author: CALDWELL, District Judge.

text:
    KENTUCKY WEST VIRGINIA GAS COMPANY, et al., Plaintiffs, v. PENNSYLVANIA PUBLIC UTILITY COMMISSION, et al., Defendants.
    Civ. A. No. 85-1514.
    United States District Court, M.D. Pennsylvania.
    Nov. 6, 1985.
    Thomas & Thomas, Harrisburg, Pa., William A. Mogel, Ross, Marsh & Foster, Washington, D.C., for plaintiffs.

      Eric N. Wise, Arlington, Va., for American Gas Assoc.
    Joanne Leveque, Washington, D.C., for F.E.R.C.
    Charles Hoffman, Chief Counsel, Pa. PUC, Harrisburg, Pa., Alphonso Arnold, Jr., Harrisburg, Pa., for Pennsylvania Public Utility Com’n.
    Michael Finio, Eugene Waye, Harrisburg, Pa., for Atty. General (Intervener).
    Philip McClelland, Harrisburg, Pa., for Consumer Advocate (Intervener).
   MEMORANDUM

CALDWELL, District Judge.

I. Introduction.

Plaintiffs, Kentucky West Virginia Gas Company (Kentucky West) and Equitable Resources, Inc. (Equitable), have filed a complaint for preliminary and permanent injunction and a declaratory judgment against defendants, the Pennsylvania Public Utility Commission (PUC) and its individual members, Linda C. Taliaferro, Frank Fischl and Bill Shane. The Federal Energy Regulatory Commission (FERC) has also been named as a defendant. Plaintiffs claim that a PUC order directed at Equitable, dated August 29, 1985, and certain sections of Pennsylvania Act No. 1984-74, pursuant to which the order was issued, violate the commerce clause, the supremacy clause, and the first, fifth and fourteenth amendments. Plaintiffs also claim that the Act No. 1984-74 and the agency order violate certain sections of the Natural Gas Act (NGA), 15 U.S.C. § 717 et seq. and the Natural Gas Policy Act (NGPA), 15 U.S.C. § 3301 et seq.

Motions to intervene were filed by David M. Barasch, Consumer Advocate for the Commonwealth of Pennsylvania, the Office of the Attorney General of Pennsylvania and the American Gas Association (AGA), a national trade association representing the interests of gas companies which distribute and transport natural gas. Barasch and the Attorney General were permitted to intervene as defendants. The AGA was allowed into the suit as an amicus curiae.

On October 30, 1985, a hearing on the requested injunctive and declaratory relief was held and the parties have briefed and argued their positions. ^Plaintiffs’ request is therefore ripe for disposition.

II. Background.

Plaintiff, Equitable, produces, purchases, transports, stores, distributes and sells natural gas in both interstate and intrastate commerce. Subject to the authority of the PUC it retails gas to approximately 240,000 customers in southwestern Pennsylvania. Equitable purchases approximately 80% of its gas from three interstate suppliers. One of these is plaintiff, Kentucky West, with which Equitable has a long term contract for purchasing gas. Kentucky West is a wholly owned subsidiary of Equitable Resources, Inc. and Equitable is a division of that company. Kentucky West’s wholesale rates for natural gas are regulated by FERC which approved the rates charged to Equitable.

On March 1, 1985, Equitable sought approval of new rates for its retail customers by filing a computation of Annual Purchased Gas Adjustment pursuant to 66 Pa. C.S. § 1307(f). The PUC investigated the justness and reasonableness of the proposed rates under authority conferred upon it by Act No. 1984-74. See 66 Pa.C.S. § 1307(f)(2). Fourteen days of hearings were held. The PUC Order of August 29, 1985 followed in which the agency disallowed the requested rates because it found that Equitable had not pursued a least cost fuel procurement policy, consistent with its obligation to provide safe, adequate and reliable service. Specifically, the PUC found that Equitable had failed to use its own production and that of other suppliers to keep costs down. Rather, it had purchased higher priced gas from Kentucky West. Equitable filed a Petition for Review of the order in the Pennsylvania Commonwealth Court on September 27, 1985. This lawsuit was filed on October 11, 1985.

III. Discussion.

Briefly, plaintiffs mainly argue on the merits that Pennsylvania’s attempt to require Equitable to follow a least cost procurement policy intrudes upon the FERC’s authority to set Kentucky West’s interstate rate for gas. In their view, Pennsylvania must accept the FERC approved rate in considering Equitable’s intrastate rate. To do otherwise violates the commerce and supremacy clauses.

Initially, however, we will consider two defense arguments which would, if successful, require us to dismiss this action without reaching the merits. The PUC contends that, pursuant to the Johnson Act, 28 U.S.C. § 1342, we do not have jurisdiction over this case. The agency and defendant Barasch, further contend that, in any event, we should exercise our discretion and abstain from adjudicating plaintiffs’ claims. Both defendants rely upon Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943) to support the latter argument and the PUC further argues that abstention under Railroad Commission of Texas v. Pullman, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941) is appropriate. Since the Johnson Act may, as the PUC contends, preclude jurisdiction over this action, we turn to that issue first.

The Johnson Act provides as follows:

The district courts shall not enjoin, suspend or restrain the operation of, or compliance with, any order affecting rates chargeable by a public utility and made by a State administrative agency or a ratemaking body of a State political subdivision, where:
(1) Jurisdiction is based solely on diversity of citizenship or repugnance of the order to the Federal Constitution; and,
(2) The order does not interfere with interstate commerce; and,
(3) The order has been made after reasonable notice and hearing; and,
(4) A plain, speedy and efficient remedy may be had in the courts of such State.

All of the conditions of the Act must be satisfied to support a finding of no jurisdiction. Zucker v. Bell Telephone Company, 373 F.Supp. 748 (E.D.Pa.1974), aff'd mem. 510 F.2d 971 (3d Cir.1975), cert. denied, 422 U.S. 1027, 95 S.Ct. 2621, 45 L.Ed.2d 684 (1975). In the instant case, the first condition has not been met because jurisdiction is not based solely upon repugnance of the order to the federal constitution. Plaintiffs also claim that Act No. 1984-74 violates the commerce and supremacy clauses. See International Brotherhood of Electrical Workers, Local Union No. 1245 v. Public Service Commission, 614 F.2d 206 (9th Cir.1980). We also cannot conclude that the order does not interfere with interstate commerce. Although defendants argue that only intrastate commerce is involved, for the purposes of the motions to dismiss, we believe that we must accept plaintiffs’ contention concerning the affect upon interstate commerce. See Aluminum Company of America v. Utilities Commission, 713 F.2d 1024 (4th Cir.1983), cert. denied, 465 U.S. 1052, 104 S.Ct. 1326, 79 L.Ed.2d 722 (1984). Accordingly, the Johnson Act does not bar jurisdiction over this case.

Turning to the abstention issue, we agree with the PUC and Barasch that, although we have jurisdiction over this case, we should abstain from adjudicating it. We believe that, as urged by the defendants, Burford abstention applies here, and also an abstention doctrine not raised by them, Younger abstention under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).

In Pike County Light and Power Co. v. Pennsylvania Public Utility Commission, No. 82-1608 (M.D.Pa. Jan. 13, 1983), we applied Burford to a factual situation analogous to the case at bar. In Pike County, plaintiff, an electrical power utility, contested a PUC order disallowing a portion of its rate request. The disallowance was based, in part, on the PUC’s determination that the utility’s purchased power expenses, already FERC approved, were unreasonable. Plaintiff had appealed the order in the state courts.

We abstained based upon the concern of the Court in Burford for respecting the rightful independence of state governments and to further the harmonious relationship between state and federal authority. We also quoted from the court’s discussion of Burford in Colorado River Water Conservation District v. United States, 424 U.S. 800, 814, 96 S.Ct. 1236, 1244-45, 47 L.Ed.2d 483 (1976) (emphasis in Pike County):

Abstension is ... appropriate where there have been presented difficult questions of state law bearing on policy problems of substantial import whose importance transcends the result in the case then at bar. ... In some cases, however, the state question itself need not be determinative of state policy. It is enough that exercise, of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.

These considerations are equally compelling in the case at bar. The courts, while recognizing the federal prerogative to regulate the interstate aspects of utilities’ sales have also respected the great interest the states have in regulating retail utility rates within their boundaries. See Arkansas Electric Cooperative Corp. v. Arkansas Public Service Comm’n, 461 U.S. 375, 103 S.Ct. 1905, 76 L.Ed.2d 1 (1983). We conclude that abstention under Burford is appropriate here. See also Aluminum Company of America v. Utilities Commission, supra; Aims Enterprises, Inc. v. Muir, 609 F.Supp. 257 (M.D.Pa.1985).

Younger v. Harris, supra, also indicates that we should abstain. Younger dealt with the propriety of a district court’s interference with a state criminal proceeding but it has been applied to noncriminal state proceedings. As stated by the court in Middlesex County Ethics Committee v. Garden State Bar Ass ’n, 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116, 124 (brackets added):

The policies underlying Younger are fully applicable to noncriminal judicial proceedings when important state interests are involved, [citations omitted]. The importance of the state interest may be demonstrated by the fact that the noncriminal proceedings bear a close relationship to proceedings criminal in nature .... Proceedings necessary for the vindication of important state policies or for the functioning of the state judicial system also evidence the state’s substantial interest in the litigation, [citations omitted]. Where vital state interests are involved, a federal court should abstain “unless state law clearly bars the interposition of the constitutional claims.” Moore [v. Sims, 442 U.S. 415, 426, 99 S.Ct. 2371, 2379, 60 L.Ed.2d 994, 1005 (1979) ]. “[T]he ... pertinent inquiry is whether the state proceedings afford an adequate opportunity to raise the constitutional claims_” Id., at 430, 99 S.Ct. at 2371, 60 L.Ed.2d 994.

The PUC investigation here did not implicate the state judicial system but Equitable has now involved the state judiciary by filing its petition for review in the Commonwealth Court. We believe therefore that the threefold question which arose in Middlesex may be asked here as well. It may be paraphrased as follows: first, do the proceedings in the Commonwealth Court constitute an ongoing state judicial proceeding; second, do the proceedings implicate an important state interest; third, is there an adequate opportunity in the state proceedings to raise constitutional challenges. See Aims Enterprises, Inc., supra.

Obviously, the first part of the question may be answered affirmatively. Also, we have already concluded that Pennsylvania has an important state interest in regulating retail gas prices. Finally, plaintiff Equitable has an adequate opportunity to raise federal constitutional challenges in the state proceedings. See Pa.R.App.P. 1501 et seq. In fact, it has already done so in its petition for review in the Commonwealth Court. Therefore, Younger indicates we should abstain.

We will issue an appropriate order.

      . The commerce clause authorizes Congress to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const, art. I, § 8, cl.3.

      . The supremacy clause provides, in relevant part, as follows: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land,_” U.S. Const, art. VI, cl. 2.

      .U.S. Const, amend. I, V, and XIV, § 1.

      . 66 Pa.C.S. § 1318, a part of No. 1984-74, provides, in pertinent part, as follows:
      (a) General rule. — In establishing just and reasonable rates for those natural gas distribution utilities with gross intrastate operating revenues in excess of $40,000,000 under section 1307(f) (relating to sliding scale of rates; adjustments) or 1308(d) (relating to voluntary changes in rates) or any other rate proceeding, the commission shall consider the materials provided by the utilities pursuant to section 1317 (relating to regulation of natural gas costs). No rates for a natural gas distribution utility shall be deemed just and reasonable unless the commission finds that the utility is pursuing a least cost fuel procurement policy, consistent with the utility’s obligation to provide safe, adequate and reliable service to its customers. In making such a determination, the commission shall be required to make specific findings which shall include, but need not be limited to, findings that:
      (1) The utility has fully and vigorously represented the interests of its ratepayers in proceedings before the Federal Energy Regulatory Commission.
      (2) The utility has taken all prudent steps necessary to negotiate favorable gas supply contracts and to relieve the utility from terms in existing contracts with its gas suppliers which are or may be adverse to the interests of the utility’s ratepayers.
      (3) The utility has taken all prudent steps necessary to obtain lower cost gas supplies on both short-term and long-term bases both within and outside the Commonwealth, including the use of gas transportation arrangements with pipelines and other distribution companies.
      (4)The utility has not withheld from the market or caused to be withheld from the market any gas supplies which should have been utilized as part of a least cost fuel procurement policy.
      (b) Limitation on gas purchased from affiliates. — In any instance in which a gas distribution utility purchases all or part of its gas supplies from an affiliated interest, as that term is defined in section 2101 (relating to definition of affiliated interest), the commission, in addition to the determinations and findings set forth in subsection (a), shall be required to make specific findings with regard to the justness and reasonableness of all such purchases. Such findings shall include, but not be limited to findings:
      (1) That the utility has fully and vigorously attempted to obtain less costly gas supplies on both short-term and long-term bases from no-naffiliated interests.
      (2) That each contract for the purchase of gas from its affiliated interest is consistent with a least cost fuel procurement policy.
      (3) That neither the utility nor its affiliated interest has withheld from the market any gas supplies which should have been utilized as part of a least cost fuel procurement policy.

      . In any event, as noted previously, important state policies dealing with the setting of retail natural gas rates are implicated here.


source: Caselaw Access Project

author: ALLEN SHARP, Chief Judge.

license: Public Domain

text:
    Alexander GAUS, Jr., Plaintiff, v. COUNTY OF WELLS, INDIANA; Board of Commissioners of Wells County; Tom Frantz, Commissioner; John Studebaker, Commissioner; William Thomas, Commissioner, Defendants. Alexander GAUS, Jr., Plaintiff, v. BLUFFTON BANNER NEWSPAPER; Jim Barberri, Editor; The Farmer (Magazine); the Webb Company: M.J. Nelson, Investigative Reporter, Defendants.
    Nos. F 84-218, S 83-443.
    United States District Court, N.D. Indiana, South Bend Division.
    Nov. 6, 1985.

      Alexander Gaus, Jr., pro se.
    David A. Arthur, Deputy Atty. Gen., Indianapolis, Ind., Thomas C. Ewing, Fort Wayne, Ind., Jon M. Brown, Bluffton, Ind., John T. Mulvihill, South Bend, Ind., Scott Goldsmith, Minneapolis, Minn., for defendants.
   MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

On September 27, 1983, the plaintiff filed his complaint in S 83-443. That complaint appeared to allege claims for libel, slander and defamation of character under Indiana law and were based on alleged false and misleading publications made by the defendants. The complaint also alleged that the defendants violated plaintiff’s rights under the Sixth and Fourteenth Amendments of the Constitution of the United States. A pretrial conference was held in S 83-443 on January 3, 1984. The plaintiff attended the pretrial conference and testified under oath. Based on the record and testimony of plaintiff, the court determined that the claims asserted by plaintiff in that case were based on defamation of character under Indiana law and were not brought under 42 U.S.C. § 1983. Such a determination was compelled by the fact that the defendants were not acting under color of state law as required by § 1983 and that defamation of character cannot form the basis of a claim under 42 U.S.C. § 1983. See Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1165, 47 L.Ed.2d 405 (1976); Bone v. City of Lafayette, 763 F.2d 295 (7th Cir.1985). At the pretrial conference, defendant Walter Aeschliman was dismissed.

On August 31, 1984, S 83-443 was consolidated with F 84-218. The complaint in F 84-218 alleged claims under 42 U.S.C. § 1983 based on alleged actions by the defendants in connection with the prosecution of the plaintiff in Wells County, Indiana. The defendants filed Motions for Summary Judgment on various grounds. The plaintiff has filed responses thereto. On June 10, 1985, this court preliminarily dealt with the statute of limitations issues in these consolidated cases but found that the record needed to be more fully developed, particularly with respect to the effect of plaintiffs imprisonment on the application of the statute of limitations in these cases. The parties have complied with the court’s request. Because of the different claims being asserted in the consolidated cases, each of the cases will be dealt with separately.

A. Alexander Gaus, Jr, v. Wells County et al, F 84-218

In this case, plaintiff alleged a cause of action under 42 U.S.C. § 1983 against the defendants for their action or inaction with respect to the arrest, prosecution and conviction of plaintiff in Wells County, Indiana. The plaintiffs statement of his claim as set forth in his complaint is as follows:

Defendants conspired together to injure Plaintiff in his person and property by false accusation, contrary to law, subsequently prosecuting Plaintiff wrongfully, having knowledge that wrongful acts were being committed. Defendant Boonstra minipulated said prosecution, wrongfully and malicious, to further (his) ambitions politically, causing publications in the news media and appearing in the news media propogating false statements, all contrary to Plaintiffs guarantee pursuant to the First and Fourteenth Amendment. Defendants deprived Plaintiff of federal right, acting under color of state and/or county law. Prosecution of Plaintiff was conducted with intent of denying Plaintiff equal protection (and) otherwise subjecting Plaintiff to denial of constitutional rights. Defendants had no legal jurisdiction over Plaintiff and had no legal right to prosecute Plaintiff pursuant to the statutes of the State of Indiana. Defendants knowingly violated Plaintiffs rights to fair trial, proper venue, conflict of interest relating to witnesses, attorneys; falsifying documents, threatening legitimate witnesses in behalf of Plaintiff with harassment and jail (if) said witness risked the appearance in Wells County in behalf of the Plaintiff herein. Defendant Boonstra used Plaintiff as “pawn” — and illegal prosecution— as publicity vehicle to seek nomination, and election, to the Indiana Legislature. Boonstra misrepresented facts and violated Plaintiffs federal rights in blatant exercise to “scapegoat” Plaintiff politically, widespread in the media — appearing in television, contacting media nationally (all) in effort to attain political success. The County of Wells, as a political subdivision and (as) individuals were always aware of the complete misbehavior, however, refrained from correcting the violations against the Plaintiff. Defendants (in concert) conspired to injure Plaintiff in order to cover apparent questionable practices in Wells County unrelated to Plaintiff. Plaintiff has been incarcerated without cause, subjected to personal abuse, not having committed a crime. Boonstra was ultimately thwarted in his political bid and resigned as prosecutor from the County of Wells.

The defendant, Michael E. Boonstra, was dismissed on October 31, 1984 on the basis of immunity. Accordingly, the court need only focus on the allegations concerning the remaining defendants. Reading these allegations in the light most favorable to plaintiff reveals that the complained of actions all stemmed from the arrest, prosecution and conviction of plaintiff in Wells County, Indiana.

The following undisputed facts appear in the record of this case. Alexander Gaus, Jr. (Gaus) was indicted by a grand jury on 18 counts of fraud in December, 1978. On December 28, 1978, the indictment was filed and a warrant for his arrest was issued the same day. On March 27, 1979, Gaus surrendered to the Sheriff of Wells County and on the same day was released from custody on bond. Alexander Gaus, Jr. was convicted by a jury in the Wells Circuit Court on January 6, 1982 and was sentenced and committed to the Indiana Department of Correction on March 1, 1982. The complaint in this case was filed on July 18, 1984.

In Wilson v. Garcia, — U.S. -, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), the Supreme Court of the United States held that all claims under 42 U.S.C. § 1983 were best characterized as “personal injury actions” and the applicable statute of limitations was to be determined pursuant to state law. Id. In Indiana, the statute of limitations governing “injuries to person or character” is found at I.C. § 34-1-2-2. That statute provides that an action for personal injury must be commenced within two years after the cause of action accrues. I.C. § 34-1-2-2(l). The issue therefore is when does a cause of action accrue under Indiana law.

Although the Supreme Court of Indiana has indicated that a discovery rule is applicable in some personal injury tort cases, see Barnes v. A.H. Robins Co., Inc., 476 N.E.2d 84 (Ind.1985), the general rule that a cause of action accrues when the resultant damage of a negligent act is ascertainable or by due diligence could be ascertained, is still applicable to the majority of personal injury tort cases, including this case. See, id. at 86; Tolen v. A.H. Robins Co., Inc., 570 F.Supp. 1146 (N.D.Ind.1983). Furthermore, there are no facts in this record that would indicate that the statute of limitations was tolled in this case. Prior to 1982, any person under a legal disability when his cause of action accrued could bring his action within two years after the disability was removed and the term “under legal disabilities” included persons imprisoned in the state’s prisons. I.C. § 34-1-2-5; I.C. § 34-1-67-1. However, effective January 1, 1982, imprisonment was eliminated from the description of legal disability. Plaintiff was not imprisoned until March of 1982 which was after the statute had been amended and cannot rely on imprisonment as grounds for tolling the statute of limitations in this case. Cf. Bailey v. Faulkner, 765 F.2d 102 (7th Cir.1985).

Applying the foregoing analysis to the facts of this case clearly indicates that plaintiffs claims are barred by the applicable statute of limitations. At the very latest, plaintiff knew or should have known of the injuries attending the alleged violations of his constitutional rights with respect to his arrest, prosecution and conviction on January 6, 1982 when the Wells County jury returned the guilty verdict. Plaintiff knew who was prosecuting this case, having appeared in court on more than one occasion with the Wells County prosecutor. Plaintiff did not file his complaint in F 84-218 until July 18, 1984, more than two and one-half years later. Accordingly, defendants’ Motion for Summary Judgment on the grounds that this case is barred by the applicable statute of limitations is GRANTED. Plaintiff’s complaint is hereby DISMISSED. Costs shall be assessed against the plaintiff.

B. Alexander Gaus, Jr. v. Bluffton Banner Newspaper et al, S 83-443

1. Statute of Limitations

In this case, the plaintiff alleged a cause of action against the defendants for defamation of character based on alleged false and misleading publications made by defendants from November of 1978 through and including 1983. The statute of limitations applicable to this case is I.C. § 34-1-2-2(1), which provides that an action for injury to character must be brought within two years after the cause of action accrues. Further, the same analysis with respect to tolling as discussed above would apply to this case and requires the court to find that the plaintiff is not entitled to have the statute tolled in this case. The complaint in this case was filed on September 27, 1983. Accordingly, all of plaintiff’s claims based on alleged defamatory articles published prior to September 27,1981 are barred by the statute of limitations.

2. Personal Jurisdiction

On April 2, 1984, defendants, The Webb Company and M.J. Nelson filed a Motion for Summary Judgment on personal jurisdiction grounds as well as the statute of limitations grounds discussed above. The plaintiff received the notice required by Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982) and filed his response. In their motion, the Webb Company and M.J. Nelson maintain that they did not have sufficient minimum contacts with the State of Indiana upon which to base the exercise of personal jurisdiction. Further, M.J. Nelson asserts that she has never been served with a Summons or Complaint in this ease.

The exercise of personal jurisdiction over M.J. Nelson and The Webb Company, if at all, must be based on the provisions of Trial Rule 4.4 of the Indiana Rules of Procedure. Fed.R.Civ.Proc. 4(e); Madison Consulting Group v. State of South Carolina, 752 F.2d 1193, 1195 (7th Cir.1985). Trial Rule 4.4 provides in pertinent part as follows:

TRIAL RULE 4.4 SERVICE UPON PERSONS IN ACTIONS FOR ACTS DONE IN THIS STATE OR HAVING AN EFFECT IN THIS STATE
(A) Acts Serving as a Basis for Jurisdiction. Any person or organization that is a nonresident of this state, ... submits to the jurisdiction of the courts of this state as to any action arising from the following acts committed by him or his agent:
(1) doing any business in this state;
(2) causing personal injury or property damage by an act or omission done within this state;
(3) causing personal injury or property damage in this state by an occurrence, act or omission done outside this state if he regularly does or solicits business or engages in any other persistent course of conduct, or derives substantial revenue or benefit from goods, materials, or services used, consumed, or rendered in this state; ....

This rule was intended to extend the personal jurisdiction of the courts of Indiana to the limits permitted under the due process clause of the Fourteenth Amendment of the Constitution of the United States. Oddi v. Mariner-Denver, Inc., 461 F.Supp. 306, 308 (S.D.Ind.1978). Accordingly, if the Constitution permits the exercise of personal jurisdiction over M.J. Nelson, the Indiana Long-Arm statute would authorize such exercise.

In Madison Consulting Group v. State of South Carolina, 752 F.2d 1193 (7th Cir.1985), the Seventh Circuit Court of Appeals discussed at length the various opinions of the Supreme Court of the United States and the Seventh Circuit on the issue of personal jurisdiction under the Fourteenth Amendment and this court need not repeat that discussion here. Further, although the discussion in that case centered around a case*involving a business transaction, the underlying principles are equally applicable in this case. In order to assert personal jurisdiction over a nonresident defendant, that defendant must have sufficient minimum contacts with the forum state such that the exercise of personal jurisdiction does not offend traditional notions of fair play and substantial justice. Id. at 1198-99. In determining whether there are sufficient minimum contacts, the court must focus on the relationship between the defendant, the forum and the litigation and each defendant’s contacts must be assessed individually. Id.; Rush v. Savchuk, 444 U.S. 320, 332, 100 S.Ct. 571, 579, 62 L.Ed.2d 516 (1980).

Further, in evaluating the minimum contacts in this case, the court must be guided by the companion opinions of the Supreme Court of the United States in Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984) and Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984). In Keeton, the plaintiff Kathy Keeton filed a complaint in the United States District Court for the District of New Hampshire alleging that she had been libeled in five separate issues of defendant’s, Hustler Magazine, Inc., (Hustler) magazine, Hustler was an Ohio corporation with its principal place of business in California. Hustler’s contacts with the State of New Hampshire consisted of the sale of some 10 to 15,000 copies of Hustler magazine in that state each month. .The Supreme Court of the United States found that defendant’s circulation of magazines in the forum state was sufficient to support an assertion of jurisdiction in a libel action based on the contents of the magazine, even if “the single publication rule” was applied. 104 S.Ct. at 1478. Based on the district court’s finding that “[t]he general course of conduct in circulating magazines throughout the state was purposefully directed at New Hampshire, and inevitably affected persons in the state,” the Supreme Court found that “[s]uch regular monthly sales of thousands of magazines cannot by any stretch of the imagination be characterized as random, isolated, or fortuitous.” Id. at 1478. The Supreme Court also found the fact that the plaintiff was seeking to recover damages suffered in all the states in one suit to be relevant to the determination of whether it was “fair” to compel the defendants to defend the multi-state lawsuit in New Hampshire seeking nationwide damages for all copies of the five issues. Further, in discussing the “fairness” of haling defendants into the forum state court, the Supreme Court noted that it depends to some extent on whether defendants’ activities relating to the forum state are such that they give the forum state a legitimate interest in holding the defendants answerable on a claim related to those activities. Id. at 1479. Thus, because the plaintiff was suing, at least in part, for damages allegedly sustained in New Hampshire and New Hampshire had a significant interest in redressing injuries that actually occurred in New Hampshire, the Supreme Court found that New Hampshire could properly exercise personal jurisdiction over Hustler.

In Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984), the Supreme Court of the United States focused on the “effects” of defendants’ conduct in determining whether the forum court could properly exercise personal jurisdiction over nonresident defendants. The plaintiff, Shirley Jones, lived and worked in California. Two of the defendants, Iain Calder and John South, were residents of Florida. John South, a reporter employed by the National Enquirer, Inc. (Enquirer) wrote a first draft of an article about Shirley Jones, He did most of the research for the article in Florida, relying on phone calls to California for the information contained in the article. Iain Calder approved the subject matter of the article and edited it into final form. Said article was published in the October 9, 1979 issue of the Enquirer. Approximately 600,000 copies of the Enquirer out of total sales of five million copies were sold in California, nearly twice as many as any other state. Shirley Jones filed suit in a California state court alleging claims for libel, invasion of privacy and intentional infliction of emotional harm. In holding that personal jurisdiction could properly be exercised in California over the Florida residents, the Court noted that the alleged libelous story concerned the California activities of a California resident whose career was centered in California. The Court further noted that the article was drawn from California sources and that the brunt of the harm occurred in California. Accordingly, the Court found that the defendants’ intentional, and allegedly tortious, conduct was expressly aimed at California and that the defendants knew that the brunt of the injury would be felt in the state where Shirley Jones lived and worked and in which the Enquirer had its largest circulation. Thus, the Court concluded that under such circumstances the defendants must reasonably anticipate being haled into court to answer the suit in the state in which the wrongdoing was intentionally directed. Id. at 1487.

With this background in mind, the court now turns to the facts in this case. The record in this case reveals that M.J. Nelson is a Minnesota resident. She has passed through Indiana while traveling to other states on a few occasions unrelated to this case. Nelson is an independent investigative reporter and researched and wrote the articles that were published by The Farmer that are the subject of this case. Lon Tonneson, an associate editor for The Farmer assisted M.J. Nelson on a number of the subject articles. M.J. Nelson made less than ten phone calls to the Chief Investigator of the Indiana Securities Commission and one telephone call to the editor of an Indiana newspaper with respect to the articles in question. In response to the telephone call to the editor, M.J. Nelson received previously published articles about the plaintiff. The articles that form the basis of this lawsuit were prepared from personal and telephone interviews conducted by Nelson and Tonneson. Most of the information contained in said articles was obtained through voluntary statements given by individuals who were not residents of Indiana. The information concerned finder’s fee loan practices, the primary subject of the articles. No research was conducted in Indiana. The plaintiff is not a resident of the State of Indiana. The Webb Company is a Delaware corporation and publishes a magazine in St. Paul, Minnesota entitled The Farmer which contained the allegedly defamatory articles. The plaintiff alleged in an “Affidavit in Support of Complaint” that The Farmer was circulated in Minnesota, North Dakota, and Pennsylvania. Attached .to the defendants’ motion for summary judgment was the affidavit of Jack Kinderwater, the publisher of The Farmer. Attached to his affidavit was a summary of the circulation of The Farmer for the years December 1981 through 1983. That summary discloses that in 1981 there were 163,303 paid subscriptions to The Farmer, sixteen of which were sent to Indiana. In 1982, there were 150,126 paid subscriptions of which seventeen were sent to Indiana. In 1983, there were sixteen paid subscriptions sent to Indiana out of a total paid subscriptions of 146,400. The sending of The Farmer to those individuals in Indiana that had a paid subscription as indicated above plus some very limited circulation in Indiana that was not paid for is the only contact The Webb Company had with Indiana. The circulation summary also discloses that in 1981, 100,540 copies of a total circulation of 166,836 were sold or distributed in Minnesota and another 61,803 were sold or distributed in North and South Dakota. In 1982, a total of 153,479 copies per issue were sold or distributed of which 92,653 were in Minnesota and another 56,925 in North and South Dakota. In 1983 The Farmer had a total circulation of 149,813 of which 89,832 were sold or distributed in Minnesota and another 56,313 in North and South Dakota.

Based on these facts, this court concludes that M.J. Nelson did not have sufficient minimum contacts with the State of Indiana to permit this court to exercise personal jurisdiction over her. Nelson’s only contacts with Indiana with respect to the articles in question were telephone calls that sought public information. Cf. Foster v. Automark Industries, Inc., 640 F.2d 77 (7th Cir.1981). Nor could M.J. Nelson be subject to personal jurisdiction under the “effects” test in Colder v. Jones, supra. The articles in question were not aimed at Indiana but rather were aimed at Minnesota, North Dakota and South Dakota and concerned finder’s fee loan practices. The plaintiff was referred to in said articles because of his alleged connection with such practices but he was not the primary subject of the articles. Alexander Gaus, Jr. was a resident of Illinois, not Indiana, and maintained his office in Chicago, Illinois. The circulation of The Farmer in Indiana was minimal. Research was not done in Indiana nor were the articles based on information drawn from Indiana residents. Accordingly, M.J. Nelson had no reasonable expectation of being haled into court in Indiana and to require this defendant to defend this action in Indiana would place a burden on Nelson that would not be fair or reasonable. It would not be convenient for M.J. Nelson nor does Indiana have a particular interest that would be served by requiring Nelson to defend this case here. Neither party is a resident of Indiana and from his pleadings, it does not appear that the plaintiff is seeking damages for injuries, if any, sustained in Indiana. Accordingly, the maintenance of this suit against this defendant would offend ‘.‘traditional notions of fair play and substantial justice” and this defendant must be dismissed for lack of personal jurisdiction.

The record in this case reveals the same result must be reached with respect to The Webb Company. The Webb Company does not regularly do business in Indiana or derive substantial revenue or benefit from the State of Indiana. Based on the very limited paid subscriptions sent to Indiana, The Webb Company had no reasonable expectation of being haled into court in Indiana to defend in a case such as this. The contacts of The Webb Company with Indiana are not sufficient to permit this court to exercise personal jurisdiction over this defendant and to require this defendant to defend this action in Indiana would place a burden on The Webb Company that would not be fair nor reasonable. It would not be convenient for The Webb Company nor does Indiana have a particular interest that would be served by requiring The Webb Company to defend this ease here. The principles announced in Keeton v. Hustler Magazine, Inc., supra, do not apply since the plaintiff is not seeking damages for injuries, if any, that occurred in Indiana. Accordingly, the maintenance of this suit against this defendant would offend “traditional notions of fair play and substantial justice” and this defendant must be dismissed for lack of personal jurisdiction.

For the foregoing reasons, the Motion for Summary Judgment filed by M.J. Nelson and The Webb Company on the ground that this court lacked personal jurisdiction over these defendants is GRANTED. M.J. Nelson and The Webb Company are hereby DISMISSED. Costs shall be assessed against the plaintiff.

3. Qualified Privilege of Expression under the First Amendment of the Constitution of the United States

The defendants, Bluffton Banner Newspaper a/k/a Evening News-Banner and Bluffton News-Banner (Bluffton Banner), and James Barberri, Editor a/k/a James Barbieri — Editor (Barbieri), moved for summary judgment on the grounds that they are shielded from liability on the basis of a constitutional privilege for the alleged defamatory or libelous statements made by them. The plaintiff filed a response to this motion basically maintaining that there were genuine issues of material fact that must await trial.

The constitutional guarantees of freedom of speech and press primarily grounded in the First Amendment of the Constitution of the United States form the basis for a qualified privilege for all media expression. This qualified privilege imposes limitations on state libel laws and began with the landmark case of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). In the New York Times case, the Supreme Court of the United States held that a public official must prove by clear and convincing evidence that a defamatory falsehood relating to his official conduct was published with “actual malice” in order to recover damages therefor. Id. at 279-80, 84 S.Ct. at 725-26. To establish actual malice, a plaintiff must prove that the defendant published a statement with actual knowledge of its falsity or with reckless disregard for whether it was false or not. Id. at 280, 84 S.Ct. at 726. In reaching that conclusion, the Supreme Court recognized that factual error is inevitable in free debate and must be countenanced in order to prevent self-censorship and its chilling effect on freedom of expression.

In later cases explaining and defining the concept of “reckless disregard”, the Supreme Court explicitly rejected a negligence standard for satisfying the “actual malice” requirement. Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964). Rather, the Court held that “reckless disregard” may be found if the defamatory falsehoods were published with a “high degree of awareness of their probable falsity,” id. at 74, 85 S.Ct. at 215, or if the defendant publisher “in fact entertained serious doubts as to the truth of his publications.” St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968).

In 1967, the “actual malice” standard first enunciated in New York Times Co. v. Sullivan was held equally applicable in cases involving “public figures” who were not “public officials.” Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). In Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), the New York Times rule was further extended to cover individuals who were not “public figures” or “public officials.” In Rosenbloom, the Supreme Court focused on the subject matter of the publication rather than the plaintiffs status as a “public” or “private” figure and held that the actual malice standard applied if the publication concerned a matter of public interest.

In Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), the Supreme Court again addressed the proof necessary to recover on an action based on libel and indicated that a less demanding standard than the New York Times actual malice standard would be constitutionally permissible. The Gertz Court held that the individual states would be allowed to determine the appropriate standard of liability for publishers of defamatory falsehoods. In guiding the states, the Court stated that a simple negligence standard would be acceptable but that liability without fault and libel per se were inappropriate standards of liability. Id. at 346-47, 94 S.Ct. at 3010-11.

In response to the Gertz opinion, the Court of Appeals of Indiana acted on the substantial latitude given by the Supreme Court of the United States and defined the appropriate standard of liability for media libel actions in Indiana. In AAFCO Heating and Air Conditioning Co. v. Northwest Publications, Inc., 162 Ind.App. 671, 321 N.E.2d 580 (1974), cert. denied, 424 U.S. 913, 96 S.Ct. 1112, 47 L.Ed.2d 318 (1976), the court explicitly adopted the standard set forth in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971) in which the New York Times rule applied to all publications concerning an event or topic of general or public interest. Thus, in Indiana the law is clear that if a publication concerns a matter of general or public interest, it is privileged. In order to overcome the privilege, the plaintiff must prove actual malice by clear and convincing evidence. Id., 162 Ind.App., at 679, 321 N.E.2d at 586. Further, whether a matter is of general or public interest for purposes of applying the actual malice standard is a determination to be made by the trial courts. Id. at 686, 321 N.E.2d at 590. Furthermore, the use of summary judgment is appropriate in libel actions because of the “chilling effects” such suits have on First Amendment rights. See Fadell v. Minneapolis Star & Tribune Co., 425 F.Supp. 1075 (N.D.Ind.1976), aff'd, 557 F.2d 107 (7th Cir.1977), cert. denied, 434 U.S. 966, 98 S.Ct. 508, 54 L.Ed.2d 452 (1977).

In this case, the plaintiff has not identified what article or articles or what information contained in those articles he maintains was defamatory. Rather, in a 'C-ument attached to the complaint entitled “Affidavit in Support of Complaint” the plaintiff stated in pertinent part as follows:

2. Reports and publications noted specific libel as relates to personal affiliations, associates, religious organizations, business mens groups; slandering without proof or substance:
(a) Church
(b) Full Gospel Business Mens Fellowship, International.
(c) Private religious beliefs — and slander (libel) against family of Plaintiff.
3. False publication of association with less than desirable people and organizations.
4. False and libelous publications as to activities, personal (and business) affiliations that did not exist; elaborated to include activities completely foreign to Plaintiff, his family, or legitimate ties.
5. Libel as to alleged ties to:
(a) Mafia
(b) Cosa Nostra
(c) Syndications involved in merchandising stolen equipment.
7. Libelous statements as to unrealistic amounts of monies; commencing with 25 millions of dollars, fluctuating to 500
thousand, to 250 thousand, to 50 thousand — none of which supported by fact.

In his response to the pending motion for summary judgment, the plaintiff stated as follows with respect to alleged defamatory statements:

Plaintiff submits herewith, pursuant to Order of the Court, — and sets forth specific facts showing genuine issue for trial — to wit:
(a). (T)hat federal law enforcement agencies concerted with elements of the mob to aid Gaus’ early release from United States Penitentiary, Terre Haute, Indiana. Defendants are legally obligated to show such protocol exists.
(b). Plaintiff (was) involved, and associated. with one Dominick Santarelli; Paul “The Waiter” Ricca and Tony “Big Tuna” Accardo, top bosses of the Chicago crime syndicate.
(c). Plaintiff was “a link” with Carlos Marcello (the mob chieftain recently convicted in the Brilab case in New Orleans).
(d). Plaintiff was associate of Sam Gi-ancana, Las Vegas mob boss.
(e). Plaintiff was connected with gangland-style murdering of two coal operators, one in Kentucky and one in Alabama.
(f). Plaintiff being a fund raiser for the mob.
(g). Plaintiff was involved in a takeover attempt of the Gateway National Bank of Chicago, using worthless securities as collateral.
(h). Plaintiff employed the Name and organization of the Full Gospel Businessmen’s Fellowship International as a means to enter the homes and place(s) of business, of persons and parties to extract funds or investment capital illegally.

The aforementioned lies were originally published by the Bluffton New-Banner and Jim Barbieri....

The plaintiff did not identify what issue or issues of the Bluffton Banner that these alleged “lies” appared in.

On November 16, 1983, plaintiff filed a motion requesting this court to enter an order requiring defendants to submit for the record and make available to plaintiff “all records and information relative to the allegations cited in the complaint” and then included a list of some of the items sought. The defendants, the Bluffton Banner and Barbieri, filed a response on January 19, 1984 indicating that they were uncertain as to what the plaintiff was requesting but attached to said response copies of all articles appearing in the Bluffton Banner concerning the plaintiff that were published after September 27, 1981.

This court has carefully reviewed every article appearing in the Bluffton Banner that was produced in response to the plaintiff’s motion. Thao review discloses that the articles were centered around the plaintiffs actions vis-a-vis members of the public. More particularly, the articles related to the trial of Alexander Gaus, Jr. in Wells County, Indiana for violation of the security laws of the State of Indiana and Gaus’ criminal activity in other states. Accordingly, those publications concerned a matter of general or public interest and the actual malice standard would apply and the publication would be protected by the qualified privilege described above unless the plaintiff proves by clear and convincing evidence that the alleged defamatory falsehoods were published with actual malice.

This court has carefully reviewed the entire record in this case, paying particular attention to the filings made by plaintiff. On the basis of that review, the court finds that the plaintiff has failed to raise a genuine issue for trial with respect to Bluffton Banner and/or Barbieri entertaining serious doubts as to the truth of the articles. The plaintiff has the burden of proving “actual malice” on the part of these defendants and the record discloses that plaintiff cannot prove actual malice in the New York Times sense.

Accordingly, for the foregoing reasons, the motion for summary judgment filed by the Bluffton Banner Newspaper and James Barbieri is hereby GRANTED and Judgment shall be entered for said defendants against the plaintiff. Costs shall be assessed against the plaintiff.

SO ORDERED.

      . Although Wilson v. Garcia, - U.S. -, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), is not to be applied retroactively, see, e.g., Winston v. Sanders, 610 F.Supp. 176 (C.D.Ill.1985), that does not affect the determination of the appropriate statute of limitations to be applied in this. Prior to Wilson v. Garcia, Indiana had applied the two year statute of limitations to civil rights cases under 42 U.S.C. § 1983 so the Wilson case only reaffirmed the posture previously adopted in Indiana with respect to such cases.

      . There is some doubt as to whether the decision in Blake v. Katter, 693 F.2d 677 (7th Cir.1982) remains valid in the context of cases filed against police officers under 42 U.S.C. § 1983. It is the view of this writer that Wilson v. Garcia, undermines the basic holding in Katter. Whether it does so retroactively is a question to be saved for a later day. In this case it is unnecessary to reach that question. In this case the defendants simply are not within the reach of Blake v. Katter assuming its continued validity-

      . John South frequently traveled to California on business. The Supreme Court did not discuss whether this defendant’s contacts were sufficient in themselves so as to permit the exercise of personal jurisdiction since it relied on an “effects" test. 104 S.Ct. at 1486 n. 6.


author: GENE CARTER, District Judge.

text:
    Donald C. MOODY, Plaintiff, v. MAINE CENTRAL RAILROAD COMPANY, Defendant.
    Civ. No. 84-0415 P.
    United States District Court, D. Maine.
    Nov. 6, 1985.

      Joanne F. Cole, W. John Amerling, Am-erling & Burns, Portland, Me., Stephen M. Kerwin, McClung, Peters, Simon & Arens-berg, Albany, N.Y., for plaintiff.
    Ralph I. Lancaster, Jr., Pierce, Atwood, Scribner, Allen, Smith & Lancaster, Portland, Me., for defendant.
   ORDER

GENE CARTER, District Judge.

Presently before the Court is Defendant Maine Central Railroad Company’s (“Maine Central”) Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Maine Central’s motion is in response to an action brought against it by Plaintiff Donald Moody under the Federal Employers Liability Act (“FELA”), 45 U.S.C. 51, et seq., alleging that the Plaintiff suffered injuries as a result of the negligent acts and omissions of the Defendant. The Court finds no genuine issue of material fact with respect to these claims and, therefore, grants the Motion for Summary Judgment.

Although not specified in the Complaint, the interrogatories answered by the Plaintiff indicate that the injury for which this action seeks recovery is the emotional disturbance allegedly caused by harassment and psychological abuse of the Plaintiff over a long period of years in the course of his employment. The Plaintiff maintains that much of this alleged abuse arose from the Defendant’s desire that the Plaintiff not participate in an engineer training program. In addition to citing various incidents designed to discourage his participation, the Plaintiff claims he saw a letter from a Maine Central superintendent to four foremen indicating that Maine Central did not want people like the Plaintiff involved in the training program. The Plaintiff contends that as a result of this harassment and psychological abuse, he suffered mental injuries for which he sought medical attention.

Generally, there can be no recovery for emotional disturbance under the FELA without some precipitating physical injury. In Bullard v. Central Vermont Ry., 565 F.2d 193 (1st Cir.1977), the court held that a jury’s award of damages was excessive to the extent that it compensated the plaintiff for psychological injuries not properly attributable to a physical injury. In that case, the court adopted as the general rule: “ ‘The mental suffering, for which damages can be recovered, therefore, is limited to that which result to the person injured, as the necessary or natural consequence of the physical injury.’ Id. at 197 (emphasis added) (quoting Sullivan v. Old Colony Street Ry. Co., 197 Mass. 512, 516, 83 N.E. 1091, 1092 (1908). In Finn v. Consolidated Rail Corp., 622 F.Supp. 41 (D.Mass.1985) (order granting summary judgment), a case involving alleged negligence in record keeping by an employer which resulted in the mental suffering of an employee, the court cited Bullard in support of the position that “one cannot recover for emotional distress, unless there is some causally related compensable physical injury.” Finn at 42. The court granted the employer’s motion for summary judgment, noting that at most there was a record keeping error but that there was not a precipitating physical injury. Finn at 42. See also Dickerson v. Saint Louis Southwestern Ry. Co., 674 S.W.2d 165, 172 (Mo.App.1984) (“An FELA claimant can recover damages for mental distress only where there is competent evidence that the mental distress is attributable to the accident in question.”)

In the instant case, even assuming that the Defendant’s conduct complained of was negligent in character and precipitated the Plaintiff’s mental disturbance, there is nothing before the Court to indicate that there was the requisite physical injury. The only suggestion of any physical injury is in the Plaintiff’s deposition, where he states he suffered from angina attacks and general fatigue. Assuming that the Plaintiff did suffer from these ailments and that they do constitute a physical injury, they are not sufficient to enable the Plaintiff to recover under the FELA. First, there is no record made by Plaintiff on this motion to support the existence of a causal connection between either the fatigue or the angina allegedly suffered by the Plaintiff on one occasion and the actions of the Defendant. See Fed.R.Civ.P. 56(e) and Local Rule 19(b)(1) and (2). Plaintiff puts forth no evidence that any other physical injury was sustained by him.

Second, even if it was established that Plaintiffs alleged angina attack was a result of a mental disturbance of the Plaintiff, it would be a consequence of the mental disturbance and would not constitute the requisite precipitating physical injury.

In conclusion, there is no genuine issue of fact regarding the existence of the physical injury without which Plaintiff cannot recover under the FELA for mental or emotional distress. Accordingly, the Defendant’s Motion for Summary Judgment is GRANTED and the Clerk is hereby directed to enter judgment in favor of the Defendant.

So ORDERED.


author: ROBERT H. HALL, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. $319,820.00 IN UNITED STATES CURRENCY, Defendant.
    Civ. A. No. C85-0055.
    United States District Court, N.D. Georgia, Atlanta Division.
    Nov. 7, 1985.

      Amy D. Levin, Atlanta, Ga., for plaintiff. James F. Gilbride & Scott A. Silver, Gil-bride, Heller & Brown, P.A., Miami, Fla., Mark J. Kadish, Kadish & Kadish, Atlanta, Ga., for defendant.
   ORDER

ROBERT H. HALL, District Judge.

This is a forfeiture action pursuant to the Drug Abuse Prevention Act, 21 U.S.C. §§ 801 et seq., in which plaintiff (“the Government”) is seeking to have the defendant property condemned and forfeited on the theory that the defendant property was furnished or intended to be furnished in exchange for a controlled substance in violation of the federal drug laws and/or was proceeds traceable to an illegal exchange for a controlled substance and/or was money intended to be used to facilitate a violation of the federal drug laws. See 21 U.S.C. § 881(a)(6). Jurisdiction exists pursuant to 28 U.S.C. §§ 1345 and 1355.

Presently pending are: (1) the motion for summary judgment filed by claimants, the four parties who have filed claims to the defendant property; (2) claimants’ motion to compel; (3) plaintiffs motion to compel; (4) plaintiffs motion to strike demand for jury trial; and (5) plaintiffs motion to permit a discovery deposition or, in the alternative, to preclude the testimony of Dr. Lee Hearn.

FACTS

A. The seizure

On May 12, 1984, officers of the Atlanta Bureau of Police Services received reports that two Latin males, subsequently identified as Cesar and German Angulo-Neiblas, had been moving around suspiciously on a flight from Miami to Atlanta, exchanging a carry-on bag by leaving it in the restroom of the airplane. The officers approached the Angulo-Neiblas as they deplaned and requested an interview and permission to search their luggage. The Angulo-Neiblas consented to both the interview and the search.

The bag which Cesar Angulo-Neiblas was carrying was found to contain a large amount of United States currency, taped together with masking tape. The currency was later counted as $219,820.00.

Drug Enforcement Administration Agent Paul Markonni was advised of the discovery of this currency and conducted an interview of the Angulo-Neiblas. Agent Markonni asked Cesar Angulo-Neiblas if the currency belonged to him and Cesar replied “no,” that the currency belonged to a company for whom he and German were carrying the currency.

When German Angulo-Neiblas was questioned, he also stated that the money was not his but belonged to the individual listed on a business card found with the currency, Jose Thomas Vargas of Bogota, Colombia, South America.

Neither Cesar or German knew who was going to pick up the money in Seattle, Washington, their destination.

During the course of the interview, a “girdle” of currency was discovered bound around Cesar’s mid-section with masking tape. This currency was later counted as $76,000.00. Currency later counted as $14,000.00 was subsequently found in Cesar’s boot. All of the currency discovered, with the exception of a few bills, was in $20 denominations and banded by rubber bands.

Based on the interview, the suspicious behavior on the plane, the method by which the currency was being transported, and the fact that the Angulo-Neiblas were wearing ill-fitting, out-of-season clothes, Agent Markonni seized the currency for forfeiture under 21 U.S.C. § 881.

B. Subsequent events

On June 15, 1984, Jose Thomas Vargas was voluntarily deposed concerning the currency seized. During this deposition, Vargas testified that the currency was intended to be used to purchase emeralds and other gems in Hong Kong and that it was being transported by Cesar and German Angulo-Neiblas from Miami to Seattle for security reasons. Vargas also testified that he was not licensed, incorporated or registered to do business in the United States.

Later, Agent Markonni learned that $630,000.00 in United States currency had been seized at the Los Angeles International Airport on October 18, 1983, under circumstances similar to those in this case and subsequently judicially forfeited under § 881. Vargas had also claimed ownership of that currency.

On November 14, 1984, a narcotics detector dog trained to detect heroin, cocaine, hashish and marijuana “alerted to” the seized currency during a controlled test. Two days later, the currency was transported to a laboratory in Miami, Florida, to be washed for controlled substance residue. Tests performed by a Drug Enforcement Administration chemist on random samples of the currency identified cocaine residue on a portion of the bills.

DISCUSSION

A. Claimants’ motion for summary judgment

The claimants to the defendant currency move for summary judgment on the ground that the Government lacked probable cause to seize the defendant currency for judicial forfeiture.

Section 881(b) of Title 21 of the United States Codes provides that:

(b) Any property subject to forfeiture to the United States under [21 U.S.C. §§ 801 et seq-1 may be seized by the Attorney General upon process issued ... by any district court of the United States having jurisdiction over the property, except that seizure without such process may be made when—
(1) the seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant;
(2) the subject property has been the subject of a prior judgment in favor of the United States in a criminal injunction or forfeiture proceeding under [21 U.S.C. §§ 801 et seq.\
(3) the Attorney General has probable cause to believe that the property is directly or indirectly dangerous to health or safety; or
(4) the Attorney General has probable cause to believe that the property has been used or is intended to be used in violation of [21 U.S.C. §§ 801 et seq.].

21 U.S.C. § 881(b) (emphasis added). Because the seizure at issue was made without process, and because the seizure was not incident to an arrest or search under a warrant, the currency not subject to a prior judgment in favor of the United States, and the currency not dangerous to health or safety, the seizure to be legal must have been supported by probable cause to believe that the currency had been used or was intended to be used in violation of the federal drug laws.

Similarly, the institution of this forfeiture action under § 881(d) must have been supported by probable cause to believe the defendant property is forfeitable. 21 U.S.C. § 881(d).

The probable cause necessary to support the seizure of property under § 881(b)(4) and the institution of a forfeiture action under § 881(d) is “ ‘probable cause for belief that a substantial connection exists between the property to be forfeited and the criminal activity defined by the statute,’ that is, the exchange of a controlled substance.” United States v. Four Million, Two Hundred Fifty-Five Thousand, 762 F.2d 895, 903 (11th Cir.1985) (emphasis deleted). The belief must be a reasonable one, “supported by less than prima facie proof, but more than mere suspicion.” Id. See also United States v. One 1979 Porsche Coupe, 709 F.2d 1424, 1426 (11th Cir.1983); United States v. One 1978 Chevrolet Impala, 614 F.2d 983, 984 (5th Cir.1980).

The existence of probable cause to support a forfeiture is a matter of law. Four Million, Two Hundred Fifty-Five Thousand, supra, 762 F.2d at 903 n. 17.

Circumstantial evidence and inferences therefrom can suffice to support a finding of probable cause. Id. at 904; United States v. $364,960.00 in United States Currency, 661 F.2d 319, 324-25 (5th Cir.1981) (Unit B). The government need not produce evidence of a particular narcotics transaction to establish probable cause. Four Million, Two Hundred Fifty-Five Thousand, 762 F.2d at 904.

Probable cause “ ‘must be judged not with clinical detachment but with a common sense view of the realities of normal life.’ ” Id., quoting Wilson v. Atta-way, 757 F.2d 1227 (11th Cir.1985). The court can take into account “common experience considerations,” such as the fact that the property seized is connected to a known center for drug-smuggling and money-laundering. Id.

However, the nationality of the couriers and the amount of money involved cannot alone give rise to a finding of probable cause; it is the totality of the circumstances which gives rise to the finding of probable cause. Id. at 903 n. 18. Cf. United States v. $364,960.00 in United States Currency, supra, 661 F.2d at 324 (the sheer quantity of currency seized may support an inference that the currency is connected with illegal narcotics trafficking where the currency is found with narcotics, narcotics paraphernalia—including a scale and glassine bags—and guns).

Since the standard for probable cause in § 881 forfeiture cases is similar to that used in search and seizure cases, see United States v. One 56-Foot Motor Yacht, 702 F.2d 1276, 1281 (9th Cir.1983); United States v. One 1974 Porsche 911-S, 682 F.2d 283, 285 (1st Cir.1982); United States v. One 1975 Mercedes, 280S, 590 F.2d 196, 199 (6th Cir.1978); Application of Kingsley, 614 F.Supp. 219, 224 (D.Mass.1985), this court must be mindful of the principles developed in that context. One such principle is that courts should be especially cautious when the evidence that is alleged to establish probable cause is entirely consistent with innocent behavior. See Reid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 2754, 65 L.Ed.2d 890 (1980) (per curiam); Moya v. United States, 761 F.2d 322, 325 (7th Cir.1985); United States v. Saperstein, 723 F.2d 1221, 1228-29 (6th Cir.1983). See also Florida v. Royer, 460 U.S. 491, 507, 103 S.Ct. 1319, 1329, 75 L.Ed.2d 229 (1983).

The Government asserts that the following facts created probable cause to support the seizure of the defendant currency:

(1)the behavior of the Angulo-Neiblas on the flight from Miami to Atlanta;
(2) the origin of the Angulo-Neiblas’ flight, a city known to be a major cocaine source;
(3) the large amount of currency carried;
(4) the manner in which the currency was carried—part in a carry-on bag, part taped around Cesar’s mid-section, and part hidden in Cesar’s boot;
(5) the method by which most of the currency was banded together—with rubber bands and masking tape rather than bank wrappers;
(6) the small denomination of the bills;
(7) the Angulo-Neiblas’ ignorance of the person who was going to pickup the currency in Seattle;
(8) the purported owner of the currency is a citizen of Colombia—a country known to be a significant source of cocaine and marijuana; and
(9) the Angulo-Neiblas were wearing ill-fitting, out-of-season clothes.

The court agrees with the Government that based on all these considerations, the DEA agent had probable cause to believe that the currency carried by the Angulo-Neiblas was substantially connected to a narcotics exchange. The circumstances involved support more than a mere suspicion or “hunch” of such a connection. Of particular significance is the manner in which the currency was carried, the method by which the currency was banded together, the denomination of the bills, and the ties to Colombia and Miami.

The circumstances are not equally consistent with innocent behavior, contrary to what claimants argue. The court feels confident in assuming that innocent persons do not tend to carry large amounts of cash in the manner described.

That no narcotics or narcotics paraphernalia was being carried by the Angulo-Neiblas does not defeat the existence of the requisite probable cause when considering the totality of the circumstances. See, e.g., Four Million, Two Hundred Fifty-Five Thousand, supra, 762 F.2d at 902-04.

Having found probable cause to support the seizure of the defendant currency, the court DENIES the claimants’ motion for summary judgment.

B. Claimants’ motion to compel

After carefully considering claimants’ motion to compel, which seeks an order compelling the Government to answer ten interrogatory questions and to produce various documents requested, the court DENIES this motion for the reasons adequately set forth by the Government in its response to this motion.

C. Plaintiffs motion to compel (as amended August 23, 1985)

Plaintiff’s motion to compel being unopposed, the court GRANTS this motion.

D. Plaintiffs motion to strike claimants’ demand for jury trial

The Government moves to strike claimants’ demand for a jury trial on the ground that such demand was not made within ten days after service of the last-filed pleading as required by Fed.R.Civ.P. 38(b). The last filed Answer was filed on February 4, 1985, and claimants’ demand for a jury trial was not made until March 15, 1985, more than 30 days later.

Claimants oppose the motion to strike, arguing that the ten-day period of Rule 38(b) did not begin to run until March 7, 1985, when they filed their response to plaintiff’s motions to strike claimants’ claims and answers, or on April 10, 1985, when the court granted claimants’ motion to accept their claims as timely filed. In the event the court deems the demand for a jury trial untimely, claimants’ request relief from their failure to file a timely demand since there would be no prejudice to the Government to have a jury trial and because they were under the “impression” that their demand was timely.

The court GRANTS the Government’s motion to strike. The court rejects claimants’ position that their jury demand was timely as well as their alternative position that they should be allowed a jury trial despite the tardiness of their Rule 38(b) demand. There is no room for disagreement that the last pleading in this action was filed on February 4, 1985, and that the ten-day filing period under Rule 38(b) began running on this date. Claimants’ response to the Government’s motions to strike claimants’ claims and answers was not a “pleading”, cf. United States v. Anderson, 584 F.2d 369, 372 (10th Cir.1978) (government’s motion to dismiss counterclaim held not to be a pleading for purposes of Rule 38(b)), nor was this court’s Order of April 10, 1985 a “pleading”. Claimants’ counsel’s misunderstanding of the meaning of “pleading” does not merit excusing their failure to comply with Rule 38(b), especially since the Government has proceeded with the (correct) assumption that claimants had waived their right to a trial by jury by not filing a timely demand.

E.Plaintiffs motion to permit discovery deposition or, in the alternative, to preclude the testimony of Dr. Lee Hearn

As claimants have no objection to the Government taking the discovery deposition of Dr. Lee Hearn “upon reasonable notice and in Dade County, Florida, the place of Dr. Hearn’s residence,” the court GRANTS plaintiffs motion to permit the taking of Dr. Hearn’s discovery deposition on the terms set by claimants.

CONCLUSION

In sum, the court:

(1) DENIES claimants’ motion for summary judgment;

(2) DENIES claimants’ motion to compel;

(3) GRANTS plaintiff’s motion to compel; .

(4) GRANTS plaintiff’s motion to strike demand for jury trial; and

(5) GRANTS plaintiff’s motion to permit discovery deposition (with qualifications described above).

      . Many of the facts asserted by the claimants are irrelevant to the issues before the court and are thus excluded from this fact summary.

      . According to the court’s calculations, the total amount of currency discovered was $309,820.00. It is not clear why the defendant currency is described as $319,820.00.

      . The case referred to is apparently United States v. $630,000.00 in U.S. Currency, No. Cv. 83-7988-ERJRX (C.D.Cal.). (See plaintiffs response to claimants’ Interrogatory Nos. 2 and 6, as quoted by claimants in their August 12, 1985 motion to compel discovery).

      . Section 881(d) provides, in pertinent part, that:
      The provisions of law relating to the seizure, summary and judicial forfeiture, and condemnation of property for violation of the customs laws ... shall apply to seizures and forfeitures incurred, or alleged to have been incurred, under the provisions of this sub-chapter, insofar as applicable and not inconsistent with the provisions hereof....
      The customs laws in turn provide that:
      In all suits ... brought for the forfeiture of any vessel, vehicle, merchandise, or baggage seized ..., where the property is claimed by any person, the burden of proof shall lie upon such claimant ...: Provided, that probable cause shall be first shown for the institution of such suit or action, to be judged of by the court....
      19 U.S.C. § 1615 (Emphasis in original).

      . The "substantial connection” requirement appears in the legislative history of § 881. See Four Million, Two Hundred Fifty-Five Thousand, 762 F.2d at 902 n. 14.

      . Just six months before it rendered Four Million, Two Hundred Fifty-Five Thousand, the Eleventh Circuit stated that in order to establish probable cause for forfeiture under 49 U.S.C. § 782 and 19 U.S.C. § 1595(a), the government has to show a reasonable ground for belief supported by prima facie proof. United States v. One 1972 44’ Striker, Bonanza, 753 F.2d 867, 868 (11th Cir.1985). By not reciting this higher standard in Four Million Two Hundred Fifty-Five Thousand, the court apparently does not adopt it in the context of § 881 forfeitures.

      . Compare United States v. Saperstein, 723 F.2d 1221, 1228 (6th Cir.1983); United States v. Andrews, 600 F.2d 563, 567. (6th Cir.1979) ("travel from Los Angeles cannot be regarded as in any way suspicious. Los Angeles may indeed be a major narcotics distribution center, but the probability that any given airplane passenger from that city is a drug courier is infinitesimally small. Such a flimsy factor should not be allowed to justify—or help justify—the stopping of travelers from the nation’s third largest city....”).

      . The Government also contends that the fact that the Angulo-Neiblas were of Colombian origin supports the finding of probable cause. The court, however, cannot determine from the evidence whether this fact was known at the time of seizure so it does not consider this fact in ruling on claimants’ motion for summary judgment.

      . This ruling renders unnecessary disposition of the question of whether a seizure without probable cause results in an automatic dismissal of the forfeiture proceeding (as argued by claimants) or merely results in the exclusion from the forfeiture proceeding of evidence obtained as a result of the improper seizure (as argued by the Government). See Application of Kingsley, 614 F.Supp. 219, 224 (D.Mass.1985) (raising, but not answering, this issue and suggesting additional alternatives). See also United States v. Monkey, 725 F.2d 1007, 1011 (5th Cir.1984) (adopting approach urged by the Government); United States v. One 1977 Mercedes Benz, 450 SEL, 708 F.2d 444, 448 (9th Cir.1983), cert. denied sub nom. Webb v. United States, 464 U.S. 1071, 104 S.Ct. 981, 79 L.Ed.2d 217 (1984) (same); United States v. Eighty-Eight Thousand, Five Hundred Dollars, 671 F.2d 293, 297-98 (8th Cir.1982) (same); United States v. One 1975 Pontiac Lemons, 621 F.2d 444, 450-51 (1st Cir.1980) (same).


author: GUNN, District Judge.

text:
    Howard D. VALENTINE, Plaintiff, v. ST. LOUIS SHIP BUILDING COMPANY and Alter Barge Line, Inc., Defendants.
    No. 84-117C(6).
    United States District Court, E.D. Missouri, E.D.
    Nov. 7, 1985.

      Gregory D. O’Shea, St. Louis, Mo., for plaintiff.
    Hubert I. Binowitz, Goldstein & Price, Michael D. O’Keefe, Dan Ball, Thompson & Mitchell, St. Louis, Mo., for defendants.
   MEMORANDUM OPINION

GUNN, District Judge.

This matter is before the Court for a decision on the merits following a trial to the Court. Plaintiff brought this action under general admiralty law and under the Jones Act, 46 U.S.C. § 688, for personal injuries sustained on February 12, 1982 on the deck of a barge owned by defendant Alter Barge Line, Inc., while in the employment of defendant St. Louis Ship Building Co. After consideration of the testimony and exhibits introduced at trial, and parties’ briefs and post-trial material, the Court makes the following findings of fact and conclusions of law in accordance with Rule 52, Fed.R.Civ.P.

FINDINGS OF FACT

Plaintiff was an employee of defendant St. Louis Ship Building Co. (St. Louis Ship). On the night of his injury, plaintiff was working as a deckhand on St. Louis Ship’s vessel, the MARTY S.

The night of February 12, 1982 was bitterly cold, and the Mississippi River was clogged with ice. The KATHY ELLEN, a vessel owned by defendant Alter Barge Line, Inc. (Alter), apparently ran onto some ice and sustained extensive damages to her hull, so much so that the vessel took on water in such substantial quantities that she began to list. The MARTY S. was called upon to aid in getting the KATHY ELLEN to St. Louis Ship’s dry dock that was on the Missouri side of the Mississippi River at St. Louis.

As the MARTY S. was pushing the KATHY ELLEN into St. Louis Ship’s dry dock, plaintiff stepped from the bow of his vessel to the stern of the KATHY ELLEN and made his way forward to assist in securing the disabled vessel to the dry dock. When he reached the bow of the KATHY ELLEN, plaintiff's foreman, Joseph Perry, was present handling a line on the vessel. Plaintiff was handed the line to assist with the docking procedure. During the course of the procedure, plaintiff stepped backward and fell into a partially opened hatch on the bow of the KATHY ELLEN. As a result of the fall, plaintiff sustained injuries to his neck, shoulder, ribs and index finger. He was lifted from the hatch and taken to shore and ultimately to a hospital for treatment.

The Court’s findings of fact and conclusions of law render details concerning the extent of injuries and their disabling effect inconsequential to the issues of the case.

According to the credible evidence, which comports with the defendants’ version of what took place at the time of the accident, the KATHY ELLEN was incapacitated and its engines were not running. Running power was provided by the MARTY S. which was pushing the crippled vessel. According to Randy Elder, the KATHY ELLEN’S pilot and an employee of defendant Alter, the KATHY ELLEN’S generators were being utilized and its running lights and two forward spotlights directed to the bow were on, providing a substantial amount of light on the bow where the hatch was located. Lights from St. Louis Ship’s dry dock also illuminated the bow of the KATHY ELLEN.

Robert Vención, engineer for the KATHY ELLEN, was on watch at the time of the accident. He and Rusty Gares, a deckhand on the KATHY ELLEN, had left the boat’s cabin and were on the bow when plaintiff, who was also on the bow, asked Vención for a tie line to secure the boat to the dry dock. Gares went down to the hold of the vessel to obtain the rope which was stored there to preserve it from the elements. The hatch lid on the bow was opened and the rope handed through the opening to plaintiff. The lid was then laid over the hatch and partially covered the opening. This was done within plaintiffs presence.

The hatch lid was necessarily kept ajar so that the line from the hold could be passed through it. Perry testified that a safety ring would not be placed around an open hatch under the conditions existing in this case, as such a device would interfere with the necessary use of the hatch and individuals coming in and out of the hold. Plaintiff, Perry and Gares, who had come back on deck, all handled the line in an effort to secure the stricken vessel to the dry dock.

Lights from the dry dock, the KATHY ELLEN’s spotlights directed on the bow of the vessel, together with its running lights and a light from within the hold shining through the hatch opening provided bright illumination to the bow and hatch for all the workers, including plaintiff, while they were busy at their chores. Perry, Vención, and Gares testified that they could clearly see the condition of the hatch and lid.

Both Vención and Gares noted a strong odor of alcohol on plaintiffs breath as they worked with him. Vención observed that plaintiff appeared to be unsteady on his feet and under the influence of alcohol. Plaintiff denied that he had been drinking.

Vención and Perry both warned plaintiff to be careful around the hatch opening, as the lid was not secure due to the line having to be pulled through it. Gares, who was standing next to plaintiff, heard the admonitions concerning need for caution around the hatch. Plaintiff acknowledged to both Vención and Perry that he heard and understood their cautionary advice.

Vención and Gares returned to the cabin to warm themselves. Perry heard an exclamation from plaintiff, turned and saw him half in and half out of the hatch. Perry then pulled plaintiff out and laid him on the deck. Plaintiff was conscious when Perry saw and tended to him. Vención and Gares returned to the bow when they heard of plaintiff’s accident and assisted getting him to shore.

Plaintiff’s testimony was to the contrary: that the lighting on the KATHY ELLEN was very poor, that he had “no knowledge of any lighting on the bow of the vessel or around the hatch.” He further testified that Perry was the only person on the bow of the boat with him and that he was given no warning of the open hatch. This is, of course, directly contrary to the credible testimony of Perry, Vención and Gares. The Court specifically finds the testimony of plaintiff not to be credible.

A former employee of St. Louis Ship, Don Goodson, testified that he had been on the dry dock on the night of plaintiff's accident and acknowledged that two of the dry dock's ten floodlights were out. These two lights were furthest distant from the bow of the KATHY ELLEN. It is the Court’s finding that Mr. Goodson’s testimony is immaterial to the case.

In accordance with the substantial weight of the credible evidence, it is the Court’s finding that the bow and hatch opening of the KATHY ELLEN were well lighted and that the plaintiff was aware of the opening and had been given ample warning about it. Further, under the circumstances of its necessary use, the hatch had to be open, and no safety device could be placed about it.

CONCLUSIONS OF LAW

Plaintiff’s cause of action against Alter Barge Line, Inc. is based on the doctrine of unseaworthiness and on negligence under general maritime law. The Court has jurisdiction over this matter under its admiralty jurisdiction. 46 U.S.C. § 740. The general maritime law doctrine of unseaworthiness allows a seaman to recover against a shipowner for personal injuries proximately caused by a condition which renders the vessel “not reasonably fit for her intended purpose.” Usner v. Lukenbach Overseas Corp., 400 U.S. 494, 91 S.Ct. 514, 27 L.Ed.2d 562 (1971) (Usner). See Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960) for an historical analysis of the unseaworthiness doctrine. See also G. Gilmore & C. Black The Law of Admiralty § 6-38 (2nd ed. 1975).

The shipowner’s liability for failure to furnish a seaworthy vessel is a species of liability without fault and is not limited by conceptions of negligence. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946). Allegation of a single, isolated incident of operational negligence gives rise to a cause of action based on negligence but not to one based on unseaworthiness. Usner, 91 S.Ct. 514 (shipowner not liable for longshoreman’s injuries caused by a sling which one of his co-workers negligently lowered too fast and too far); Campbell v. Seacoast Products Inc., 581 F.2d 98 (5th Cir.1978). Contributory negligence is not an absolute defense in admiralty cases founded upon unseaworthiness or negligence, but rather it is a basis to apportion damages. American President Lines, Ltd. v. Welch, 377 F.2d 501 (9th Cir.1967).

Plaintiff has made three allegations of unseaworthiness and negligence: (1) that the deck was inadequately lighted, (2) that the hatch was left open on the deck without a proper guard, and (3) that he was not warned of this condition.

The Court recognizes that a vessel would be unseaworthy if the lighting were “so inadequate that it was not fit for the work at hand.” Theodories v. Hercules navigation Co., 448 F.2d 701, 705 (5th Cir.1971). In the present case, however, the Court concludes, based on its findings of fact, that the deck of the KATHY ELLEN was adequately lighted for the docking procedure underway. The Court further concludes, based on its finding that plaintiff was warned of the open hatch, that no liability can attach on that ground. Finally, the Court concludes that under the facts of this case it was not negligent for the hatch to be open and without a railing, and that such condition did not render the vessel unseaworthy. These conclusions are based on the Court’s findings that the reason the hatch was open was to obtain rope needed for the docking procedure from the hold onto the deck, one of the intended uses of the hatchway, and that under such circumstances it was not customary nor practicable to put a railing around the opening. The Court also finds that plaintiff had assisted in bringing the rope up through the hatchway and therefore knew of its open condition, and that he was repeatedly warned to watch out for it. See Theodories v. Hercules Navigation Co., 448 F.2d 701, finding no liability on the part of the shipowner under similar facts. See also Ove Tysko v. Royal Mail Steam Packet Co., 81 F.2d 960 (9th Cir.1936) (shipowner is not negligent in permitting hatchway to remain open where there is a custom to leave it open under circumstances of case).

Plaintiff’s cause of action against St. Louis Ship Building Co. is brought under the Jones Act, 46 U.S.C. § 688, which provides that a seaman may maintain an action for damages against his employer for personal injuries sustained in the course of his employment. The Act incorporates the provisions of the Federal Employers’ Liability Act (FELA), 45 U.S.C. §§ 51-60, giving seamen the same rights of action as railroad employees. An action under the Jones Act must be premised on the defendant’s negligence. De Zon v. American President Lines, 318 U.S. 660, 63 S.Ct. 814, 87 L.Ed. 1065 (1943); Joyce v. Atlantic Richfield Co., 651 F.2d 676 (10th Cir.1981). As in cases under general admiralty law, contributory negligence is not a bar to recovery but only mitigates damages. Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424, 59 S.Ct. 262, 83 L.Ed. 265 (1939); Drackenberg v. Canal Barge Co., 571 F.2d 912 (5th Cir.1978).

The Court’s conclusions above as to the adequacy of lighting, giving of warnings and lack of negligence in the open condition of the hatch are applicable to defeat plaintiff’s Jones Act claim against St. Louis Ship Building Co. Simply put, there is no negligence by defendants which can be attributable to plaintiff’s injury.

Judgment is accordingly entered in favor of both defendants and against plaintiff.


author: STECKLER, District Judge.

text:
    Rodney BOWMAN v. NIAGARA MACHINE AND TOOL WORKS, INC., et al.
    No. NA 84-152-C.
    United States District Court, S.D. Indiana, New Albany Division.
    Nov. 7, 1985.
    Hunt, Suedhoff, Borror & Eilbacher by Leonard E. Eilbacher, Arthur G. Surguine, Jr., Fort Wayne, Ind., Wyatt, Tarrant, Combs & Orbison by James E. Bourne, New Albany, Ind., for defendant Niagara Machine and Tool Works, Inc.
    White & Raub by Keith A. Gaston, Nicholas T. Buschmann, Indianapolis, Ind., for defendant Kempler Indus.
    Cooper, Cox, Jacobs, Reed & Barlow by George A. Leininger, Madison, Ind., for defendant Positive Safety Mfg. Co.
    Defendant The Safeguard Mfg. Co. has never been served.
    Defendant The Rockford Safety Equipment Co. is reported to be bankrupt.
   ORDER

STECKLER, District Judge.

This matter is before the Court on a motion for summary judgment by defendant Niagara Machine and Tool Works, Inc. Defendant argues that the Indiana Products Liability Act, Ind. Code § 33-1-1.5-5 bars plaintiff’s claims for damages allegedly caused by defendant’s product. Plaintiff contends that the Indiana Act is unconstitutional. Plaintiff has requested oral argument, but the Court has determined that it is not necessary. Local Rule 10. Having considered the briefs and affidavits of the parties and being duly advised in the premises, the Court finds that there are no genuine issues of material fact and that defendant is entitled to judgment as a matter of law.

On May 20, 1982, plaintiff was injured while using a mechanical power press at I.T.T. Thompson Industries, his place of employment, in North Vernon, Indiana. The press was manufactured by defendant and shipped to the Marietta Aircraft Assembly plant in 1943. Defendant has not performed any maintenance, modification, or repairs on the machine since that date. Nor has defendant issued any manuals, instructions, warnings or other representations since then. Plaintiffs complaint was filed on April 25,1985. These facts are not disputed.

Plaintiff alleges both negligence and strict products liability claims. Indiana law applies to this diversity action because the injury occurred in Indiana. See Klaxton v. Stenton Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Snow v. Bayne, 449 N.E.2d 296 (Ind.Ct.App.1983). Therefore, plaintiffs claims are subject to the ten-year statute of limitations in Ind.Code § 33-1-1.5-5 which bars any action against defendant under the facts of this case.

Plaintiff first alleges that the statute is unconstitutional because it violates the Commerce Clause of the Constitution. Plaintiff argues that the statute places a burden on interstate commerce which is not outweighed by the state’s interest in enacting the statute. However, plaintiff has failed to demonstrate any burden on interstate commerce. Rather, plaintiffs supporting affidavit from Dr. Robert Sandy and plaintiffs memorandum demonstrate that the statute shelters out of state manufacturers and increases the cost of work related injuries in Indiana. Thus, the statute would seem to burden the state’s interests rather than interstate commerce. Whether this result is a desired policy is for the Indiana state legislature to decide, not this Court.

Plaintiff also contends that products liability is an area requiring uniformity and that the Indiana statute prevents the desired uniformity. The Court has taken judicial notice of congressional testimony concerning the desirability of a uniform products liability law. The Court also notes, however, that the purpose of this testimony was to determine whether Congress should pass a federal products liability act. That determination is for Congress to decide. Only if and when Congress decides to enact a federal products liability law, therefore preempting state laws, should this Court determine if the Indiana statute interferes with the uniform federal law. Based on the facts before the Court, it is clear as a matter of law that the Indiana statute does not violate the Commerce Clause.

Plaintiff also argues that the statute deprives him of his First Amendment right of access to the courts without equal protection. This particular statute has withstood attacks on equal protection grounds previously. See Braswell v. Flintkote Mines, Ltd.., 723 F.2d 527, 531 (7th Cir.1983); Scalf v. Berkel, Inc., 448 N.E.2d 1201 (Ind.Ct.App.1983). The statute has also withstood due process challenges. Braswell, 723 F.2d at 529-531; Pitts v. Unarco Industries, Inc., 712 F.2d 276 (7th Cir.1983). Plaintiff attempts to distinguish these precedents by arguing that those cases used the rational relationship test for constitutionality whereas the compelling state interest standard applies to this action because a fundamental right is involved. Although access to the courts is a fundamental right, the right to a specific remedy or to a common law cause of action is not. Dague v. Piper Aircraft Corp., 275 Ind. 520, 418 N.E.2d 207, 213 (1981). The creation of new rights or the abolition of old common law ones is not unconstitutional if done to attain a permissible legislative objective. Silver v. Silver, 280 U.S. 117, 122, 50 S.Ct. 57, 58, 74 L.Ed. 221 (1927). Statutes of limitation or repose do attain legitimate legislative objectives. See United States v. Kubrick, 444 U.S. 111, 117, 100 S.Ct. 352, 356, 62 L.Ed.2d 259 (1979). The Indiana statute of limitations does not deny plaintiff access to the courts. Rather, it eliminates a cause of action after a specific time period. Consequently, the statute does not deprive plaintiff of a fundamental right and is not unconstitutional on either equal protection or due process grounds.

By reason of the foregoing, defendant’s motion for summary judgment is GRANTED. Plaintiff’s complaint against Niagara Machine and Tool Works, Inc. is DISMISSED.