65 S.Ct. at 1296-96 n. 35. (to exclude the collective agent from any voice whatever in the collective agreement’s interpretation would go too far toward destroying its uniform applications); McElroy, supra, at 972 (a “right to participate clause” in union/carrier agreements may be permissible). Furthermore, because the carrier may not unilaterally alter the terms of a collective agreement, the carrier should follow precedent established in proceedings with the collective agent. See Burlington Northern, supra, 563 F.2d at 1284.

For the foregoing reasons, we hold that the exclusive representation provisions in the UTU/MOPAC agreements are inapplicable to the individual plaintiffs in this case and do not bar them from having BLE representation at company level dispute proceedings. We will enter judgment in accordance with these findings.

APPENDIX

AGREEMENT

between

TEXAS PACIFIC-MISSOURI PACIFIC TERMINAL RAILROAD OF NEW ORLEANS

and the

UNITED TRANSPORTATION UNION

Schedule of Pay Allowed and Rules Governing Switchmen

Reprinted

January 1, 1974

ARTICLE 18

Discipline and Grievances

(a) No employee covered by this agreement will be suspended, discharged, or unfavorable entries made against his record without just and sufficient cause, and not until he has had a fair and impartial investigation. Investigations will be held promptly, ordinarily within ten (10) days after the offense has been committed, to which a decision in writing will be rendered within ten (10) days after the investigation or the case will be considered closed. When brought to trial for any offense, the charge will be specified in writing, and the employe charged shall have the right to have another employe covered by this agreement, or a duly accredited representative of the UTU to assist at such investigation, and to procure witnesses to testify in his defense, to examine all papers used in the investigation, and to question all persons giving evidence in his case. The employe charged and his representative will be furnished a copy of the transcript of the investigation on request. In case he is not satisfied with the result of said investigation, he shall have the right to appeal within ten (10) days, to his superior officer in person, or through his representative, as above specified. (T-32141)

(b) In case his suspension or dismissal is found to be unjust, he shall be reinstated and paid for all time lost. All complaints made by one employe against another, covered by this agreement, must be made in writing.

(c) If an employe is asked to sign a statement, the contents of same should be made entirely clear to him and a copy of such statement furnished to him, if desired.

(d) In the handling of grievances, including time claims, the chairman will inform the officer rendering decision within a reasonable time when a decision is accepted; in the event question in dispute has been handled with the officer having final authority, and his decision is not acceptable, the chairman will so notify him of this fact within a reasonable time.

ARTICLE 23

Representation and Rulings

(a) The right to negotiate and interpret schedule rules and agreements covering rates of pay and working conditions of employes covered by this agreement, is vested in the General Grievance Committee of the UTU and the Railroad.

(b) The right of employes covered by this agreement to have the regularly constituted committee of his organization represent him in the handling of his grievances under the recognized interpretation placed upon the agreement involved between the officials of the Railroad and the General Grievance Committee making same is conceded.

(c) Any rulings made with reference to any Article enumerated herein by the proper Official of the Railroad will be made in writing, and the Chairman of the General Grievance Committee, UTU, will be furnished a copy of said ruling, but said ruling shall not be made effective until agreed to between the parties herein mentioned.

(d) This agreement as rewritten is effective 1-1-74 and supersedes Yard Agreement effective 10-7-57 with the understanding that other written agreements and settlements on matters not covered by this rewritten agreement are not cancelled and that written agreements, rulings, settlements, and interpretations and decisions and awards of tribunals authorized to represent the parties hereto interpreting the rules of the agreement named herein are not superseded by this rewritten agreement.

This agreement shall remain in effect until and unless changed in accordance with the Railway Labor Act. Revised January 1, 1974.

AGREEMENT — August 11, 1948

SECTION 17 — TIME LIMIT ON CLAIMS

Section 17 — Time Limit on Claims.

* * * * * *

(a) All claims or grievances must be presented in writing by or on behalf of the employe involved, to the officer of the company authorized to receive same, within sixty days from the date of the occurrence on which the claim or grievance is based. Should any such claim or grievance be disallowed, the carrier shall, within sixty days from the date same is filed, notify the employe or his representative of the reasons for such disallowance. If not so notified, the claim or grievance shall be considered valid and settled accordingly, but this shall not be considered as a precedent or waiver of the contentions of the carrier as to other similar claims or grievances.

(b) If a disallowed claim or grievance is to be appealed, such appeal must be taken within sixty days from receipt of notice of disallowance, and the representative of the carrier shall be notified of the rejection of his decision. Failing to comply with this provision the matter shall be considered closed, but this shall not be considered as a precedent or waiver of the contentions of the employes as to other similar claims or grievances.

(c) The procedure outlined in paragraphs (a) and (b) shall govern in appeals taken to each succeeding officer. Decision by the highest officer designated to handle claims and grievances shall be final and binding unless within sixty days after written notice of the decision of said officer he is notified in writing that his decision is not accepted. All claims or grievances involved in a decision of the highest officer shall be barred unless within six months from the date of said officer’s decision proceedings are instituted by the employee or his duly authorized representative before a tribunal having jurisdiction pursuant to law or agreement of the claim or grievance involved. It is understood, however, that the parties may by agreement in any particular case extend the six months period herein referred to.

(d) All rights of a claimant involved in continuing alleged violations of agreement shall, under this rule, be fully protected by continuing to file a claim or grievance for each occurrence (or tour of duty) up to the time when such claim or grievance is disallowed by the first officer of the carrier. With respect to claims and grievances involving an employe held out of service in discipline eases, the original notice of request for reinstatement with pay for time lost shall be sufficient.

(e) This rule recognizes the right of representatives of the organizations parties hereto to file and prosecute claims and grievances for and on behalf of the employes they represent.

(f) This rule shall not apply to requests for leniency.

      . We defer consideration of further relief sought by plaintiff, including prospective injunctive relief, the nullification of the proceedings at which plaintiffs were denied BLE representation, and BLE’s claim for damages against MOPAC for loss of membership resulting from MOPAC’s refusal to treat with BLE representatives.


author: FREEDMAN, District Judge.

text:
    Peter Gabor KALMAN, Plaintiff, v. The BERLYN CORPORATION, Defendant.
    Civ. A. No. 82-0346-F.
    United States District Court, D. Massachusetts.
    March 28, 1985.

      Francis D. Dibble, Jr., Bulkley, Richardson and Gelinas, Springfield, Mass., for plaintiff.
    George L. Greenfield, Wolf, Greenfield & Sacks, Boston, Mass., for defendant.
   MEMORANDUM AND ORDER

FREEDMAN, District Judge.

This matter is before me on defendant’s objections to the Reports of a Magistrate recommending that plaintiff’s motion to dismiss defendant’s counterclaims be granted and that defendant’s motion for a preliminary injunction be denied. Having reviewed de novo those objected-to portions of the Magistrate’s Reports, 28 U.S.C. § 636(b)(1), I have concluded that the Reports should be accepted for the most part. Accordingly, plaintiff's motion to dismiss shall be granted in part and denied in part, and defendant’s motion for injunctive relief shall be denied.

I. FACTS

Plaintiff is the holder of U.S. Letters Patent 3,471,017 which claims a device for filtering molten plastic. One aspect of plaintiff’s invention is that it employs a filter band or ribbon which is situated perpendicular to the flow of plastic and which moves continuously, thus exposing fresh filter to the plastic flow. Another feature of the device is that the temperature of the liquid plastic is such that the plastic itself constantly forms and dissolves as seals or plugs at the ribbon’s entrance and exit points, thereby preventing the rest of the plastic from leaking out. The independent claims of plaintiff’s patent are claims 1 and 18 and are as follows:

1. A process for filtering a heat-softened substance flowing through a passage comprising the steps of introducing a filter in the form of a filter band or ribbon by passing it through inlet and outlet ports flanking said passage so that a part of the filter extends across said passage, forcing the substance through the filter part to filter said substance whilst providing temperature conditions at said inlet and outlet ports resulting in the formation within said ports of sealing plugs of said substance of adequate rigidity to prevent substantial leakage at said ports and, when desired, effecting movement of said filter through said ports under conditions providing for self-maintenance of said sealing plugs to introduce another part of said filter band or ribbon into said passage.
18. A filtering device, for filtering a heat-softened substance, including a body defining a passage through which said substance can be caused to flow and slotted inlet and outlet ports flanking said passage through which a filter in the form of a band or ribbon is passed and can be moved to introduce different parts of said filter across said passage, said ports being adapted for the formation therein, in use, of sealing plugs of the substance being filtered permitting movement of said filter through said slots without substantial leakage of said substance, and means to provide temperature conditions at said ports to form said plugs.

In 1978 plaintiff sued one of defendant’s customers, Kimberly-Clark Corporation, in the Eastern District of Wisconsin for patent infringement. As part of its indemnification agreement with Kimberly-Clark, defendant — as manufacturer of the accused device — financed and conducted the defense of the suit. Defendant’s attorney, Leonard J. Santisi, who is also the attorney of record in the instant litigation, tried the case. Kimberly-Clark also retained local counsel, Quarles & Brady, whose purpose was to protect Kimberly-Clark’s interests should those interests and the interests of the defendant diverge, but who apparently never exercised this veto authority with the possible exception of one occasion. At oral argument before the Magistrate, Attorney Santisi admitted that defendant had 98% control over the Wisconsin litigation.

The 2% exception to defendant’s control manifested itself in a stipulation plaintiff and Kimberly-Clark entered into in the Wisconsin case. As part of its infringement claim, plaintiff had wanted to inspect Kimberly-Clark’s business premises. Kimberly-Clark did not wish to allow this, and the parties accordingly stipulated that defendant’s accused device “read on” plaintiff’s patent claims with the exception of the filter band or ribbon aspect. Thus, although the issue of the validity of plaintiffs patent was fully litigated, the issue of infringement went to the trier of fact on the narrow single ground of whether the filter defendant manufactured employed the same ribbon or band feature as was claimed in plaintiff’s patent.

The trial court found both that plaintiff’s patent is valid and that defendant’s device infringes. On appeal, the Court of Appeals affirmed. Kalman v. Kimberly-Clark Corp., 713 F.2d 760 (Fed.Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 1284, 79 L.Ed.2d 687 (1984).

While the Wisconsin case was in progress, plaintiff brought suit against the defendant in this Court, again alleging infringement. Defendant has counterclaimed, seeking a declaratory judgment that plaintiff’s patent is invalid and that defendant’s manufactured device does not infringe.

On August 23, 1984, while this case was pending, plaintiff filed another infringement action in the Eastern District of Wisconsin against another of defendant’s customers, Presto Products, Inc. Defendant accordingly seeks here to enjoin plaintiff from prosecuting this new Wisconsin suit and any further customer suits until the instant litigation, which involves the real parties in interest, is resolved. Plaintiff argues that the outcome of the first Wisconsin litigation collaterally estops defendant on both the validity and infringement issues. Plaintiff has accordingly moved that defendant’s counterclaim be dismissed.

The Magistrate, agreeing with the plaintiff, recommended that defendant’s counterclaim be dismissed. The Magistrate thus found no basis for granting defendant a preliminary injunction because, with the dismissal of its counterclaim, defendant could not demonstrate the requisite likelihood of success on the merits. Planned Parenthood League of Massachusetts v. Bellotti, 641 F.2d 1006, 1009 (1st Cir.1981).

II. DISCUSSION

A. Collateral Estoppel

Collateral estoppel, or issue preclusion, prevents a party from relitigating issues that a court has already decided. Mother’s Restaurant, Inc. v. Mama’s Pizza, Inc., 723 F.2d 1566, 1569 (Fed.Cir.1983); A.B. Dick Co. v. Burroughs Corp., 713 F.2d 700, 702 (Fed.Cir.1983), cert. denied, -U.S.-, 104 S.Ct. 707, 79 L.Ed.2d 171 (1984). The operation of collateral estoppel has four prerequisites: 1) the'issue in the two suits must be identical; 2) the issue must have been “actually litigated” in the first suit; 3) the issue must have been necessary to the first decision; and 4) the party to be estopped must have had substantial control over the first litigation. Id. In this case, the controversy swirls around the fourth and second factors: defendant argues both that the prejudicial stipulation Kimberly-Clark entered into in the Wisconsin litigation is evidence that defendant was not in control of that case and also that a stipulation is not “actual litigation” for the purposes of collateral estoppel in any event.

1. Substantial Control

As to the control factor, the Court agrees with the Magistrate that defendant substantially controlled the Wisconsin suit. Defendant financed and conducted the defense. Defendant’s attorney himself admitted at oral argument to having 98% control. The defendant’s objections to the Magistrate’s Report stress Kimberly-Clark’s veto power; however, unexercised potential for control cannot negate the fact of defendant’s actual control over the litigation. The one instance where defendant may have lost control — the stipulation— does not so infect defendant’s overall control as to justify not applying collateral estoppel to those issues that were actually litigated in the first Wisconsin suit.

2. Actual Litigation

The requirement of actual litigation is more troublesome. The law clearly states that a stipulation cannot form the basis for collateral estoppel unless the parties manifest an affirmative intention to be bound by the stipulation in future cases. Red Lake Band v. United States, 607 F.2d 930, 934, 221 Ct.Cl. 325 (1979); see also Otherson v. Department of Justice, Immigration & Naturalization Service, 711 F.2d 267, 274 (D.C.Cir.1983); Sekaquaptewa v. MacDonald, 575 F.2d 239, 247 (9th Cir.1978). Here, the parties indicated that the stipulation was for purposes of the first Wisconsin litigation only. Defendant argues that because the stipulation gave away the entire infringement issue and because the questions of infringement and validity are so intertwined, defendant can be estopped on neither issue.

In concluding that the defendant is completely estopped on the infringement issue, the Magistrate reasoned that even though defendant had stipulated that defendant’s accused device literally reads on plaintiff’s Claims 1 and 18 with the exception of the “filter band or ribbon” limitation, the issue of infringement as to this limitation was actually litigated and found, so that “the fact that infringement was also based on other admissions made by the stipulation is a moot point.” Report and Recommendation at 11. The Magistrate buttressed his conclusion with the additional fact that defendant had so far failed to show he would actually contest any facts that were the subject of the stipulation; in fact, the record indicated that the facts stipulated to were true.

The Court would agree with the Magistrate on this point were it not for the fact that defendant, in its objections to the Magistrate’s Report, has now represented to the Court that defendant does dispute that its accused device has “sealing plugs” of the filtered material. Instead, defendant argues that its device uses a close clearance between the filter plates and the housing to prevent leakage of the molten plastic. This sealing plug aspect is a key limitation, see Kalman v. Kimberly-Clark Corp., 713 F.2d at 768 (closely fitting metal parts “vastly different from relying on the plastic itself, as in Kalman, to form plugs.”). If in fact a trial should disclose that defendant’s accused device does not use sealing plugs, it is possible that infringement would not be found. See Amstar Corporation v. Envirotech Corporation, 730 F.2d 1476, 1484 (Fed.Cir.) (“non-infringement is shown when an element or step in the claims is missing from the accused product or process”), cert. denied, — U.S.-, 105 S.Ct. 306, 83 L.Ed.2d 240 (1984).

Since this sealing plug feature was a part of the stipulation in the' first Wisconsin litigation and since resolution of this issue could result in a different infringement result, the Court concludes that defendant cannot be collaterally estopped on the entire infringement issue. Defendant, however, is collaterally estopped on the “filter band or ribbon” issue, and on the validity issue, both of which were actually litigated in the Wisconsin suit.

B. Preliminary Injunction

Since the Magistrate found defendant to be completely estopped as to both the validity and infringement issues, the Magistrate concluded that defendant could not prevail on the merits of its counterclaim and thus was not entitled to a preliminary injunction against plaintiff enjoining it from prosecuting pending and future customer suits. Planned Parenthood League of Massachusetts v. Bellotti, 641 F.2d at 1009.

In its objections to the Magistrate’s Report, the defendant argues that the Magistrate applied the wrong legal test to defendant’s motion. The defendant maintains that in accordance with the tripartite test of Kerotest Manufacturing Co. v. CIO-Two Fire Equipment Co., 342 U.S. 180, 72 S.Ct. 219, 96 L.Ed. 200 (1951), this Court should issue the injunction. The defendant also argues, in its original memorandum in support of its preliminary injunction motion, the applicability of Codex Corporation v. Milgo Electronic Corporation, 553 F.2d 735 (1st Cir.), cert. denied, 434 U.S. 860, 98 S.Ct. 185, 54 L.Ed.2d 133 (1977), a case concerned with manufacturer’s venue rights. In Codex, the Court of Appeals held that a later-filed declaratory judgment action brought by the manufacturer of an accused device should take precedence over an earlier-filed infringement action brought by the patentee against one of the manufacturer’s customers if the customer suit had been brought in a forum where the manufacturer could not have been sued for infringement. Id. at 738.

This Court, having studied the Kerotest opinion, finds no rigid, tripartite test such as defendant describes. Rather, the Court views its task in ruling on defendant’s motion as one committed to the Court’s discretion. Id. 342 U.S. at 183-84, 72 S.Ct. at 221.

As for the applicability of Codex, the Court declines to issue a preliminary injunction on the strength of that case. Codex is not really applicable here. Not only is the customer suit defendant seeks to enjoin not an earlier-filed suit, but also the Court is not faced with a situation in which the manufacturer’s venue rights are threatened. Plaintiff has sued defendant, the manufacturer, here in its home forum. One of Codex’s main rationales for allowing an injunction is thus absent here. Cf. Cordell Engineering, Inc. v. Picker. International, Inc., 540 F.Supp. 1316 (D.Mass.1982) (Codex inapplicable where neither venue rights nor judicial economy threatened).

The Court deems the relief defendant seeks to be extraordinary and intrusive. Rather than enjoin plaintiff from prosecuting future customer suits pending the outcome of the instant case, the Court leaves defendant to the remedy of seeking, through its customers, a stay of those customer suits in the courts in which they are brought. It is to be hoped that the parties and the courts involved will see the wisdom of permitting such stays, with litigation between the real parties in interest proceeding in this forum.

CONCLUSION

In sum, the Magistrate’s Reports and Recommendations are mostly accepted. The defendant, having had substantial control over the first Wisconsin litigation, is collaterally estopped from relitigating both the validity of plaintiff’s patent and the issue of whether defendant’s accused device employs the same “filter band or ribbon” as is claimed in plaintiff’s patent. Plaintiff’s motion to dismiss defendant’s counterclaim as to these issues is GRANTED. Furthermore, in light of the differences between the instant litigation and the circumstances of the Codex case and the intrusiveness of defendant’s requested injunctive relief, defendant’s motion for a preliminary injunction is DENIED.

It is So Ordered.


author: PLATT, District Judge.

text:
    Ernesto LOPEZ, Plaintiff, v. INTERNAL REVENUE SERVICE and the United States of America, Defendants.
    No. 85 CV 563.
    United States District Court, E.D. New York.
    April 1, 1985.
    Ease & Druker by James O. Druker, Garden City, N.Y., for plaintiff.
    Raymond J. Dearie, U.S. Atty., E.D.N.Y., by Michael C. Cavanagh, Asst. U.S. Atty., Brooklyn, N.Y., for defendants.
   MEMORANDUM AND ORDER

PLATT, District Judge.

This is a civil action under 26 U.S.C. § 7429 to review the reasonableness of jeopardy termination proceedings brought against plaintiff Lopez by the Internal Revenue Service (IRS) in determining plaintiff’s 1984 tax liability. For the reasons stated herein, this Court finds that the IRS’s actions were both reasonable and appropriate under the circumstances and that plaintiff has failed to demonstrate that the amount assessed was inappropriate.

FACTS

On October 26, 1984, plaintiff was arrested when he allegedly delivered 211.777 ounces of cocaine to an undercover agent. IRS Notice of Termination Assessment, dated December 18, 1984. The following day, pursuant to a warrant to search certain premises under plaintiff’s control, an additional 1,203.525 ounces of high quality cocaine and three handguns were found. Id. The wholesale value of the cocaine was conservatively estimated to be worth $995,-134.00, or roughly one million dollars. Id.

On December 18,1984, the IRS, pursuant to 26 U.S.C. § 6851, served Mr. Lopez with a jeopardy termination assessment which closed his 1984 taxable year on November 30, 1984, and assessed him with an income tax liability for that year of $492,038.40, which was due and payable immediately. The IRS arrived at this tax liability figure by a practice that it commonly uses. See, e.g., Davis v. United States, 511 F.Supp. 193, 198-99 (D.Kansas 1981). The IRS takes the value of the contraband seized (i.e., its value to the person from whom it was seized) and deems this figure to be his or her taxable income, adds to it any other known income and makes adjustments for dependents. Here, because of the quantity of cocaine found and the size of the initial alleged sale, plaintiff was assumed to be a wholesaler; the wholesale value of the cocaine seized was deemed roughly to be his taxable income for 1984 and his tax liability was set accordingly.

In seeking to enforce its assessment, Mr. Lopez was served with a levy of assessment which was duly filed with the Suffolk County Clerk in New York and with the banks in which Mr. Lopez was known to maintain accounts. Subsequently, levies were made upon a $449.21 account he maintained at Chemical Bank and upon a $2,849.14 account maintained at European American Bank.

Before turning to an analysis of the reasonableness of this jeopardy assessment, a few additional facts concerning plaintiffs circumstances should be set forth, as well as a statement of how this action came to be heard before this Court.

Plaintiff was born in Puerto Rico, and has been a resident in the continental United States for 36 years. He served in the United States Armed Forces from 1950 through 1958 and was honorably discharged with the rank of Staff Sergeant.

He has owned the house in which he currently resides for 17 years. By his attorney’s account, he also owns another house which is used for income and investment purposes.

Mr. Lopez is the sole shareholder of a cleaning business which he operates out of his home. The business is reported to be “quite successful” by his attorney. It has nine employees and seven vehicles. During Mr. Lopez’s present absence, his children are currently operating the business. His wife has been employed for the last several years at the Uniflex Laboratories in Westbury, Long Island.

As previously reported to the IRS, Mr. Lopez’s adjusted gross income was $25,858 in 1981, $27,405 in 1982, and $31,557 in 1983.

In the IRS’s notice to Mr. Lopez, it noted that given the amounts of income he had been reporting in contrast with the wholesale value of the cocaine found on his premises and his “alleged illegal activities”, a termination jeopardy assessment was “recommended to prevent concealment, dissipation or transfer of assets to others” or, in short, to prevent any actions which would “prejudice” or “render ineffectual” the collection of income tax currently assessed against him.

Plaintiff was indicted in October 1984 by a Nassau County Grand Jury and is presently being held in the Nassau County Correctional Center on a $10,000,000 secured insurance bond or $5,000,000 cash bail. To date, he has been unable to make bail and is awaiting trial.

Before coming to this Court, plaintiff exhausted his administrative remedies without success.

HEARING AND REVIEW

On March 1, 1985, the plaintiff’s and Government’s attorneys appeared before this Court. There was some discussion, albeit unclear, over whether plaintiff’s attorney really wanted his client to testify on his own behalf to establish the inappropriateness of the tax assessment. Previously, on February 27, 1985, the Court declined to sign a writ of habeas corpus to secure the presence of plaintiff for the March 1 hearing. The Court declined to sign the writ because of its concern that plaintiff might not be fully aware of the extent to which his testimony might expose him to further criminal liability.

At the March 1 appearance, plaintiff’s counsel argued that his client should be able to receive “limited immunity” because the Government placed his client in a “Catch-22” situation; that is, the only way that his client could prove the unreasonableness of the tax assessment was through his own testimony, but, if he were to testify plaintiff risked further criminal liability. The Court found this idea of limited immunity quite novel and gave plaintiff’s attorney leave to brief this issue for the Court by March 6 and gave the Government until March 16 to reply. On March 1st, the Court also stated that unless plaintiff testify or presented new facts, it was inclined to uphold the IRS’s action based on the undisputed facts presently before it.

At this time, plaintiff’s attorney also argued that the Court should take what would essentially be judicial notice of the fact that it is “common knowledge” that large-scale drug transactions are done on a consignment basis and often involve more than one person. Thus, if “these facts” were assumed, plaintiff’s counsel contended that it would clearly be unfair to treat the value of the cocaine as liquid taxable income and attribute it all to plaintiff. Indeed, the Court did not disagree that the unfairness would be evident if this “common knowledge” could be proved applicable to Mr. Lopez’s case, but proof of this, again, turned on Mr. Lopez’s willingness to testify and/or his ability to present new facts.

Finally, also on March 1st, plaintiff's attorney urged that the use of a jeopardy assessment is only appropriate when the taxpayer appears to be about to flee the country and remove or conceal his assets. Thus, he reasoned that since plaintiff was in jail, his family and community ties strong, and his (known) assets largely non-liquid, the jeopardy assessment was inappropriate. As is discussed later, fear of flight and asset removal are only some of the considerations the IRS weighs when issuing a jeopardy assessment under 26 U.S.C. § 6851.

On March 6, plaintiff’s attorney filed a memorandum of law which largely summarized his arguments of March 1st. It presented no new facts, nor did it address the issue of limited immunity, as plaintiff had apparently decided not to testify.

In light of this decision, the Government’s attorney wrote the Court a letter, dated March 14, stating that since the issue of limited immunity was moot, it did not appear that a formal reply brief was necessary to address the reasonableness of the IRS’ action under the circumstances. The letter went on to summarize the arguments the Government made on March 1st. The Court concurred in the Government’s opinion that a formal reply brief was not necessary since the immunity issue was moot, no new facts had been presented in plaintiff’s brief, and the Court had already indicated that it had sufficient undisputed facts to uphold the IRS’s action.

DISCUSSION

Under 26 U.S.C. § 7429(b), a taxpayer who has been subject to a termination assessment, such as we have here, has the right to have the IRS’s action reviewed by a U.S. District Court after the taxpayer has exhausted his administrative appeals.

On review, 26 U.S.C. § 7429(b)(2) states that:

[T]he district court shall determine whether or not—
(A) the making of the assessment under section 6851 ... is reasonable under the circumstances, and
(B) the amount so assessed ... is appropriate under the circumstances.

As to these two determinations, the District Court is to perform an independent, de novo review. Loretto v. United States, 440 F.Supp. 1168, 1171 (E.D.Pa.1977). As to the standard to be used in reviewing the evidence, “reasonable under the circumstances” appears to mean something more than “not arbitrary or capricious” and something less than “supported by substantial evidence.” Id. at 1172.

Concerning burdens of proof under 26 U.S.C. § 7429(g), it is the Government’s burden to show the reasonableness of making the termination assessment and it is the taxpayer’s burden to show the inappropriateness of the amount assessed.

The District Court’s determination of such assessments is not reviewable. 26 U.S.C. § 7429(f). However, the taxpayer is free to contest the issue of ultimate tax liability either through an action for a refund or in an action in the Tax Court if the amount of the assessment remains disputed. See Rogers v. United States, 511 F.Supp. 82, 84 (D.Minn.1980); Loretto v. United States, 440 F.Supp. at 1168.

Thus, the decision of this Court, now, does not bear on what Mr. Lopez’s ultimate tax liability for 1984 will be, but rather the limited question of the reasonableness of the termination and the amount thereof. This point is important to keep in mind because if it is found at Mr. Lopez’s pending criminal trial that he was merely one of many sellers and/or only had the cocaine on consignment — as his attorney had urged this Court to accept as “common knowledge” without proof — then indeed, the size of this initial liability assessment will certainly be decreased.

Given the undisputed facts, this Court finds that the Government has met its burden of showing that the termination assessment was reasonable under the circumstances. The facts as set forth indicate that there was a great discrepancy between Mr. Lopez’s known assets — his two small bank accounts, his houses, and his reported income on the one hand and on the other $1,000,000 worth of cocaine, valued at wholesale prices. Given this apparent discrepancy, it was not unreasonable for the IRS to assume that Mr. Lopez had been a cocaine dealer of some magnitude for a long time, that he had possibly not been reporting his illicit profits, and that he was probably hiding these profits in unknown assets. It was also not unreasonable for the IRS to wish to “freeze” the situation.

The power to freeze the taxpayer’s assets is clearly given to the IRS in the language of 26 U.S.C. § 6851, which permits the IRS to issue a jeopardy assessment if it finds “that a taxpayer designs ... to do any other act (including in the case of a corporation distributing all or a part of its assets in liquidation or otherwise) tending to prejudice or render wholly or partially ineffectual proceedings to collect the income tax.” This power can be invoked not merely — as plaintiff’s attorney urged — when it appears that plaintiff is planning to flee the country with his assets or become a fugitive and conceal his assets.

In the present case, if Mr. Lopez were to attempt to assign the property he now owns to members of his family or sell it or as sole shareholder of his cleaning business if he were unilaterally to liquidate its assets, the IRS’s ability to collect Mr. Lopez’s income tax would most certainly be prejudiced and rendered partially or wholly ineffectual.

Second, this Court finds that the amount assessed was not inappropriate. The IRS’s common method for calculating tax liability when a taxpayer is found with contraband has already been set forth. Though this method may be a crude estimate, the Court finds nothing obviously inappropriate with its use.

Again, the Court wishes to underscore that the discrepancy between plaintiff’s apparently modest life style and assets and the value of the cocaine may well be explained by the fact — yet to be proved — that the cocaine was being sold on consignment or through a group. But, plaintiff has not yet proved this and has not come forward with facts to show that the amount assessed was inappropriate.

Finally, the Court notes that it has not been given reason to believe plaintiff’s family has been rendered destitute or without a source of income by this assessment, as the children are allegedly running their father’s cleaning business and his wife apparently has a job.

For the reasons set forth above, this Court affirms the IRS’s action.

SO ORDERED.

      . 26 U.S.C. § 6851(a)(1) states:
      If the Secretary finds that a taxpayer designs quickly to depart from the United States or to remove his property therefrom, or to conceal himself or his property therein, or to do any other act (including in the case of a corporation distributing all or a part of its assets in liquidation or otherwise) tending to prejudice or to render wholly or partially ineffectual proceedings to collect the income tax for the current or the immediately preceding taxable year unless such proceeding be brought without delay, the Secretary shall immediately make a determination of tax for the current taxable year or for the preceding taxable year, or both, as the case may be, and notwithstanding any other provision of law, such tax shall become immediately due and payable. The Secretary shall immediately assess the amount of the tax so determined (together with all interest, additional amounts, and additions to the tax provided by law) for the current taxable year or such preceding taxable year, or both, as the case may be, and shall cause notice of such determination and assessment to be given the taxpayer, together with a demand for immediate payment of such tax.

      . As indicated above, the Court was prepared to affirm the IRS’s action at the de novo hearing on March 1, two days after this action was commenced, but at the request of the plaintiff, the Court adjourned the hearing to enable his attorney to submit a brief on his claim that his client was entitled to limited immunity with respect to any testimony that his client would give if he were called to testify. According to the agreed-upon briefing schedule, plaintiffs supplemental memorandum was due on or before March 6 and was filed by then. The Government’s answering papers were due on or before March 16 and were actually filed March 14. Since the adjournment was at the plaintiffs request, the time for the Court to issue the decision herein would normally run until 20 days from the last submission, or April 3, 1985.


author: SANDERS, District Judge.

text:
    Sandra K. RITZMANN, Plaintiff, v. WEEKLY WORLD NEWS, INC. and Joe West, Defendants.
    Civ. A. No. 3-84-2247-H.
    United States District Court, N.D. Texas, Dallas Division.
    May 24, 1985.

      Charles J. Quaid, Massingill & Quaid, Dallas, Tex., for plaintiff.
    Aubrey M. Daniel, III and Nancy F. Preiss, Williams & Connolly, Washington, D.C., Michael Byrd, Akin Gump Strauss Hauer & Feld, Dallas, Tex., for defendants.
   MEMORANDUM OPINION AND ORDER

SANDERS, District Judge.

This case is before the Court on Defendants’ Motion to Dismiss, filed April 2, 1985; Plaintiff’s Response, filed April 22, 1985; Defendants’ Reply, filed May 3, 1985; and Plaintiff’s Reply, filed May 10, 1985.

This action arises from the publication of an article entitled “Marriage Ends in Blazing Fury” in the February 7, 1984 issue of “Weekly World News”, published by Defendant Weekly World News, Inc. Defendant West is the publisher of Weekly World News. The article describes a domestic dispute between Plaintiff Sandra K. Ritzmann and her estranged husband Stephen, in which he scalded her with hot water, beat her, and tried to push her onto the burners of the kitchen stove. After Plaintiff fled the house, her husband set her house ablaze, and perished in the fire. Plaintiff is seeking damages for defamation and invasion of privacy.

Choice of Law

Texas follows the approach of the Restatement (Second) of Conflict of Laws in analyzing choice of law questions. Guitierrez v. Collins, 583 S.W.2d 312 (Tex.1979). That approach, generally speaking, applies the state law having the most significant relationship to each issue. Plaintiff was and is domiciled in Texas. Defendants are domiciled in Florida.

With respect to both defamation and invasion of privacy, the state of most significant relationship will usually be the state where the plaintiff was domiciled at the time of publication “if the matter complained of was published in that state”. Restatement § 150(2); § 153. Although the conduct causing the alleged injuries arguably took place in Florida, Plaintiffs domicile is Texas and the distribution of Defendants’ publication at supermarket check-out counters throughout Texas yield the conclusion that the principal injuries, if any, occurred in Texas. Accordingly, Texas law will govern. Wood v. Hustler Magazine, Inc., 736 F.2d 1084, 1087 (5th Cir.1984), cert. denied, — U.S.-, 105 S.Ct. 783, 83 L.Ed.2d 777 (1985); Faloona v. Hustler Magazine, Inc., 607 F.Supp. 1341, 1352 (N.D.Tex.1985).

The Motion

Defendants seek to dismiss the complaint on the grounds that it fails to state either a cognizable claim for defamation or invasion of privacy. Defendants make much of the assertion that the details reported in their article do not expand at all beyond previous reporting of the incident in the Dallas Morning News, Dallas Times Herald, and Houston Post, which are appended as “Attachments” to Defendants’ Motion. Defendants also state that Plaintiff concedes these articles to be true, presumably seizing on a sentence in Plaintiff’s Complaint. Regardless of their truth or accuracy, it is improper for the Court to consider matters outside of the pleadings in deciding a motion to dismiss. See Rule 12(b), Fed.R. Civ.P.

First Cause of Action

Plaintiff’s first cause of action is entitled “Defamation/Slander/Libel”. There are no allegations of slander present in the case. The statutory cause of action for libel, article 5430, Tex.Rev.Civ.Stat. ann., displaces all common-law formulations. McCullagh v. Houston Chronicle Pub. Co., 211 F.2d 4 (5th Cir.1954), cert. denied, 348 U.S. 827, 75 S.Ct. 44, 99 L.Ed. 652 (1954), reads:

A libel is a defamation expressed in printing ... tending to blacken the memory of the dead, or tending to injure the reputation of one who is alive, and thereby expose him to public hatred, contempt or ridicule, or financial injury, or to impeach the honesty, integrity, or virtue, or reputation of any one, or to publish the natural defects of any one and thereby expose such person to public hatred, ridicule, or financial injury.

Defendants seek dismissal of the libel count for failure “to set out the particular defamatory words, or at least their substance and meaning”, citing Murray v. Harris, 112 S.W.2d 1091, 1094 (Tex.Civ.App.1938). The stringency of pleading requirements is, however, governed by the Federal Rules in actions removed from the state courts. Rule 81(c), Fed.R.Civ.P.; Rule 8(a) (requiring a short and plain statement of the claim).

Plaintiff attached a copy of the offending article to her Complaint and states that “the entire article as a whole is false”. ¶ VII. Although this assertion seems somewhat incredible and largely unsupportable, it satisfies the notice requirements of Rule 8. Stabler v. New York Times Co., 569 F.Supp. 1131, 1138 (S.D.Tex.1983) (allegation that article is defamatory in its entirety is sufficient).

Defendants next argue that Plaintiffs claim that the article is libelous on its face is unsupportable, because the article does not reflect upon Plaintiff’s character. If the language of an alleged libel is unambiguous, it is the duty of the court to construe its meaning and determine whether it is libelous. Merren & Co. v. Belo Corp., 228 F.Supp. 515 (N.D.Tex.1964), aff'd, 346 F.2d 568 (5th Cir.1965); Herald-Post Pub. Co. v. Hervey, 282 S.W.2d 410, 413 (Tex.Civ.App.—El Paso, 1955, writ ref’d n.r.e.). The article is certainly unambiguous. Plaintiff, in her Complaint, states that the article “grossly distorts the events that took place by direct language and innuendo and leaves concern for the reader’s mind as to the true facts which occurred. Specifically, it leaves in the mind of the reader that a terrible fright and scene occurred thereby distorting the true facts____” 11VII. The damage allegations state that “Plaintiff has endured shame, embarrassment, humiliation, mental pain and anguish. In addition, Plaintiff is and will in the future be seriously injured in her good name and reputation in the community and exposed to hatred, contempt, ridicule, to the general public, as well as her friends and relatives”. 11IX.

Plaintiff does acknowledge an incident in which “her estranged husband was killed, herself seriously injured, and their personal property destroyed by fire.” ¶ IV. The article does attribute certain quotations to Plaintiff, including a statement that the decedent “just went crazy”, that she “fought off” the clutches of what the article refers to as “her crazed mate”.

The Court is of the opinion that these references are no.t defamatory as a matter of law. Texas courts have repeatedly and unequivocally held that unless the plaintiff herself is the particular person with references to whom defamatory statements were made, she has no cause of action. Gonzalez v. Times Herald Printing Co., 513 S.W.2d 124, 126 (Tex.Civ.App.—Dallas, 1974, no writ), and cases cited therein. In Gonzalez, a newspaper reported that Plaintiff’s husband’s body was found burned and speculated that the death might be related to an ongoing heroin war. The Court found no cause of action belonging to his widow: “Even if an ordinary reader might have drawn the inference that Plaintiff’s husband was engaged in the importation or sale of narcotics, nothing in the articles suggest that she was so engaged.” Id. at 126.

Assuming that all of the statements in the article are false, and that Plaintiff’s estranged husband was not “berserk”, had not gone “crazy”, and did not assault Plaintiff, all of which certainly tends to injure his reputation, nothing at all libelous appears directed to Plaintiff. Accord Rose v. Daily Mirror, Inc., 284 N.Y. 335, 31 N.E.2d 182 (1940), reh. denied, 285 N.Y. 616, 33 N.E.2d 548 (1941) (article erroneously described deceased as self-confessed murder).

Plaintiff’s specific objection is that the article left in the mind of the reader the occurrence of “a terrible fright and scene”. Again, assuming that there was not indeed such a fright and scene, the erroneous reporting to the contrary cannot conceivably be libelous on its face of Plaintiff. Plaintiff was unambiguously characterized as the victim of “a terrible fright and scene”; a marital relation to its alleged perpetrator does not extend a cause of action for libel to her. Gonzalez, supra.

Invasion of Privacy

In the Second Cause of Action, styled “Invasion of Privacy”, Plaintiff amalgamates three of the four forms of the tort of invasion of privacy recognized under Texas law into one.. IIXIII. The three theories are (1) an unreasonable intrusion upon the seclusion and private affairs of Plaintiff, (2) an unreasonable publicity given to an aspect of Plaintiffs private life and facts to which the public has no genuine concern, and (3) publicity which unreasonably places Plaintiff and the occurrence in a false light. See Braun v. Flynt, 726 F.2d 245, 252 (5th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 252, 83 L.Ed.2d 189 (1984); Billings v. Atkinson, 489 S.W.2d 858 (Tex.1973); Gill v. Snow, 644 S.W.2d 222 (Tex.App.—Fort Worth, 1982, no writ). Defendants argue that none of the three theories can support a recovery.

Unreasonable Intrusion

The Restatement (Second) of Torts § 652B frames this tort as follows:

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

The gravamen of this tort is the intrusion, physically or by the use of the defendant’s senses, not the publicity resulting from the intrusion. Id. at 379, Comment b. In Gill, supra, the Court of Appeals held that the publication of an advertisement about the plaintiff was not the type of invasion of privacy encompassed by the “unreasonable intrusion” tort, because there was no physical invasion or eavesdropping. 644 S.W.2d at 224. There are likewise no such allegations here, and this claim must fail.

Private Facts

Under Texas law:
One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that
(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public.

Restatement (Second) of Torts § 652(d); Wood, supra, 736 F.2d at 1089.

This section provides for tort liability involving a judgment for damages for publicity given to true statements of fact. Restatement at 383. To the extent that the article was wholly false, as alleged, this theory provides no recovery. To the extent the article was true, the facts were not private, as Defendants would then be “merely giving further publicity to information about the plaintiff which is already public”. Restatement, comment c; Virgil v. Time, Inc., 527 F.2d 1122, 1125 (9th Cir.1975), cert. denied, 425 U.S. 998, 96 S.Ct. 2215, 48 L.Ed.2d 823 (1976); Faloona, supra, 607 F.Supp. at 1358-59. Again this theory must be dismissed.

False Light

Under Texas law:

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if
(a) the false light in which the other was placed would be highly offensive to a reasonable person, and
(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

Restatement (Second) of Torts if 652(E) (1977); Braun v. Flynt, 726 F.2d 245, 252 (5th Cir.1984). As in the defamation context, the court must make a threshold determination of “whether the complained of publication is capable of conveying defamatory or false meaning”. Braun, 726 F.2d at 253; Golden Bear Distribution System v. Chase Revel, Inc., 708 F.2d 944 (5th Cir.1983). Whether the publication does actually place the subject in a false light and whether that false light would be highly offensive to a reasonable person are questions of fact. Rinsley v. Brandt, 700 F.2d 1304, 1307 (10th Cir.1983).

Again, Plaintiff cannot recover for any false depiction of her estranged husband. Moore v. Charles B. Pierce Film Enterprises, 589 S.W.2d 489, 490 (Tex.Civ. App.—Texarkana 1979, writ ref’d. n.r.e.). Only the person about whom statements were made can maintain the tort action. Id.

The false light claim is not coterminous with a defamation action, as Defendants suggest. The interest protected by the false light claim is an individual’s interest in not being made to appear before the public in an objectionable false light or false position, or in other words, otherwise than as she is. It is not, however, necessary to the action that the plaintiff be defamed. It is enough that she is given unreasonable and highly objectionable publicity that attributes to her characteristics, conduct or beliefs that are false, and so is placed before the public in a false position. § 652E, Comment b at 395.

Under this formulation, the Court cannot find that there is no set of facts under which Plaintiff could prove a “false light” claim. For instance, Plaintiff could show that she never stated nor believed that her spouse “just went crazy”, or tried to injure her as described, that she found it necessary to fight him off, or that she was found writing in pain on her front lawn. Although these statements are not defamatory, they may indeed be sufficient for a jury to find that they placed Plaintiff in a false light. The context in which the article appears within the publication is also relevant, Braun, 726 F.2d at 253-54; Faloona, 607 F.Supp. supra at 1356, as may be the implication that Plaintiff gave an interview to the publication in question.

Plaintiff should, however, be cautioned that mere inaccuracy in reporting or the fact that publicity was given to a tragic episode in a forum of which she disapproves will not support recovery. It is only when there is such a major misrepresentation of her character, history, activities, or beliefs that serious offense may reasonably be expected to be taken by a reasonable person in her position that there is a cause of action for invasion of privacy. § 625E, Comment c at 396.

Accordingly, the Court is of the opinion that Defendants’ Motion to Dismiss should be, and hereby is, GRANTED IN PART and DENIED IN PART. Plaintiff’s defamation, unreasonable intrusion and private facts claims are DISMISSED.

SO ORDERED.

APPENDIX A

WEEKLY TORLD NEWS February 7, 1984

      . The article is attached as Appendix A.

      . fVII: “Specifically, [the article] leaves in the mind of the reader that a terrible fright and scene occurred thereby distorting the time facts which were known to the public at large pursuant to police reports and other newspaper reports printed by local Dallas papers regarding the matter when it appeared two months prior."


author: BOWEN, District Judge.

text:
    Johnny TRUITT, Petitioner, v. Thomas JONES, et al., Respondents.
    Civ. A. No. 181-11.
    United States District Court, S.D. Georgia, Augusta Division.
    June 11, 1985.

      Martin C. Puetz, Augusta, Ga., for petitioner.
    Johnny Truitt, pro se.
    Susan V. Boleyn, Atlanta, Ga., for respondents.
   ORDER

BOWEN, District Judge.

Through his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, petitioner Johnny Truitt seeks to attack the constitutionality of a judgment of conviction by the Superior Court of Richmond County, Georgia.

Procedural Background

On August 15, 1977, a jury found petitioner guilty of two counts of armed robbery. The trial judge sentenced petitioner to two concurrent terms of twenty years incarceration. The Georgia Court of Appeals affirmed petitioner’s conviction. Truitt v. State, 146 Ga.App. 231, 246 S.E.2d 141 (1978). Petitioner then filed in the Superior Court of Walker County, Georgia, a petition for a writ of habeas corpus. After holding a hearing, the state habeas court considered itself bound by Truitt v. State, supra, and . thus denied petitioner’s application. Truitt v. Willis, Civil Action No. 22,589 (Walker Cty.Super.Ct. Nov. 29, 1978). On January 25, 1979, the Supreme Court of Georgia denied petitioner’s request for a certificate of probable cause to appeal the dismissal of the state habeas petition. Thereafter, petitioner filed in the state habeas court a motion for reconsideration, which was denied October 22, 1979.

On March 14, 1980, the United States District Court for the Northern District of Georgia filed in forma pauperis Truitt’s pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. After nearly a year of proceedings in the Northern District, the case was transferred to the Augusta Division of the United States District Court for the Southern District of Georgia.

Grounds For Relief

In his petition, petitioner Truitt claims that his court-appointed criminal defense attorney, Leonard M. Tuggle, rendered ineffective assistance because Tuggle allegedly: failed to secure the testimony of an adequate number of defense witnesses; failed to object and request a mistrial after the prosecutor had asked a prejudicial question of a defense witness; and refused to appeal petitioner’s conviction. Specifically, petitioner asserts in his petition:

A. Ground one: Ineffective assistance of counsel — at trial
Supporting Facts: State appointed counsel failed to object to the question of a defense witness thereby further failing to move the trial court for a mistrial.
The district attorney ask [sic] the key defense witness — quote “isn’t it true that you are being held for a crime so vicious that perjury would be pale beside it” unquote — This said question poisoned the minds of the jurors even though the trial judge instructed the jurors to disregard it.
Counsel for the defense should have thereby moved the trial court for a mistrial due to the flamatory [sic] statement question from the district attorney
B. Ground two: (Ineffective assistance of counsel — at appel [sic])
Supporting Facts: The trial court made an order that the defense attorney which was appointed to defend at trial was also attorney for appeal. The attorney Leonard Tuggle refused to appeal for the defendant leaving the defendant on his own to appeal. Defendant appealed prose [sic] and thereby his appeal was improperly taken to the Georgia State Appeals Court — plain error upon the face of the enumeration of errors to the Georgia State Appeals Court as shown attached hereto — underlined error of prose [sic] litigant
C. Ground three: Faiuare [sic] of Appointed Counset [sic] for petitioner’s defense to obtain the testimony of his own witnesses
Supporting Facts: petitioner show to the Court that his Appointed Counsel was ineffective in representing his case in that Apoinle [sic] Counsel knew in advance of petitioner’s witnesses but fail to have them present at his teital [sic] and the States Attorney asked petitioner about this matter in his trial. [A]nd petitioner advised States Attorney of this before the trial Court.

Exhaustion Of State Remedies

In his state habeas corpus petition, petitioner raised the ineffective assistance claim he asserts in ground one of his federal petition. See Respondent’s Exhibit No. 1. In addition to presenting the said claim concerning trial counsel’s failure to object and request a mistrial, petitioner raised verbally at the state evidentiary hearing his allegation of counsel’s failure to file an appeal (ground two of the federal petition). Respondent’s Exhibit No. 2 at 5-6, 9-11. On direct appeal of the conviction, moreover, the Georgia Court of Appeals determined that the prosecutor’s question to a defense witness did not warrant a mistrial. Truitt v. State, 146 Ga.App. at 231, 246 5. E.2d 141.

To exhaust state remedies, as required by 28 U.S.C. § 2254(b), (c), “the substance of a federal habeas corpus claim must first be presented to the state courts.” Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). Thus, “where the factual bases underlying [a] petitioner’s federal claim are significantly different from those underlying his state claim,” state remedies are unexhausted. Burns v. Estelle, 695 F.2d 847, 850 (5th Cir.1983), citing Hart v. Estelle, 634 F.2d 987 (5th Cir.1981). The record indicates that petitioner presented grounds one and two to the state courts. However, with respect to ground three — the claim concerning counsel’s failure to obtain trial testimony of certain witnesses — “[t]he ‘substance’ of [petitioner’s] claim is quite different in his federal petition. For the first time, he now sets forth the scenario involving the alibi witnesses].” Burns, 695 F.2d at 849. Petitioner “has not exhausted his state remedies regarding his claim of ineffective assistance of counsel because the factual details forming the basis of his present claim (that is, the alibi witness story) were not presented to the state court when he raised the issue there.” Id.; see also Rodriguez v. McKaskle, 724 F.2d 463, 466 (5th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 520, 83 L.Ed.2d 408. Indeed, “[t]he present ‘claim of ineffective assistance of counsel is materially broader than the one he originally presented’ to the state courts.” Stevens v. Zant, 580 F.Supp. 322, 325 (S.D.Ga.1984), quoting Domaingue v. Butterworth, 641 F.2d 8, 12 (1st Cir.1981).

Waiver Of Exhaustion

Since petitioner failed to present to the Georgia courts his claim concerning counsel’s failure to secure testimony of certain witnesses, his federal habeas petition is “mixed,” and thus unexhausted. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Nevertheless, the Court has determined that respondents have waived petitioner’s failure to exhaust ground three of the federal petition.

Through the orders of March 14, 1980 and May 23, 1980, a Magistrate of the United States District Court for the Northern District of Georgia erroneously indicated that petitioner had exhausted state remedies as to all claims in the federal petition. “[0]nce the magistrate found that [petitioner] had exhausted state remedies, [respondents] did not raise exhaustion before the district court____” Hopkins v. Jarvis, 648 F.2d 981, 983 n. 2 (5th Cir.1981) (Unit B). While respondents indicated in their answer-response and brief that the claim concerning defense witnesses had not been presented to the state courts, respondents failed to state that petitioner’s claim is unexhausted, addressed the merits of the unexhausted claim, and urged the Court to dismiss the petition on the merits. See “Brief in Support of Answer-Response” at 6-8. More important, at the evidentiary hearing oral argument, respondents expressly waived exhaustion, believing that resort to the state courts would be futile. See Lamb v. Jernigan, 683 F.2d 1332, 1335 n. 1 (11th Cir.1982); Felder v. Estelle, 693 F.2d 549 (5th Cir.1982). “When the state fails to assign error to the [Magistrate’s] ruling on unexhausted claims, addresses the merits of those claims in its brief, and waives exhaustion at oral argument as done here, it obviously seeks resolution on the merits,” Westbrook v. Zant, 704 F.2d 1487, 1494 (11th Cir.1983), and the Court may accept the waiver of exhaustion as to those claims. Hopkins, 648 F.2d 983 n. 2; Westbrook, 704 F.2d at 1494. Indeed, “[t]he state fully participated in the evidentiary hearing ... [and] never even made the argument which prevails, if at all, only as a matter of comity and has instead acquiescenced in the expenditure of substantial resources in litigating the merits.” Houston v. Estelle, 569 F.2d 372, 376 (5th Cir.1978). Throughout the proceedings, “[t]he State ... litigated as if there was no question of exhaustion.” Messelt v. Alabama, 595 F.2d 247, 250 (5th Cir.1979). See also West v. Louisiana, 478 F.2d 1026, 1035 (5th Cir.1973), modified on other grounds, 510 F.2d 363 (1975) {en banc). The Court concludes that the State “has waived the defense of lack of exhaustion.” Hopkins, 648 F.2d at 983 n. 2. The Court accepts the waiver. Id.; Thompson v. Wainwright, 714 F.2d 1495, 1500-03 (11th Cir.1983), denial of rehearing en banc, 718 F.2d 1115, cert. denied, — U.S. -, 104 S.Ct. 2180, 80 L.Ed.2d 562 (1984); Westbrook, 704 F.2d at 1494; Lamb, 683 F.2d at 1335 n. 1; Felder, 693 F.2d at 552.

Furthermore, since the exhaustion doctrine is based on notions of comity, a habeas court faced with an unmeritorious, unexhausted claim, as here, “may elect to rule on the claim since denying it would do no violence to principles of comity.” House v. Balkcom, 562 F.Supp. 1111, 1146 (N.D.Ga.1983) {citing Johnson v. Balkcom, 695 F.2d 1320 (11th Cir.1983)), rev’d on other grounds, 725 F.2d 608 (11th Cir.1984). For all the foregoing reasons, the Court shall address the merits of the claims raised in the petition.

The Merits Of Petitioner’s Claims

(a) The Legal Standard

The Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), enunciated the principles for assessing allegations of ineffective assistance of counsel. “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Washington, 104 S.Ct. at 2064. To prevail on an ineffective assistance claim, therefore, a convicted defendant must demonstrate: (1) that counsel’s performance “fell below an objective standard of reasonableness,” id. at 2065, and (2) that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 2068. In other words,

A convicted defendant’s claim that counsel’s assistance was so defective as tore-quire a reversal of a conviction ... has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel was not functioning as “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.

Id. at 2064. Thus, even if a petitioner shows that counsel’s errors were unreasonable, he cannot prevail unless he also demonstrates “a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at 2069, 2067. “It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 2067.

In evaluating whether counsel’s performance was deficient, a Court must make every effort “to eliminate the distorting effects of hindsight____ [A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. at 2065-66, quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955). The Court, however, “need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies____ If it is easier to dispose of an ineffectiveness claim [solely] on the ground of lack of sufficient prejudice, ... that course should be followed.” Id. at 2069-70.

(b) Counsel’s Failure To Secure Testimony Of Certain Witnesses

A Richmond County Superior Court jury convicted petitioner of committing both the December 23,1975 armed robbery of the Colonial Bakery Thrift Store, located on Fifteenth Street in Augusta, and the July 1,1976 armed robbery of the business office of the Underwood Homes apartment complex. Petitioner’s claim of counsel’s ineffectiveness for failing to secure adequate defense witnesses — ground three— apparently does not concern the bakery store robbery. Indeed, at the evidentiary hearing, petitioner testified that he provided to attorney Tuggle no names of alibi witnesses regarding the armed robbery of the Colonial Bakery. Cf. Washington, 104 S.Ct. at 2066 (“[W]hen a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless, or even harmful, counsel’s failure to pursue those investigations may not later be challenged as unreasonable.”). Petitioner provided to this Court, moreover, no evidence that any defense witness as to the bakery store robbery had been available to counsel. Petitioner thus failed to show that counsel had been deficient with respect to securing witnesses for the bakery store armed robbery charge.

Furthermore, the trial evidence was overwhelming with respect to the bakery store robbery count. The victim identified petitioner as the perpetrator, and on more than one occasion, petitioner confessed to committing the robbery of the bakery. Petitioner even testified at trial that he snatched a money pouch from the hands of the bakery store clerk. Accordingly, even if petitioner had shown that trial counsel failed to interview a witness regarding the bakery store robbery charge, petitioner “would be hard pressed to show prejudice under these facts.” Schwander v. Blackburn, 750 F.2d 494, 500 (5th Cir.1985), accord Raulerson v. Wainwright, 732 F.2d 803, 810 (11th Cir.1984), denial of rehearing en banc 736 F.2d 1528, cert. denied, — U.S. -, 105 S.Ct. 366, 83 L.Ed.2d 302. See also Larsen v. Maggio, 736 F.2d 215, 218 (5th Cir.1984).

At the evidentiary hearing, petitioner testified that some time after the preliminary hearing, he had informed attorney Tuggle of three alibi witnesses as to the Underwood Homes armed robbery charge. Two of the alleged witnesses, the brothers Richard and Thomas Murray, testified at the evidentiary hearing.

“[Cjomplaints of uncalled witnesses are not favored, because the presentation of testimonial evidence is a matter of trial strategy and because allegations of what a witness would have testified are largely speculative.” Buckelew v. United States, 575 F.2d 515, 521 (5th Cir.1978), accord Ford v. Strickland, 696 F.2d 804, 820 (11th Cir.1983) (en banc). See also Schwander, 750 F.2d at 500; Boyd v. Estelle, 661 F.2d 388, 390 (5th Cir.1981). The evidentiary hearing testimony of the Murray brothers was, at best, speculative. Although the testimony indicated that petitioner had lived with Thomas Murray and that Richard Murray had driven both petitioner and Thomas Murray to and from work prior to July, 1976, neither Murray brother could recall petitioner’s whereabouts on July 1, 1976, the day of the Underwood Holmes robbery. See Thomas v. Estelle, 588 F.2d 170, 171 (5th Cir.1979). Additionally, the brothers testified that either in late June, 1976 or early July, 1976, petitioner had ceased working with them; they failed to remember the last day petitioner had worked. “Based on the testimony at the evidentiary hearing[,] ... [tjhere is no way to determine for certain what [the] testimony [of the Murray brothers] would have been back in [1977] and whether it would have made any difference in the outcome of the trial.” Gomez v. McKaskle, 734 F.2d 1107, 1109 (5th Cir.1984).

As previously noted, the Court “need not judge the adequacy of counsel’s performance if [the Court] find[s] that the alleged errors would nevertheless not amount to sufficient prejudice.” United States v. Dimatteo, 759 F.2d 831, 832-834 (11th Cir.1985), citing Washington, 104 S.Ct. at 2069-70. Thus, even assuming that attorney Tuggle failed to interview the alibi witnesses and that such inaction was deficient — an issue the Court does not decide — the Court concludes that considering the totality of the evidence, petitioner has failed to show “there is a reasonable probability that, absent the errors, the fact-finder would have had a reasonable doubt respecting guilt.” Washington, 104 S.Ct. at 2069; Murray v. Maggio, 736 F.2d 279, (5th Cir.1984). Accordingly, petitioner has failed to meet his burden to show prejudice with respect to the alleged failure of counsel to secure witness testimony. Id. See also Schwander, 750 F.2d at 500-01; Gomez, 734 F.2d at 1109-10; Thomas, 588 F.2d at 171.

(c) Counsel’s Failure To Request A Mistrial

At petitioner’s trial, the prosecutor cross-examined Larry Evans, an eyewitness for the defense:

Q. Isn’t it true that you are being held on a crime so vicious that perjury would be pale beside it—
THE COURT: That isn’t proper.
MR. ALLEN: I apologize.
THE COURT: I instruct the jury to disregard the last question to this witness. Don’t let it enter into your consideration of the case.

In his “ground one” for relief, petitioner contends that his attorney’s failure to object to, and request a mistrial based upon, the prosecutor’s question constitutes a defect of constitutional proportions. Petitioner is misguided, however. Review of attorney Tuggle’s deposition and the relevant case authority indicates that Tuggle’s failure to object and request a mistrial was “sound trial strategy.” Washington, 104 S.Ct. at 2066. Indeed, “[a] conscious and informed decision on trial tactics cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness.” Garland v. Maggio, 717 F.2d 199, 206 (5th Cir.1983).

In his deposition, Tuggle indicated that his reasons for not requesting a mistrial were tactical:

[t]he Court chastised the District Attorney to such an extent and told him not to do that anymore, and he told the jury to disregard that ... question, to wipe it from their minds. He instructed them thoroughly on that point, and at that time I thought of raising a motion for mistrial, but did not do so____ And because of those cases that I had recently read on that point, I did not ask for a motion for mistrial because I felt at the time, and I still know, that the Court thoroughly and very explicitly explained to the jury and cured the error that had been made by the District Attorney in tainting the minds of the jury.

Counsel’s assessment of the law is correct, because when a prosecutor has asked an isolated, prejudicial question expressing an opinion as to witness credibility, a prompt and properly worded instruction by the judge to the jury may cure and render harmless any prejudice arising from the question. United States v. Nickerson, 669 F.2d 1016, 1020 (5th Cir.1982) (Unit B, Former Fifth Circuit case); United States v. Bernes, 602 F.2d 716, 721 (5th Cir.1979); United States v. Glover, 677 F.2d 57, 58 (10th Cir.1982); United States v. Leaman, 546 F.2d 148 (5th Cir.1977). Therefore, counsel’s informed decision to forego requesting a mistrial “falls within the wide range of reasonable professional assistance” defense attorneys are presumed to provide. Washington, 104 S.Ct. at 2066. See also Garland, 717 F.2d at 206.

With respect to the prejudice prong of the Washington standard, “[ljittle, if any, prejudice resulted from the unanswered question” to Larry Evans because his testimony was thoroughly impeached during the remainder of cross-examination. United States v. Esle, 743 F.2d 1465, 1477 (11th Cir.1984). Furthermore, “whatever lingering prejudice may have existed was cured by the instruction.” Id. See also Nickerson, supra; Bernes, supra; Glover, supra; Leaman, supra. Accordingly, with respect to his first ground for relief, petitioner not only has failed to demonstrate that counsel was deficient, he has failed to show that such alleged deficiency prejudiced the outcome of his trial. Washington, 104 S.Ct. at 2064-69.

(d) Counsel’s Alleged Failure To Appeal

In his petition, petitioner claims within ground two that attorney Tuggle refused to prosecute an appeal and thus forced petitioner to appeal pro se. This contention, like petitioner’s other claims, is unmeritorious. Tuggle’s representation of petitioner on appeal was recognized by the Georgia Court of Appeals. See Truitt v. State, 146 Ga.App. at 232, 246 S.E.2d 141. Tuggle filed an appellate brief on behalf of petitioner, see Respondent’s Exhibit No. 6, and worked approximately thirty-six hours researching and writing the brief. Answers to Interrogatories at 4. Accordingly, petitioner has failed to demonstrate a reasonable probability that counsel committed the errors enumerated in ground two or that petitioner suffered any prejudice from the alleged errors. See Washington, 104 S.Ct. at 2064-69.

Conclusion

For all the aforementioned reasons, petitioner has not shown that he received ineffective assistance of counsel within the meaning of the Sixth Amendment to the United States Constitution. Accordingly, the Court DENIES petitioner a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and orders the petition DISMISSED.

      . Petitioner obtained parole in December, 1983. “While petitioner’s parole releases him from immediate physical imprisonment, it imposes conditions which significantly confine and restrain his freedom; this is enough to keep him in the ‘custody’ ... within the meaning of the habeas corpus statute.” Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 377, 9 L.Ed.2d 285 (1963). Additionally, petitioner faces other “collateral consequences” flowing from his conviction. Carafas v. LaVallee, 391 U.S. 234, 237-38, 88 S.Ct. 1556, 1559-60, 20 L.Ed.2d 554 (1968). For these reasons, the petition, filed by petitioner during his imprisonment, is not rendered moot by petitioner’s release from incarceration. Jones, supra; Carafas, supra.

      . This Court on three occasions scheduled an evidentiary hearing. At the insistence of the petitioner, and with the acquiescence of the respondents, the Court continued the first hearing for a lengthy period. The Court postponed the second hearing because of a conflict between the Court calendar and the schedules of counsel. The evidentiary hearing finally was held January 15, 1985.

      . Attorney Tuggle is now deceased.

      . After the Court had allowed the petition filed pro se and in forma pauperis, the Court appointed counsel to represent petitioner in this habeas action.

      . While the stark words of ground three suggest that petitioner had no witnesses testify on his behalf at trial, the trial transcript reveals that a Larry Evans testified as an eyewitness for the defense. See Trial Transcript at 36-47. Additionally, petitioner testified at the trial. Id. at 47-51.

      . As noted above, the Georgia Court of Appeals denied petitioner a certificate of probable cause to appeal the adverse decision of the state habeas court.

      . As discussed infra, petitioner’s allegation that counsel failed to appeal is without merit.

      . The exhaustion rule requires that the substance of a federal habeas corpus claim first be presented to the state courts, Picard v. Connor, supra, 404 U.S., at 278, 92 S.Ct., at 513, and the substance of an ineffective assistance of counsel claim is identified by the list of alleged errors committed by counsel. See Domaingue v. Butterworth, 641 F.2d 8, 12-13 (CA1 1981). Unless the state courts have been pointed to a particular error of counsel, a claim based on that error is unexhausted.

        McKaskle v. Vela, — U.S.-, 104 S.Ct. 736, 738, 79 L.Ed.2d 195 (1984) (mem.) (O’Connor, J., joined by the Chief Justice and Rehnquist, J., dissenting from denial of certiorari).

      . The answer-response specifically incorporated by reference respondents' brief. See "Answer-Response” at 1.

      . Rule 5 of the Rules Governing 28 U.S.C. Section 2254 Proceedings requires the answer to "state whether the petitioner has exhausted his state remedies." If the respondents do not categorically state in the answer (or in a motion— see Advisory Committee Note to Rule 5) their position regarding exhaustion, the defense of non-exhaustion is waived. Thompson v. Wainwright, 714 F.2d 1495, 1502 n. 5 (11th Cir.1983); McGee v. Estelle, 722 F.2d 1206, 1215 (5th Cir.1984).

      . After this case had been pending nearly five years (see footnote 2 and the accompanying text), counsel for petitioner attempted to raise for the first time at the evidentiary hearing oral argument additional, unexhausted claims. Counsel, however, had failed to amend the petition and the respondents neither answered the additional claims, nor indicated any inclination to waive exhaustion as to those claims. With respect to the additional grounds, petitioner has done too little, too late. Petitioner’s remedy for the belated claims lies with the courts of the State of Georgia.

      . "A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Washington, 104 S.Ct. at 2068.

      . Only in a narrow class of exceptions, not applicable here, is a petitioner excused from demonstrating both the performance and prejudice prongs of the Washington standard. United States v. Dimatteo, 759 F.2d 831, 832 (11th Cir.1985) (per curiam ), citing United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), and Chadwick v. Green, 740 F.2d 897 (11th Cir.1984).

      . When assessing whether counsel’s errors prejudiced the outcome of the trial, the Court "must consider the totality of the evidence before the judge or jury.” Washington, 104 S.Ct. at 2069.

      . Trial Transcript at 6.

      . Trial Transcript at 28-29, 32, 35-36.

      . Trial Transcript at 47-48.

      . The Court notes, however, that throughout his deposition and answers to interrogatories, Tuggle indicated that he had interviewed all witnesses whom petitioner had identified to him; he declined to subpoena them because they had no relevant knowledge. In contrast, at the evidentiary hearing, petitioner claimed that he had informed Tuggle about the Murray brothers, and the Murrays testified that Tuggle had failed to contact them.

      . Trial Transcript at 44.

      . Deposition of Leonard Tuggle at 10-11.

      . Indeed, the transcript overflows with Evans’ incredible testimony. See Trial Transcript at 39-45.