author: POLOZOLA, District Judge.

text:
    Ruby CARLTON v. Dr. Edward H. WITHERS.
    Civ. A. No. 84-975-B.
    United States District Court, M.D. Louisiana.
    April 29, 1985.

      Robert J. Mack, Mack & O’Neal, Hammond, La., Mary Thornton Duhe’, Taylor, Porter, Brooks & Phillips, Baton Rouge, La., for plaintiffs.
    John Swanner, Seale, Smith & Phelps, Baton Rouge, La., for defendants.
   POLOZOLA, District Judge.

The issue presented in this case is whether a person who intervened as a plaintiff in a state court action and who was later named as a defendant in a counterclaim has a right to remove the counterclaim to federal court. This matter is before the Court on the motion of the plaintiff, Ruby Carlton, to remand this action to the Twenty First Judicial District Court, for the Parish of Livingston, State of Louisiana. No oral argument is required on this motion.

This suit was filed to recover damages resulting from an automobile accident that occurred on January 31, 1980, in Tennessee. Ruby Carlton originally filed suit in the Twenty First Judicial District Court on May 2, 1980, against the following defendants: (1) Dennis Carlton, a Louisiana resident; (2) Excalibur Insurance Company, a foreign insurance company which insured McNair Transport, Inc.; and, (3) McNair Transport, Inc., a Delaware corporation, having its principal place of business in Texas. On May 11, 1983, Dr. Edward H. Withers, a citizen of Texas, filed a petition to intervene in the plaintiff’s suit pending in Livingston Parish to recover for medical services incurred by Ruby Carlton. On June 24, 1983, Ruby Carlton filed an answer to the doctor’s intervention. Thereafter, Ruby Carlton filed an amended answer to the intervention in which she also filed a counterclaim against Dr. Withers seeking $500,000 in damages for his alleged improper and unlawful conduct in connection with his deposition in the state court proceeding. The amended answer and counterclaim was served on Dr. Withers on August 28, 1984. On September 28, 1984, Withers filed a petition to remove only this counterclaim pursuant to 28 U.S.C. § 1446(b), claiming diversity of citizenship as the basis of subject matter jurisdiction. See 28 U.S.C. § 1332.

Thereafter, Ruby Carlton timely filed a motion to remand. Her motion to remand is based upon three grounds: (1) 28 U.S.C. § 1441(c) is not applicable because the claim against Dr. Withers is not a “separate and independent claim or cause of action”; (2) the removal was improper because all defendants in the case did not join in the petition for removal; and, (3) Dr. Withers voluntarily submitted himself to the jurisdiction of the state court by filing the petition of intervention, and therefore, is not a “defendant” for the purposes of the removal statute.

The Court agrees with Ruby Carlton that 28 U.S.C. § 1441(c) is inapplicable to the present set of facts, although not for the reasons stated by the plaintiff nor with the same result contemplated by the plaintiff. 28 U.S.C. § 1441(c) provides that:

Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within the original jurisdiction. (Emphasis added.)

The statute is unambiguous and clearly grants a defendant the authority to remove the entire case consisting of non-removable claims and a “separate and independent claim or cause of action” that would be removable if sued upon alone. However, § 1441(c) is not authority to remove only a claim that would have been removable if it had been sued upon alone.

The fact that the Court has determined that 28 U.S.C. § 1441(c) is inapplicable to the present set of facts does not necessarily mandate a remand of this action to the state court. Instead, the Court must determine whether the action was properly removed under 28 U.S.C. § 1441(a), which provides:

Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division enbraeing the place where such action is pending.

The plaintiff contends that Dr. Withers voluntarily submitted himself to the jurisdiction of the state court by filing the petition of intervention, and therefore, is not a “defendant” for the purpose of removal. Plaintiff relies on Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 105, 61 S.Ct. 868, 871, 85 L.Ed. 1214 (1941) to support her contention. In Shamrock, the United States Supreme Court held that a plaintiff in a state court action could not remove a counterclaim filed against it because it was not a “defendant” for purposes of removal. In Shamrock, the United States Supreme Court relied upon its holding in an earlier decision in West v. Aurora City, 6 Wall. 139, 73 U.S. 139, 18 L.Ed. 819 (1867). The Court concluded that “the plaintiff, having submitted himself to the jurisdiction of the state court, was not entitled to avail himself of a right of removal conferred only on a defendant who has not submitted himself to the jurisdiction.” Shamrock, 61 S.Ct. at 871. Dr. Withers contends, however, that Shamrock is distinguishable from the present set of facts because he was not the original petitioner, but rather an intervenor. Therefore, Dr. Withers argues he is a defendant in the counterclaim and should be entitled to remove this action to federal court.

The question presently before this Court is whether Dr. Withers, an intervenor in a state court action, can be classified as a defendant so that he may be entitled to remove this action. Federal law determines who is a plaintiff and who is a defendant for purposes of applying the removal statute. Chicago, R.I. & P.R. Co. v. Stude, 346 U.S. 574, 580, 74 S.Ct. 290, 294, 98 L.Ed. 317 (1954).

Section 1446(a) authorizes removal only by defendants. Chicago, R.I. & P.R. Co. v. Strude, 346 U.S. 574, 74 S.Ct. 290, 98 L.Ed. 317; Housing Authority of City of Atlanta, Ga. v. Millwood, 472 F.2d 268 (5th Cir.1973). A plaintiff may not remove a case to federal court, even when they are in a position of a defendant with regard to counterclaims asserted against him. Oregon Egg Producers v. Andrew, 458 F.2d 382 (9th Cir.1972); Ford Motor Credit Co. v. Liles, 399 F.Supp. 1282 (W.D.Okla. 1975). In Andrew, the Court held that “[a] plaintiff who commences his action in a state court cannot effectuate removal to a federal court even if he could have originated the action in a federal court and even if a counterclaim is thereafter filed that states a claim cognizable in a federal court.” 458 F.2d at 383.

In determining diversity jurisdiction, parties must be aligned according to their real interests. City of Indianapolis v. Chase National Bank, 314 U.S. 63, 62 S.Ct. 15, 86 L.Ed. 47 (1941) rehearing denied 314 U.S. 714, 62 S.Ct. 355, 86 L.Ed. 569 (1941); Hamer v. New York Rys. Co., 244 U.S. 266, 37 S.Ct. 511, 61 L.Ed. 1125 (1917). This principle applies when determining the propriety of removal based upon diversity jurisdiction. Chicago, R.I. & P.R. Co. v. Stude, 346 U.S. 574, 74 S.Ct. 290, 98 L.Ed. 317; Peters v. Standard Oil Co., 174 F.2d 162 (5th Cir.1949). Therefore, in the present case, Dr. Withers, an intervenor in the state court proceeding must be aligned by this Court as a matter of federal law either as a plaintiff or a defendant. Once so aligned, then the Court may determine if the case was properly removed by a defendant.

In his petition for intervention, Dr. Withers alleged that the plaintiff had assigned to him “all sums which may be due her as a result of the accident of January 31, 1980, in an amount to cover the fees for professional medical services rendered to the plaintiff subsequent to the accident of January 31, 1980, sued upon herein.” In addition, the petition of intervention prayed

[t]hat any damages recovered by the plaintiff in this suit be so apportioned in the judgment so that the claim of Intervenor for professional and medical services rendered to the plaintiff subsequent to the accident sued upon shall take precedent over that of plaintiff to the extent of the professional medical services rendered ... and that the defendant Excalibur Insurance Company be ordered to pay to Intervenor any sums recovered against it in this action up to and including____

As in In re San Antonio & A.P. Ry. Co., 44 Fed. 145 (C.C.W.D.Tex.1890), the intervenor “has no interest in defeating plaintiffs’ demands further than to secure priority for itself.” Since Dr. Withers’ intervention is merely another mechanism to adjudicate his and Ruby Carlton’s rights against the initial defendants in the state court suit, and since such rights (or a proportion thereof) have been assigned to him, this Court holds that the intervenor here, as the one in In re San Antonio & A.P. Ry. Co., 44 Fed. 145, must be aligned as a plaintiff.

Since Dr. Withers has been aligned as a plaintiff by the Court, he has no right to remove the counterclaim filed against him in state court since the right to remove a case to federal court is accorded to defendants only. Counsel for intervenor places great emphasis upon the fact that it is not the intervention that was removed, but rather the counterclaim. This Court feels that once a party has been classified as a plaintiff, the principles set forth above in this opinion apply which preclude removal in this case. Although the intervenor, in defending a counterclaim, is for that purpose a “defendant”, he is not a “defendant” within the meaning of the removal statute since he has been aligned as a plaintiff by virtue of the pleading which introduced him into the state court suit.

Since Dr. Withers as a plaintiff had no right to remove this action, the Court finds that this action was removed “improvidently and without jurisdiction”. Therefore, in accordance with 28 U.S.C. § 1447(c), this Court must order a remand of this action to the Twenty First Judicial District Court for the Parish of Livingston.

In addition, the Court must note that the removal petition was not timely filed as required by § 1446(b). The time limitations in § 1446(b) are mandatory and must be strictly construed in accordance with the computation principles set forth in Rule 6 of the Federal Rules of Civil Procedure. Royal v. State Farm Fire & Cas. Co., 685 F.2d 124 (5th Cir.1982). Dr. Withers was served with the counterclaim on August 28, 1984. The removal petition was filed on September 28, 1984, thirty one days after service of the counterclaim. While Ruby Carlton has not moved to remand on the ground that the removal was untimely, she has objected to the removal. Therefore, for this additional reason, this suit must be remanded to state court.

Therefore:

IT IS ORDERED that the motion of the plaintiff, Ruby Carlton, to remand this action to the Twenty First Judicial District Court, for the Parish of Livingston, State of Louisiana, be and it is hereby GRANTED.

Judgment shall be entered accordingly.

      . 28 U.S.C. 1446(b) provides, in pertinent part, that:
      If the case stated by the initial pleading is not removable, a petition for removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, or order or other paper from whch it may first be ascertained that the case is one which is or has become removable.

      . As noted in footnote 1, a petition for removal must be filed within thirty days. The removal petition was not filed until the thirty-first day. While the parties have not discussed the issue of timely removal, the court will do so later in this opinion.

      . See Central of Georgia Railway Co. v. Riegel Textile Corp., 426 F.2d 935, 937 (5th Cir.1970), in which the Fifth Circuit stated that "[s]ubsection (c) [of 28 U.S.C. § 1441] describes conditions under which an entire case may be removed."

      . In Stude, the Court stated that "[f]or purposes of removal, the federal law determines who is plaintiff and who is defendant. It is a question of the construction of the federal statute on removal, and not the state statute. The latter's procedural provisions cannot control the privilege of removal granted by the federal statute.” Chicago, R.I. & P.R. Co. v. Stude, 346 U.S. 574, 580, 74 S.Ct. 290, 294, 98 L.Ed. 317 (1954).. See abo Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 105, 61 S.Ct. 868, 870, 85 L.Ed. 1214 (1941), where the Court stated that "[t]he removal statute which is nationwide in it operation, was intended to be uniform in its application, unaffected by local law definition or characterization of the subject matter to which it is to be applied." See also: City of Owatonna v. Chicago, R.I. & P.R.R., 298 F.Supp. 919 (D.Minn. 1969); Mason City & Ft. D.R. Co. v. Boynton, 204 U.S. 570, 27 S.Ct. 321, 51 L.Ed. 629 (1907); 1A Moore’s Federal Practice, ¶ 0.157[7], p. 142-143; 14A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure, § 3730 (2d ed. 1985).

      . See abo 14A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure, §§ 3730-3731 (2d ed. 1985).

      . See paragraph 3 of the petition for intervention and attachment “A” thereto.

      . See paragraph 3 of the prayer of the petition for intervention.

      . See also Ford Motor Credit Co. v. Liles, 399 F.Supp. 1282 (W.D.Okla.1975), where the Court held that a party that originally filed an action in state court to collect sums allegedly due on a continuing guaranty agreement executed by defendants was precluded in its capacity as a plaintiff from removing the action to federal court even if it was subjected to a cross petition by defendants in state court.

      . Section 1447(c) provides that “[i]f at any time before final judgment it appears that the case was removed improvidently and without jurisdition, the district court shall remand the case, and may order the payment of just costs".

      . Since the Court has determined that this action was removed improvidently and without jurisdiction- because the intervenor is not a defendant, the Court sees no necessity in addressing the plaintiffs contention that this action should be remanded because all the defendants did not join the petition for removal.

      . See generally 14A C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure, § 3732 (2d ed. 1985).


source: Caselaw Access Project

author: POLOZOLA, District Judge:

license: Public Domain

text:
    Randy T. FLETCHER v. TRI-STATE MILL SUPPLY COMPANY, INC.
    Civ. A. No. 83-861-B.
    United States District Court, M.D. Louisiana.
    April 29, 1985.

      R. Neal Wilkinson, Baton Rouge, La., for plaintiff.
    Robert J. Vandaworker, Taylor, Porter, Brooks & Phillips, Baton Rouge, La., for defendant.
   POLOZOLA, District Judge:

This suit involves a dispute over an employment contract entered into between the parties. Randy Fletcher originally filed this action in state court against his former employer, Tri-State Mill Supply Company, Inc. (“Tri-State”). He seeks recovery of sales commissions allegedly due him under an employment contract pursuant to Louisiana R.S. 23:631, as well as penalties and attorney’s fees under Louisiana R.S. 23:632. The suit was timely removed to this Court. Thereafter, a trial was held on the issue of liability alone.

Tri-State is an industrial mill supplier which was formed as a subsidiary of Georgia Pacific to provide supplies to Georgia Pacific plants in the mid-south area. Although Tri-State was sold to Hollis & Co. in 1979, Georgia Pacific remains Tri-State’s primary customer.

Fletcher was hired as an outside salesman in August of 1981 by Bill Lane, the manager of the Baton Rouge branch of Tri-State. Tri-State’s company form PR-350, entitled “Employment Change Record,” was signed by Fletcher, Lane and Curtis Cook, the company president. This form provided: “Randy to start at above salary [$l,700/month] f/a period of 6 months at with [sic] time he will go to commission basis (21.6%) of gross.” At the expiration of the six month period, Fletcher was placed on a commission basis. A standard form contract was then signed by Fletcher and by Bill Lane on behalf of Tri-State on March 29, 1982. This contract provided that plaintiff would receive a 12% commission on the gross profits of all sales to Georgia Pacific and 21.6% commission on the gross profits of all other sales. Fletcher and Lane also signed another PR-350 which stated simply “change to commission.”

On April 8, 1982, Fletcher received a letter from Lane which purported to modify the contract of March 29. This letter provided that the commission on power transmission supplies would be only 5% of the gross profits, but in all other respects the amount of commissions remained the same. Fletcher’s acceptance of this modification was to be made on another PR-350.

By April 16, 1982, Cook had received the contract of March 29. He testified that he called Lane and advised him that the percentage for sales to Georgia Pacific was too high and that the percentage for power transmission supplies should be spelled out. Cook suggested that a commission of 8% on Georgia Pacific sales would be more appropriate. Lane relayed this information to Fletcher, and a series of negotiations ensued. Fletcher was paid under the March 29 contract for the months of April and May, but an agreement was reached between the parties in late May. A memo from Lane to Cook dated March 24, 1982, stated:

“We would like to put Randy back on his original pay plan, which was a salary of $1800.00 per month. We are at the same time giving him notice that by the first of the year if his rate of both G.P. and outside accounts are not satisfactory he will be terminated.”

Fletcher received the $1,800 per month salary from June through December, 1982, at which time he agreed to return to a commission basis. On December 29, 1982, a new PR-350 was prepared which was signed by Lane and Cook, but not by Fletcher. It stated “change to commission 21.6% general line (5% Power transmission) except G.P. 4% 1st 10,000 gross profit, 8% 2nd, 12% thereafter.” In April of 1983, Fletcher was advised that as of June 1, 1983, sales to Georgia Pacific would be compensated at a flat rate of $400 per month. On May 16, 1983, two weeks before the new pay plan was to go into effect, Fletcher demanded that he be paid a commission of 12% on all Georgia Pacific sales from June 1, 1982, forward, pursuant to the contract of March 29, 1982. His demand was rejected immediately. On June 13, 1983, Fletcher was fired.

Tri-State contends that the employment contract of March 29, 1982, was subject to approval by Cook and that Lane had no authority to bind the company. As manager of Tri-State's Baton Rouge branch, Lane had the authority to hire and fire and to enter into contracts with outsiders. TriState contends, however, that although Lane had always set the salaries of those he hired, he had no actual authority to do so. Thus, Tri-State argues that the contract never came into existence because it was never approved by Cook.

Fletcher contends that if Lane did not have actual authority, he was clothed with that authority by Tri-State. Lane set the original amount of Fletcher’s salary, which was routinely approved. When the contract of March 29 was executed, Lane did not advise Fletcher that final approval would have to come from the home office. Fletcher testified that he was under the impression that a binding contract had been executed providing for the company’s standard commission. Fletcher’s testimony is corroborated by the testimony of Thomas Erwin, another outside salesman hired at approximately the same time as Fletcher. Erwin was placed on commission at the same time as Fletcher and executed an identical contract. He testified that he also thought that Lane had authority to execute the contract on behalf of Tri-State. For reasons which follow, the Court agrees with plaintiff’s contention and finds that a valid employment contract was entered into between the plaintiff and Tri-State on March 29, 1982.

“Apparent authority” is a legal doctrine the purpose of which is to protect persons dealing in good faith with corporate agents clothed by their principals with apparent authority to act on the corporation’s behalf. Pailet v. Guillory, 315 So.2d 893, 896 (La.App.3d Cir.1975); Analab, Inc. v. Bank of the South, 271 So.2d 73, 76 (La.App. 4th Cir.1972). When a third party who has neither knowledge of nor reason to believe that there are limitations on an agent’s authority deals with the agent, the principal is bound by the agent’s acts, even though beyond the agent’s actual authority. Pailet, supra. Two requirements must be met for the doctrine of apparent authority to apply: (1) The principal must make some form of manifestation to an innocent third party; and, (2) the third party must rely reasonably on the purported authority of the agent as a result of the manifestation.* Bamber Contractors v. Morrison Engineering & Contracting Co., 385 So.2d 327, 330 (La.App. 1st Cir.1980).

If Lane did not have the authority to set the amount of compensation employees were to receive, this Court finds that Tri-State took such actions as to create the impression that he had apparent authority to do so. Tri-State gave Lane the authority to hire and fire, to recommend salaries, and routinely approved all of his recommendations. The contract form itself, which was provided by Tri-State, gave no indication that the company president had to approve the contract. The signature area of the contract appears as follows:

TRI-STATE MILL SUPPLY CO., INC. /s/ Bill C. Lane
/s/ Branch Manager TITLE
/s/ Randy Fletcher SALESPERSON

Tri-State contends , that the signature blank for “President” on the PR-350 forms should have indicated to Fletcher that further approval by the President of the wage change was needed. However, these forms are completed for every personnel action, including hiring, a function admittedly within Lane’s authority.

Even if a principal clothes his agent with apparent authority, the principal will not be bound unless the third party’s reliance on the corporate agent’s apparent authority was reasonable. The reasonableness of this reliance is to be determined from all of the facts and circumstances of the case. Manuel Truck & Equipment Co. v. B. G. Hooker Petroleum Transport, 430 So.2d 1367,1371 (La.App. 3rd Cir.1983); Analab, Inc. v. Bank of the South, 271 So.2d 73, 76 (La.App. 4th Cir.1972).

This case is strikingly similar to the case of Lanier v. Alenco, 459 F.2d 689 (5th Cir.1972). Lanier was hired by Shelton, defendant’s branch manager, for a term of one year. When his employment was terminated before the end of the term, he sued under Louisiana R.S. 23:631. His employer contended that Shelton had authority generally to hire, but not to hire for a fixed term. The court found, however, that apparent authority to hire for a fixed term had been created by the corporation. In reply to the corporation’s argument that Lanier’s reliance was unreasonable, the court stated:

[I]t was not at all unreasonable that a prospective employee would not question the hiring authority of the branch manager of the plant in which he was to work, absent something in the negotiations or in the express and announced policies of the company that would reasonably lead him to suspect otherwise.

This Court finds that under the facts and circumstances of this case, Fletcher’s reliance on Lane’s authority was reasonable. To the best of Fletcher’s knowledge, Fletcher’s salary had been set by Lane. Lane failed to advise Fletcher that his new compensation rate would have to be approved by the home office. It is also clear that this fact was not evident from the nature of the transaction. Furthermore, the authority to set an employee’s salary normally is concomitant with the authority to hire. Lane’s action in presenting Fletcher with a form commission contract was not extraordinary for a branch manager, and Fletcher had no reason to suspect that Lane lacked authority to set the amount of the commission. Thus, since Lane was clothed with apparent authority by TriState, a binding employment agreement was created when Lane executed the March 29, 1982 contract on behalf of TriState.

The defendant contends, however, that even if a contract did exist, a novation occurred when Fletcher reached an agreement with Tri-State to be compensated at the rate of $1,800 per month straight salary instead of on the commission basis set forth in the contract. The Court agrees with defendant’s contention. The applicable principles of novation are set forth in articles 2185 through 2190 of the Louisiana Civil Code. Novation is a contract whereby an existing obligation is extinguished and a new one is substituted in its place. All kinds of legal obligations are subject to novation. The Civil Code sets forth three ways in which novation takes place. The first, which is applicable in this case, is where a debtor contracts a new debt to his creditor. The new debt is substituted for the old one, which is extinguished. Novation is never presumed. The intention to novate is the determining factor to be considered by the Court. This intention may be shown by the character of the transaction, the facts and circumstances surrounding it, and the terms of the agreement itself. Placid Oil Co. v. Taylor, 325 So.2d 313, 316 (La.App. 3d Cir.1975); Antoine v. Elder Realty Co., 255 So.2d 625, 628 (La. App. 3d Cir.1971); Huval Tractor, Inc. v. Journet, 413 So.2d 978, 981 (La.App. 3d Cir.1982).

In this case, the facts and circumstances surrounding the agreement between Fletcher and Tri-State to pay Fletcher $1,800 per month beginning June 1, 1982, clearly indicate that the parties intended to extinguish all obligations of TriState under the commission contract of March 29, 1982, and to substitute a new employment contract in its place. Fletcher was paid for almost a year on various terms other than those set forth in the March 29, 1982 contract. He willingly accepted a salary of $1,800 per month for six months. Beginning on January 1, 1983, he accepted payment on a sliding commission basis. Fletcher failed to assert the continuing validity of the contract of March 29, 1982, until May 16, 1983, two weeks before the effective date of a new pay plan which replaced his Georgia Pacific commission with a flat fee of $400 per month. Thus, the Court finds that the agreement between the parties which changed Fletcher’s method of compensation from commission to salary effective June 1, 1982, was a novation which extinguished any obligation of. Tri-State under the contract of March 29,1982.

In summary, the Court finds that TriState clothed Lane, its branch manager, with apparent authority to fix the amount of compensation paid to employees including the plaintiff. Fletcher’s reliance upon Lane’s authority was reasonable under the circumstances of this case. Consequently, the execution of the employment agreement of March 29, 1982, by Lane created a valid and binding contract. However, the contract was extinguished by novation when the new agreement to return Fletcher to a salaried basis was reached by the parties. As a result of the novation, the defendant has paid the plaintiff all of the salary which was due him under the various agreements and pay plans. Therefore, plaintiff is not entitled to recover additional compensation from the defendant under the facts of this case.

For the above reasons, plaintiff’s suit shall be dismissed with prejudice at his costs.

Judgment shall be entered accordingly.

      . La.R.S. 23:631 provides in pertinent part:
      A. Upon the discharge or resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, not later than three days following the date of discharge or resignation. Said payment shall be made at the place and in the manner which has been customary during the employment, except that payment may be made via United States mail to the laborer or other employee, provided postage has been prepaid and the envelope properly addressed with the employee’s or laborer’s current address as shown in the employer's records. In the event payment is made by mail the employer shall be deemed to have made such payment when it is mailed. The timeliness of the mailing may be shown by an official United States postmark or other official documentation from the United States Postal Service.
      B. In the event of a dispute as to the amount due under this Section, the employer shall pay the undisputed portion of the amount due as provided for in Subsection A of this Section.

      . La.R.S. 23:632 provides:
      Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.

      . Jurisdiction is based upon diversity under 28 U.S.C. § 1332. Fletcher is a Louisiana resident; Tri-State is an Arkansas corporation.

      . Apparently Cook had not received a copy of the letter of April 8, since that letter did set out the percentage for power transmission supplies.

      . While the plaintiff has not ’ argued that the contract was approved by Cook,- it is interesting to note that the PR-350 which Lane and Fletcher signed on March 29 was signed by Cook.

        . Counsel for defendant argues at great length in his brief that the third party's reliance must be detrimental for the doctrine of apparent authority to apply. However, the jurisprudence upon which he relies speaks not of detrimental reliance but of reasonable reliance.

      . Lanier v. Alenco, 459 F.2d 689 at 693 (5th Cir.1972).

      . See Analab, Inc. v. Bank of the South, 271 So.2d 73, 76 (La.App. 4th Cir.1972).

      . See Manuel Truck & Equipment Co. v. B.G. Hooker Petroleum Transport, 430 So.2d 1367, 1371 (La.App. 3d Cir.1983).

      . The obligations articles of the Louisiana Civil Code were amended in 1984. As these changes were substantive, the articles as they existed prior to the amendments will be applied.

      . La.Civ.Code art. 2185 (1952) (current version at La.Civ.Code art. 1879 (Supp.1984)).

      . La.Civ.Code art. 2188 (1952) (eliminated as unnecessary (Supp.1984)).

      . La.Civ.Code art. 2189 (1952) (current version at La.Civ.Code art. 1881 (Supp.1984)).


author: HAIGHT, District Judge:

text:
    UNITED STATES of America, v. Pedro GOTAY and Augustus Campbell, Defendants.
    No. S85 Cr. 180-CSH.
    United States' District Court, S.D. New York.
    April 30, 1985.
    Rudolph W. Giuliani, U.S. Atty. for the S.D.N.Y., New York City, for the U.S.; Michael Kellogg, Asst. U.S. Atty., New York City, of counsel.
    Federal Defender Service Unit, The Legal Aid Society, New York City, for defendants; David Gordon, New York City, of counsel.
   MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge:

By superseding indictment, defendant Campbell has been charged with co-defendant Gotay with conspiring to violate 18 U.S.C. §§ 922(b)(2) and 922(a)(1). Superseding Indictment, Count One. In addition, Campbell has been charged with substantive violations of §§ 922(b)(2), 922(m), and 924(a). Id., Counts Four, Five and Six. These sections relate to unlawful acts involving firearms. If convicted, defendant faces terms totalling five years’ imprisonment on each of the four counts in which he is named, together with fines totalling $25,000.

Following his. apprehension, Campbell was brought before Magistrate Buchwald. The Government applied for an order of pretrial detention pursuant to 18 U.S.C. § 3142(e). The Magistrate denied that application, and required as bail a $200,000 unsecured bond, to be co-signed by four “financially responsible persons.” Campbell was detained because he could not satisfy those terms and conditions. The case was assigned to the undersigned for trial; and thereafter Campbell, through his counsel, applied to the Court for amendment of the conditions of his release. 18 U.S.C. § 3145(a)(2).

At first I ruled that I would reduce the number of co-signers from four to two, leaving the face amount of the bond at $200,000, if ten percent cash security, or $20,000, was furnished. Defendant states that those conditions are equally impossible for him to meet. Instead, he asks that there be no requirement of cash security; and he offers two co-signers of modest means — clearly not “financial responsible” if that phrase is taken to mean an ability to pay the amount specified in the bond if Campbell fails to appear at his trial. Campbell argues that, given his limited economic circumstances and those of his acquaintances, this is all that the law entitles the trial court to ask of him. He places particular reliance upon the penultimate sentence of 18 U.S.C. § 3142(c). The argument raises interesting questions of construction of the recently enacted Bail Reform Act of 1984.

The penultimate sentence of subsection 3142(c) reads:

“The judicial officer may not impose a financial condition that results in the pretrial detention of the person.”

Campbell argues that requirements that a bond be partially secured, or co-signed by persons of demonstrable economic responsibility, both operate to “impose a financial condition”; and where, as here (according to defendant’s averments), neither he nor his acquaintances can satisfy that “financial condition,” the failure in practical effect “results in the pretrial detention” of Campbell. This is said to violate the quoted provision from subsection 3142(c).

That argument, carried to its logical extreme, would require the release of any defendant sufficiently indigent, and whose family and friends are sufficiently indigent, to prevent them from posting any financial security to assure the defendant’s appearance at trial. In short, the more unable the defendant may be to give economic assurances of his appearance, the more he is entitled to be released on bail.

This seems a doubtful proposition, although I would of course accept it if it reflected the clear intent of Congress in passing the Bail Reform Act. But I decline to so construe the statute.

The sentence upon which Campbell relies cannot be taken entirely out of context. The statutory scheme must be considered. Subsection 3142(b) requires the judicial officer to release a defendant on his own recognizance, or upon execution of an unsecured appearance bond, “unless the judicial officer- determines that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community.”

If release of the defendant on personal recognizance or an unsecured appearance bond does not give sufficient assurance of his appearance or of the community’s safety, the judicial officer must then go on to section 3142(c), and consider whether the defendant’s release on stated conditions would furnish the requisite assurances. The judicial officer, proceeding under section 3142(c), must impose “the least restricted further condition, or combination of conditions” that the judicial officer determines will reasonably assure the defendant’s appearance and the community’s safety. 18 U.S.C. § 3142(c)(2). One of the specific options given by the statute, and the option which Magistrate Buchwald chose in the case at bar, requires the defendant to:

“... execute a bail bond with solvent, sureties in such amount as is reasonably necessary to assure the appearance of the person as required____” 18 U.S.C. § 3142(c)(2)(L).

I construe an appearance bond with “financially responsible” co-signers as falling within the concept of this subsection.

Subsection 3142(e), which deals with the subject of “detention,” provides in its first sentence:

“If, after a hearing pursuant to the provisions of subsection (f), the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community, he shall order the detention of the person prior to trial.”

Subsection (e) goes on to deal with rebut-table presumptions requiring detention which arise from circumstances not present in the case at bar.

It is apparent from these provisions that assuring the Court of a defendant’s appearance at trial is a central objective sought to be achieved by the statute. That objective must be kept in mind when one considers the sentence in subsection (e), stressed by Campbell, that the judicial officer “may not impose a financial condition that results in the pretrial detention of the person.”

Thus we come to the case at bar. The Magistrate refused the Government’s application for pretrial detention under subsection (e), but regarded Campbell as inappropriate for release on personal recognizance or unsecured appearance bond under subsection (b). Accordingly the Magistrate provided for Campbell’s release on certain economic conditions, acting under subsection (c). Campbell now says he cannot meet those conditions, either as specified by the Magistrate or amended by this Court’s first ruling. His argument, based as I have said upon the quoted sentence from subsection (c), is that his indigence and that of his family and friends entitles him to the practical equivalent of a subsection (b) release on personal recognizance or unsecured appearance bond.

I reject that construction because I do not consider it to be consistent with the intent of Congress. The intent of Congress, in respect of the provision upon which Campbell relies, is set forth in S.Rep. No. 98-225, 98th Cong., 1st Sess., at 15-16, U.S.Code Cong. & Admin.News 1984, p. 3182, 3198:

As discussed above, the Committee was urged in the last Congress to abolish financial conditions of release in order to insure that imposition of excessively high bonds was not used to achieve the detention of dangerous defendants. Although the Committee and the Senate decided to retain financial conditions of release, concern about the potential for such abuse does exist. Consequently, the use of the conditions of release set out in sections 3142(c)(2)(K) and 3142(c)(2)(L) is specifically limited to the purpose of assuring the appearance of the defendant.
“In addition, section 3142(c) provides that a judicial officer may not impose a financial condition of release that results in the pretrial detention of the defendant. The purpose of this provision is to preclude the sub rosa use of money bond to detain dangerous defendants. However, its application does not necessarily require the release of a person who says he is unable to meet a financial condition of release which the judge has determined is the only form of conditional release that will assure the person’s future appearance. Thus, for example, if a judicial officer determines that a $50,000 bond is the only means, short of detention, of assuring the appearance of a defendant who poses a serious risk of flight, and the defendant asserts that, despite the judicial officer’s finding to the contrary, he cannot meet the bond, the judicial officer may reconsider the amount of the bond. If he still concludes that the initial amount is reasonable and necessary then it would appear that there is no available condition of release that will assure the defendant’s appearance. This is the very finding which, under section 3142(e), is the basis for an order of detention, and therefore the judge may proceed with a detention hearing pursuant to section 3142(f) and order the defendant detained, if appropriate. The reasons for the judicial officer’s conclusion that the bond was the only condition that could reasonably assure the appearance of the defendant, the judicial officer’s finding that the amount of the bond was reasonable, and the fact that the defendant stated that he was unable to meet this condition, would be set out in the detention order as provided in section 3142(i)(l). The defendant could then appeal the resulting detention pursuant to section 3145.”
(emphasis added; footnote omitted).

In the case at bar, the point arises not during the subsection (f) detention hearing before the Magistrate, but rather on defendant's application to the district court for review of the Magistrate’s release order. 18 U.S.C. § 3145(a)(2). But the same statutory principles apply.

The crimes charged in the indictment against defendant are serious. While intimating no view as to what the sentence would actually be in the event of conviction, I think it fair to say that the terms of imprisonment the defendant faces at least potentially are significant. He has no particular family roots in the community. These factors combined to give the Magistrate legitimate concern with respect to assurances of the defendant’s appearance at trial. I share that concern. Accepting arguendo that defendant cannot comply with the economic conditions of release, as set by the Magistrate or suggested by the Court in my first ruling, the legislative history of the statute makes it clear that Campbell’s release is not “necessarily require^].” In this case, I conclude that the better course is to continue in effect those terms and conditions of release which will assure the defendant’s appearance at trial.

Accordingly the application of defendant Campbell for a review and amendment of the conditions of his release is denied.

It is SO ORDERED.


author: BUA, District Judge.

text:
    William L. WALLEN, Plaintiff, v. Graham LOVING, Jr., Defendant.
    No. 84 C 1632.
    United States District Court, N.D. Illinois, E.D.
    May 1, 1985.

      Patrick J. O’Donnell, Brace & O’Donnell, Chicago, 111., for plaintiff.
    Richard B. Berland, Chicago, Ill., for defendant.
   ORDER

BUA, District Judge.

Before the Court is defendant’s motion to transfer the case to the United States District Court for the District of Colorado pursuant to Title 28 U.S.C., Section 1404(a). For the reasons stated herein, the defendant’s motion is granted.

I. FACTS

This is an action for the failure to fulfill obligations in connection with a promissory note. The action was brought by William L. Wallen, who is domiciled in Illinois but has a residence in and owns or has an interest in a business which is located in Aspen, Colorado. The defendant, Graham Loving, Jr., is a resident of and domiciled within the State of Colorado. Venue is proper under 28 U.S.C. § 1391, and jurisdiction is proper under 28 U.S.C. § 1332.

Plaintiff’s claim arises out of transactions which occurred almost ten years ago which gave rise to a promissory note in which Dan Weigner and C.M. Clark, both Colorado residents, and the plaintiff entered into negotiations for the purchase of, among other things, stock in Number One Main Corporation, a Colorado corporation, which owns premises commonly known as the Pomegranate Inn, located at or near Aspen, Colorado. The principal obligor of the promissory note is The Pomegranate Corporation, a Colorado corporation, .and one of the co-signors and guarantors of the promissory note is the defendant, a resident of Colorado. The promissory note was also co-signed and guaranteed by Ludwig J. Czerhat, who was a resident of Colorado at the time of the transactions.

In consideration for the execution of the promissory note, the plaintiff was to deliver to The Pomegranate Corporation 25 shares of Class B common stock of Number One Main Corporation, the owner of the Pomegranate Inn. As part of this transaction, the plaintiff was to purchase 500 shares of the common stock of The Pomegranate Corporation for $5,000. Additionally, at the plaintiff’s request, some of the funds due on the promissory note were transferred by The Pomegranate Corporation to Number Two Main Corporation, a Colorado corporation, the owner of the Plum Tree, which is located near Aspen, Colorado, so that the plaintiff could acquire stock therein.

II. DISCUSSION

A change of venue , is governed by 28 U.S.C. § 1404(a) which provides in pertinent part:

(a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.

Section 1404(a) requires that the movant must establish “(1) that venue is proper in the transferor district; (2) that the transferor court has the power to transfer the case (that is, that the transferee court is in a district ‘where it might have been brought’); and (3) that the transfer is for the ‘convenience of the parties and witnesses in the interest of justice.’ ” Hotel Constructors, Inc. v. Seagrave Corp., 543 F.Supp. 1048,1050 (N.D.Ill.1982). Requirements (1) and (2) are met in this case. Since the plaintiff resides in Illinois, venue is proper in this district. In addition, this action could have been brought in the District of Colorado, which has proper venue and jurisdiction, because defendant resides there under 28 U.S.C. §§ 1332 and 1391.

The Court now turns to requirement (3). A “clear balance of inconvenience” in this district over the transferee district must be shown by the movant to support a motion to transfer. Id.; see also S.E.C. v. First National Finance Corp., 392 F.Supp. 239, 240 (N.D.Ill.1975). In determining whether the movant has met this burden, the Court must consider the factors specifically mentioned in § 1404(a) while also giving weight to plaintiff’s choice of forum. These factors include convenience of the parties, convenience of the witnesses and the interests of justice.

1. Plaintiffs Choice of Forum

Under the common law doctrine of forum non conveniens the plaintiff’s choice of forum was entitled to considerable weight. However, since the enactment of § 1404(a), the significance of plaintiff’s choice of forum has diminished. Norwood v. Kirkpatrick, 349 U.S. 29, 32, 75 S.Ct. 544, 546, 99 L.Ed. 789 (1955); Hotel Constructors, Inc. v. Seagrave Corp., 543 F.Supp. at 1050. Moreover, where the forum lacks any significant contact with the underlying cause of action, the value of the plaintiff’s choice of forum is reduced further. Cunningham v. Cunningham, 477 F.Supp. 632, 634 (N.D.Ill.1979). In such a case, the plaintiff’s choice of forum becomes just one of the many factors utilized by the Court in making its determination of convenience. General Signal Corp. v. Western Electric Co., 362 F.Supp. 878, 880 (N.D.Ill.1973).

In the instant case, the question of where the promissory note was executed is in dispute. Plaintiff contends that the note was received, signed, executed and delivered in the law offices of Sidley & Austin in Chicago, Illinois. Defendant contends that the note was executed in the State of Colorado. Furthermore, the defendant argues that all of the underlying transactions giving rise to the execution of the promissory note occurred in Colorado.

The principal obligor of the note is The Pomegranate Corporation, a Colorado corporation, and both of the co-signors and guarantors are Colorado residents. Each principal involved in the negotiations which gave rise to the note, including the plaintiff, has a residence in Colorado and maintain an interest in a business there. Moreover, all the entities involved in the transactions . between the parties, including The Pomegranate Corporation, Number One Main Corporation, and Number Two Main Corporation, are all Colorado corporations licensed to do business there.

The Court agrees with the defendant that the plaintiff’s claim of failure to fulfill the obligations connected with a promissory note rests on a question of the note’s formation and execution. This execution occurred for the most part during negotiations in Colorado. For these reasons, Illinois is not conclusively where the cause of action arose and, therefore, plaintiff’s choice of forum will be given equal consideration along with the other factors which must be considered under § 1404.

2. Convenience of the Parties and Witnesses

The convenience of both the parties and witnesses is specifically pointed to under § 1404(a) as factors to be analyzed by the Court when deciding on a motion to transfer. The facts presented in this case indicate that the inconvenience to the parties is not equivalent if this action remains here. The plaintiff has a residence in and owns or has an interest in a business which is located in Aspen, Colorado. The defendant, however, does not have any similar contacts with the State of Illinois. The expense incurred and the inconvenience suffered by the parties is not equivalent when considering the contact the parties have to the districts. Plaintiff’s inconvenience if this action is transferred to the District of Colorado is outweighed by defendant’s inconvenience if this action remains here.

In analyzing the convenience of witnesses, the Court must look at the period of time the witnesses will be away from their jobs and the expenses incurred for the witnesses. Moreover, this Court must consider the quality of testimony of the witnesses in the ease and the number of potential witnesses in the transferor and transferee districts. Midwest Precision Services v. PTM Industries, 574 F.Supp. 657, 659 (N.D.Ill.1983). In considering the attendance of willing and unwilling witnesses, it appears clear from the facts that the significant underlying transactions giving rise to the execution of the promissory note occurred in Colorado and therefore it is the most convenient forum for all the witnesses involved.

The three principals in the negotiations for the Pomegranate Inn are from Colorado. Ludwig J. Czerhat, who executed the promissory note as President of The Pomegranate Corporation and who is also a co-signor and guarantor, was a resident of Colorado at the time of the transactions. Consequently, there is far greater convenience to these witnesses if the action is transferred. Additionally, all corporations involved in any way with the transactions are Colorado corporations and the various properties involved in the transactions between the parties, including the Pomegranate Inn and the Plum Tree, are located at or near Aspen, Colorado. Consequently, the ability of obtaining unwilling witnesses, as well as documents, to the negotiations is enhanced by the transfer of this action to a district court with the power to compel their appearance. In contrast, the plaintiff argues that he may only call as witnesses his attorney and his secretary, both of whom reside in Chicago, Illinois.

On balance, considering the number of witnesses, the testimony regarding the negotiations and the documentation of the transactions, the Court finds that the convenience of the witnesses would best be served by the transfer of this case to the District of Colorado.

3. Interest of Justice

The Court concludes that the final factor to be considered under § 1404(a) supports transfer to the District of Colorado. Under Illinois conflict of law principles, the law of the state in which a promissory note is executed and delivered is the applicable law. Shircliff v. Dixie Drive-In Theatre, Inc., 7 Ill.App.2d 370, 129 N.E.2d 346 (3d Dist.1955). While the question of the execution and delivery of the promissory note remains disputed, the significant transactions underlying the note’s execution took place in Colorado. Therefore, the corporate transactions and the obligations under the promissory note may involve a question of Colorado law. These facts make transfer of the action appropriate. This is not because Illinois law is uncertain in this area, but rather because issues of local law are best construed by courts most familiar with them. Hotel Constructors, Inc. v. Seagrave Corp., 543 F.Supp. at 1052.

For the reasons stated above, the defendant’s motion to transfer is granted.

IT IS SO ORDERED.


author: VANARTSDALEN, District Judge.

text:
    Charlotte BALDI, in her own right, as Trustee Ad Litem and as Administratrix of the Estate of William Baldi, Deceased, v. CITY OF PHILADELPHIA, et al.
    Civ. A. No. 85-1314.
    United States District Court, E.D. Pennsylvania.
    May 8, 1985.

      ■ John Mattioni, Mattioni, Mattioni & Mattioni, Ltd., Philadelphia, Pa., for plaintiff.
    Norma S. Weaver, Deputy City Solicitor, Philadelphia, Pa., for defendants.
   MEMORANDUM AND ORDER

VANARTSDALEN, District Judge.

The primary question before the court is whether a twenty minute police detention of the driver of a motor vehicle, stopped for a minor traffic violation while transporting plaintiff’s decedent to the hospital, creates a cause of action on behalf of the decedent under section 1983 of the Civil Rights Act as a deprivation of life or liberty without due process of law. This case brings to mind the admonition of Judge Posner of the Seventh Circuit:

No problem so perplexes the federal courts today as determining the outer bounds of section 1 of the Civil Rights Act of 1871, 42 U.S.C. § 1983, the ubiquitous tort remedy for deprivations of rights secured by federal law (primarily the Fourteenth Amendment) by persons acting under color of state law.

Jackson v. City of Joliet, 715 F.2d 1200, 1201 (7th Cir.1983).

The issue presented in this case requires analyzing the “outer bounds” of section 1983 liability. It presents an unusual factual situation. Care must be taken to assure that the complaint sets out a cause of action under section 1983. Actions of police officers are only actionable under section 1983 if done under color of state law and deprive an individual of a right, privilege or immunity secured by the Constitution or laws. Section 1983 was not intended to transform all common law torts (whether negligent or intentional) committed by police officers into causes of action under federal law capable of redress in federal court. Likewise, a policy or custom of a municipality is actionable under section 1983 only if the policy itself is unconstitutional or in violation of law and the implementation of the policy or custom caused the plaintiff’s harm. King v. Ware, 522 F.Supp. 1206, 1210 (W.D.Pa.1981).

Plaintiff’s complaint, originally filed in state court, alleges that defendant police officer Michael Zukowski and three unidentified Philadelphia police officers stopped a vehicle driven by Anthony Cannella for running a red light. Plaintiffs decedent, William Baldi, was a passenger in Mr. Cannella’s car, along with plaintiff Charlotte Baldi and Kimberly Cannella. Mr. Cannella and his passengers were allegedly detained for twenty minutes and Mr. Cannella was issued a traffic citation for “disregarding red signal.” Plaintiff alleges that “William Baldi was in desperate need of emergency medical treatment and was enroute to the hospital” when the car was stopped. Defendant’police officers, however, allegedly failed to provide emergency escort or transportation, and detained Mr. Baldi and prevented him from obtaining necessary, emergency medical care. Mr. Baldi died the next day in the hospital. Plaintiff alleges that the death was a proximate result of the defendants’ wrongful conduct.

Plaintiff’s complaint sets forth three causes of action, two under state law and a third alleging a violation of plaintiff’s decedent’s rights under the fourteenth amendment. Defendant removed plaintiff’s complaint to this court pursuant to 28 U.S.C. § 1441(b). Before the court are defendants’ motions to dismiss the complaint and amended complaint and plaintiff’s motion to remand. The motions will be addressed in turn.

Plaintiff’s complaint and amended complaint with regard to section 1983 liability present difficult and perplexing issues. Unfortunately, neither of the briefs submitted by the parties was particularly helpful in isolating and addressing the novel issues presented in a case that clearly stretch to the “outer bounds” of section 1983 liability.

Section 1983 of Title 42, United States Code provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

In order to establish the liability of the four defendant police officers under section 1983, plaintiff must establish that her decedent was deprived of a constitutional or statutory right and that such deprivation was caused by the officers acting under color of law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970).

There is no doubt that the defendant police officers were acting under color of state law in this case. Liability under section 1983 attaches, however, only if the defendants deprived plaintiff’s decedent of a right, privilege or immunity secured by the Constitution or laws of the United States. Determining whether such a deprivation occurred under the facts alleged is the difficult question presented by this case.

Plaintiff contends that a number of cases “have affirmed an individual’s right to medical care under the Constitution.” Plaintiff’s contention is far too broad. There is no provision in our Constitution, as I read it, guaranteeing citizens the right to receive medical care. What courts have frequently held is that prisoners (not the broad category “individuals”) are entitled to “reasonable medical care, as needed.” Bowring v. Godwin, 551 F.2d 44, 47 (4th Cir.1977). The “[f]ailure or refusal to provide treatment, when indicating a ‘deliberate indifference to serious medical needs of prisoners’ results in ‘the unnecessary and wanton infliction of pain,’ ... proscribed by the Eighth Amendment.” Bowring, 551 F.2d at 47 (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976)).

Although Estelle was decided under the eighth amendment, which prevents cruel and unusual punishment to those convicted of crimes, courts have determined that the deliberate failure or refusal to provide necessary medical treatment to persons held in police custody also violates the due process clause of the fourteenth amendment. Bowring, 551 F.2d at 44.

The most troubling aspect of plaintiff’s claim under section 1983, and one not addressed by either side, is that every case cited by the parties involved claims by prisoners or individuals under arrest or who were in police custody. There is no allegation that plaintiff's decedent was a prisoner or under arrest or in custody. In order to fit her case within the facts of the cited cases, the stopping and detaining of the vehicle transporting plaintiff’s decedent to the hospital would have to amount to a de facto arrest. Plaintiff has alleged facts, which must be taken as true for purposes of the motion to dismiss, that if proved may be sufficient to establish that plaintiff’s decedent was in police custody or “under arrest.” If plaintiff can prove that Mr. Baldi was in police custody, and the police knew that he needed immediate medical attention, and the defendant officers failed or refused to provide treatment causing Mr. Baldi’s injury or death, then plaintiff may be able to recover'damages under section 1983. Plaintiff has alleged in substance such facts.

Plaintiff has set out a claim under section 1983 against the individual police officers sufficient to withstand a motion for judgment on the pleadings.

There is a second, and more important reason why this court cannot dismiss the section 1983 claim asserted against the defendant police officers. I am not convinced, under the facts of this case, that section 1983 liability ought to hinge solely on the determination whether an individual was under arrest or in police custody.

There is no general constitutional right to receive medical treatment; therefore, when the failure or refusal to provide medical treatment is found to be a deprivation of constitutional rights, it necessarily stems from the state’s control over the person (i.e., a prisoner or person otherwise confined in police custody). The state’s control over an individual’s freedom of movement is fundamental to its obligation to provide medical treatment, the intentional failure or refusal of which can be a deprivation of life or liberty without due process of law. See Bowring, 551 F.2d at 46-47 (quoting Spicer v. Williamson, 191 N.C. 487, 132 S.E. 291, 293 (1926) (“Constitutional doctrine has absorbed the common law view that ‘[i]t is but just that the public be required to care for the prisoner, who cannot, by reason of the deprivation of his liberty care for himself.’ ”). In sum, the state’s duty to provide medical treatment arises because the state has control over a person’s freedom and therefore assumes responsibility for the individual. Once the duty attaches, the individual under state control has a constitutional right to adequate medical care, the intentional deprivation of which is actionable through section 1983. When the state does not control an individual’s freedom there is no duty to provide medical treatment and, hence, the failure or refusal to provide care is not a deprivation of any guaranteed right, privilege or immunity.

That is not to say, however, that an individual who is free from custody cannot have his constitutional rights infringed. Absent state custody, an individual has no constitutional right to receive or to be provided with medical care by the state. There is also no general constitutional right, absent state custody, to have emergency transportation provided by the police to take a person to a place where he can receive medical treatment. Cf. Jackson v. City of Joliet, 715 F.2d 1200, 1203-04 (7th Cir.1983) (“[T]he Fourteenth Amendment ... sought to protect Americans from oppression by state government, not to secure them basic governmental services.”). The Constitution is sometimes said to be a charter of negative rather than positive liberties. Id. at 1205 (citing Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980); Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.1982)). A negative liberty is freedom from state interference or intrusion, in effect, “being let alone by the state.” Jackson, 715 F.2d at 1204. One of the negative liberties guaranteed by the Constitution is the right to be free from undue state interference or hindrance in promptly obtaining or attempting to obtain available medical treatment when it is needed. The life and/or liberty interests of the fourteenth amendment’s due process clause encompass the right promptly to seek available medical care without undue state interference or hindrance irrespective of the state’s custody or control over an individual.

Plaintiff’s complaint and amended complaint state a cause of action pursuant to section 1983 under either theory outlined above. If plaintiff can establish that the state exercised such a degree of control over the decedent that the positive duty to provide care and transportation attached, she may be able to recover for the state’s failure to act. Plaintiff may also be able to establish that the state intentionally interfered with the decedent’s right promptly to obtain available medical treatment when he needed it by deliberately preventing him from proceeding to the hospital.

In order to prevail against defendant, City of Philadelphia, the allegedly unconstitutional actions of the police officers must implement or execute a policy statement, ordinance, regulation or decision officially adopted and promulgated by the City’s officials or officers. Monell v. New York City Department of Social Services, 436 U.S. 658, 690, 98 S.Ct. 2018, 2035, 56 L.Ed.2d 611 (1978). The city may not be held liable merely on the basis of respondeat superior. Id. at 691, 98 S.Ct. at 2036.

Plaintiff’s original complaint plainly failed to state a cause of action against the city. Plaintiff has, ■ however, filed an amended complaint. The amended complaint alleges that the city has a policy or custom of limiting the transportation of unconscious and seriously ill persons to patrol wagons and of preventing use of an alternative source of transportation, which, in this case, delayed access to medical care.

There is no constitutional right for an individual not in custody to be provided with or to receive emergency transportation to a place where medical treatment may be obtained. A policy or custom prohibiting such transportation is therefore not unconstitutional. If, however, there is a duty to provide treatment, the failure to provide emergency transportation may be actionable under section 1983. If plaintiff can prove that the control over plaintiffs decedent exercised by the police was such that the duty to provide treatment arose, then the policy or custom of the city that is alleged in the amended complaint, if established, may have been implemented by the police officers in refusing to provide emergency transportation and liability against the city may be established.

Plaintiff may also be able to establish a cause of action against the city by proving that, after stopping the car that was transporting Mr. Baldi to the hospital, the police officers refused to allow the driver to transport plaintiffs decedent to the hospital, and would only permit transportation to be made by police wagon. In order to recover against the city for such a claim, plaintiff must establish that plaintiffs decedent was detained solely because the officers were waiting for a police wagon to arrive and transport Mr. Baldi to the hospital. If the vehicle was detained for any other reason, or for no apparent reason, the city’s alleged policy would not have caused the harm. In short, plaintiff has stated a cause of action against defendant city sufficient to withstand a motion for judgment on the pleadings.

Plaintiff has named. the City of Philadelphia Police Department as a party defendant. The Police Department will be dismissed because it does not have a separate corporate existence; suits against the department “shall be in the name of the City of Philadelphia.” Pa.Stat.Ann. tit. 53, § 16257 (Purdon 1957).

In conclusion, with regard to the motions to dismiss the complaint and amended complaint, the motions as to defendants Michael Zukowski, three unidentified Philadelphia Police Officers and the City of Philadelphia will be denied. The motion as to defendant Philadelphia Police Department will be granted.

Plaintiff has filed a motion to remand this action to the Court of Common Pleas of Philadelphia County asserting that it was improperly removed to this court. Plaintiff asserts that there is no separate and independent claim or cause of action that merits removal pursuant to 28 U.S.C. § 1441. Plaintiff’s position is without merit.

Plaintiff contends that “[u]nder [28 U.S.C. § 1343] granting original, but not exclusive, jurisdiction for civil rights claims, a plaintiff may choose between federal and state forums. If a plaintiff selects the state forum, the defendant cannot remove. See, Moore’s Federal Practice, Volume 1, Paragraph 0.60[7], page 637.” Plaintiff’s Brief in Support of Motion to Remand at 5-6. Plaintiff’s position is clearly and totally wrong. It would eviscerate the removal statute in cases involving civil rights claims, which are indisputably claims or rights arising under federal law. See 42 U.S.C. § 1983; 28 U.S.C. § 1441(b). The full context of plaintiff’s reference to Professor Moore is self-explanatory:

On the other hand in some situations, a plaintiff may have a choice between federal and state forums; and if he chooses the state forum the defendant cannot remove. A good example is an action brought under the Federal Employers’ Liability Act. There are others.

1A J. Moore, J. Lucas, H. Fink, D. Weckstein & J. Wicker, Moore’s Federal Practice §§ 0.60[7] (2d ed. 1976). Neither Professor Moore nor anyone else to my knowledge has ever opined that a civil rights action was one of the few situations where a plaintiff’s choice of state court prevails. In fact, 28 U.S.C. § 1441(b) provides to the contrary.

Plaintiff’s final and claimed, “most significant” contention in support of remand is that “the defendants have not plead, have not shown, and cannot show that the civil rights claim in plaintiff’s complaint is a ‘separate and independent’ claim or cause of action.” Plaintiff’s Brief in Support of Remand at 6. This contention by plaintiff is so totally devoid of merit that it warrants only brief treatment. Defendants’ right to removal in this case stems from 28 U.S.C. § 1441(b) because it involves a civil action founded on a claim or right arising under the Constitution and laws of the United States over which this court has original jurisdiction. Plaintiffs third cause of action was for violation of the decedent’s constitutional rights under 42 U.S.C. § 1983. Unquestionably, this court has original jurisdiction over such a claim and removal was proper. Section 1441(c), which contains the “separate and independent” language, merely allows this court, in its discretion, to decide whether to hear the entire action that was filed in state court or only that part of it over which there is federal jurisdiction. There is no doubt that plaintiff’s section 1983 claim is “a separate and independent claim or cause of action” that would be removable if sued upon alone and has been joined with claims that are otherwise non-removable. I have therefore exercised my discretion to hear the entire case pursuant to 28 U.S.C. § 1441(c). It would be in the interest of none of the parties to hear only the constitutional claims in federal court and the state claims in state court. The federal claims cannot be remanded. Therefore the entire case should remain in this court where it has been properly removed.

      . Defendants’ motion to dismiss, inter alia, asserts that plaintiff’s complaints fail to state a cause of action under 42 U.S.C. § 1983. Section 1983 is the only basis for federal jurisdiction (and was the ground for removal pursuant to 28 U.S.C. § 1441(b)). Logically, therefore, the motion to dismiss ought to be decided before the motion to remand. If plaintiff’s complaints fail to state a cause of action under section 1983, the action would be' remanded to state court for disposition of the state causes of action.

      . The question whether an individual is "under arrest” or in police "custody” involves difficult legal and factual determinations. The issue frequently arises in criminal law in the context whether a person was in "custody” such that his Miranda rights were required to be read to him. See Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966) ("By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”) See also Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969).

      . Refusal or failure to provide medical care and/or transportation to a medical facility can be a deprivation of a protected right only if there is a duty to provide care. The duty depends upon the degree of control of the state over the individual. The difficult factual and legal issue is to determine at what point the control is such as to impose an affirmative duty and the extent of that duty. Problem cases arise where there may be a temporary stop or detention not resulting in an arrest. Although fourth amendment cases may be helpful in analyzing this case (see footnote 2 for example), reliance on them is questionable because of different underlying interests. Factually, the nature and length of the detention, the physical ability of Mr. Baldi to leave, the police officer’s actions, and the subjective state of mind of Mr. Baldi will be some of the relevant inquiries.


author: DON J. YOUNG, District Judge.

text:
    David J. WARD, Petitioner, v. UNITED STATES of America, Respondent.
    No. CR 83-54.
    United States District Court, N.D. Ohio, W.D.
    May 9, 1985.

      . Fred McDonald, Asst. U.S. Atty., Toledo, Ohio, for petitioner.
    Michael P. Kelbley, Tiffin, Ohio, for respondent.
   MEMORANDUM AND ORDER

DON J. YOUNG, District Judge.

On September 8, 1983 the defendant, named in the caption as petitioner, was sentenced to the concurrent terms of imprisonment for five (5) years, with parole eligibility at any time under the provisions of Title 18 U.S.C. § 4205(b)(2), on two counts of a three count information charging him with distribution of cocaine.

He has filed what he denominates as a “motion to produce pre-sentence report,” seeking to be furnished forthwith with a certified and true copy of the presentence report in his case, including all attached exhibits and documents used in said report.

He states that his intent is “to move for the expungement of certain incorrect statements and facts contained with [in] said report.” He cites as authority for his position Fender v. United States Parole Commission, N.D.Ca., 9-23-83.

The citation is not a meaningful one, but if it were, this Court has repeatedly stated that it does not regard the rulings of other district judges as having any controlling force as precedents. This Court is sometimes persuaded by the reasoning of fellow district judges, but in this area, in which this Court has had well over thirty years of experience and study, it is not likely that the opinion of any other district judge would have much influence on his views.

Rule 32 of the Federal Rules of Criminal Procedure gives the defendant in a criminal case some access to his presentence investigation report at certain times and places when it would be meaningful to do so. It, however, does not give a defendant any right whatsoever to have a copy of the report, much less copies of any documents or materials used in preparing the report. It is difficult to imagine any court granting what the defendant requests.

As is routinely done in this Court prior to sentencing, defendant and his counsel were provided the opportunity to examine the presentence investigation report in order to determine the accuracy of the information contained therein. If the report included any incorrect facts or statements, defendant had ample opportunity to raise them before sentence was pronounced.

When parole hearings are scheduled for the defendant, he will again have access to the report, see 18 U.S.C. §§ 4207, 4208(b), and he can at that time produce any evidence he may have as to any inaccuracies in the report. However, the law does not look favorably on fishing expeditions. Neither is there any sound reason in law why the defendant should have a copy of the presentence report so that he can have ample time and opportunity to gather or fabricate evidence to question it.

If the presentence investigation report really does contain any erroneous information that is prejudicial to the defendant, he must know what it is, and how to demonstrate the errors. He does not need a copy of the report to make his case against it.

The basic purpose of presentence investigation reports would be defeated if they are regarded simply as a part of the proof in the case, and thus subject to study and refutation. The need for such a report cannot arise until the guilt of the person who is the subject of the report has been established. The object of the report is to bring out matters which are, and should be, totally irrelevant to the fact of guilt or innocence. Except under a system of fixed, mandatory sentencing, things irrelevant to guilt or innocence are relevant to the establishment of a condign punishment. In that regard, a defendant has from time immemorial had the right of allocution. Every defendant has the right to prepare his own presentence investigation report, and to tender it to the Court to be considered before sentencé is pronounced. He has a similar right to lay matters relevant to sentence before the Parole Commission. If he knows or suspects that the report prepared by the Court’s probation staff is inaccurate, he had better prepare his own report. To do that, he really doesn’t need even to have access to the presentence investigation report at all. The form of such reports is highly standardized. Theoretically, at least, no matter who prepares the report, the contents should be the same. If, therefore, both a defendant and a court staff prepared separate presentence reports, any consequential differences between them would stand out very glaringly.

Neither in the law nor in reason is there any right of a defendant to have what this defendant-petitioner seeks. His motion must be overruled.

THEREFORE, for the above stated reasons, good cause therefor appearing, it is

ORDERED that the motion of petitioner to produce the presentence report should be, and it hereby is, OVERRULED.

IT IS SO ORDERED.

      . Rule 32(c)(3)(A) directs that:
      [a]t a reasonable time before imposing sentence the court shall permit the defendant and his counsel to read the report of the presentence investigation exclusive of any recommendations as to sentence, but not to the extent that in the opinion of the court the report contains diagnostic opinions which, if disclosed, might seriously disrupt a program of rehabilitation; or sources of information obtained upon a promise of confidentiality; or any other information which, if disclosed, might result in harm, physical or otherwise, to the defendant or other persons. The court shall afford the defendant and his counsel an opportunity to comment on the report and, in the discretion of the court, to introduce testimony or other information relating to any alleged factual inaccuracy contained in it.

      . While the Court in its discretion may allow the defendant to retain a copy of his presentence report, the general rule is clear and unequivocal that:
      [a]ny copies of the presentence investigation report made available to the defendant and his counsel and the attorney for the government shall be returned to the probation officer immediately following the imposition of sentence____
      Fed.R.Crim.P. 32(c)(3)(E).