author: CYR, Chief Judge.

text:
    UNITED STATES of America v. Thomas BASSFORD, et al., Defendants.
    Crim. No. 84-00022-B.
    United States District Court, D. Maine.
    Jan. 28, 1985.

      Timothy C. Woodcock, Asst. U.S. Atty., Bangor, Me., for plaintiff.
    David Sanders, Livermore Falls, Me., for Thomas Bassford.
    Gary M. Growe, Lunn & Growe, Bangor, Me., for Kevin Bradley.
    J. Hilary Billings, Marshall A. Stern, Bangor, Me., for Richard Bradley.
   MEMORANDUM DECISION AND ORDER

CYR, Chief Judge.

The defendants are separately charged in a superseding indictment with manufacturing a large quantity of marijuana. They move to suppress certain evidence seized on August 26 and September 3, 1983.

I.

FACTS

In August 1983 the Maine State Police [MSP] received a tip from a confidential informant concerning the cultivation of marijuana plants near the residence of defendant Thomas J. Bassford in Salem Township, Maine. On August 25, 1983, after verifying the reliability of the informant, MSP Troopers William Draper and Michael Sperry flew over the Bassford property at an altitude of about 1,000 feet in a small plane piloted by MSP Sgt. Bradford Cochran. During the course of their two passes over the area on August 25, the officers observed four or five plots of vegetation in the generally wooded vicinity of the Bassford residence. The plots were a distinctively brighter green than the surrounding area. Sgt. Cochran considered the bright green coloration of these plots consistent with cultivated marijuana.

On the basis of these aerial observations, Trooper Sperry obtained a warrant from a state court judge on August 26, 1983 to search “property owned by THOMAS J. BASSFORD and NANCY J. BASSFORD.”

On the same day 16 officers, including Troopers Sperry and Draper, set out to search the Bassford property in Salem Township. Earlier that day and prior to commencing the search, Trooper Draper had flown over the Bassford property at a lower altitude than the flight of the previous day in an effort to determine the number of persons in the area of the Bassford property.

The Bassford property consists of a heavily wooded 30-acre parcel situated on the slope of Mt. Abraham. Access to the Bassford property is gained by turning off the main road (Route 142) onto a dirt road (Lovejoy Road) for one mile, proceeding over a right-of-way (East-West Road) on property owned by a “Reverend Reid,” and then following an even rougher woods road north for about 600 feet through a “gateway” to Bassford’s wood-frame home. The property is bordered on the south and east by the Reid property. A portion of the Reid property was the subject of a pending sale to defendant Richard Bradley. The south property line of the Bassford property consists of a rough stone wall topped with two strands of barbed wire along most of its length. There are two openings in the wall: one through which passes the rough woods road leading to the East-West Road; the other, framed with a wooden arch-type gate, through which a cow path leads from the Bassford house to the environs of a small one-room frame building erected by Richard Bradley immediately north of the East-West Road. At 50-feet intervals along the Bassford boundaries and at the gateways “no trespassing” signs were posted. Brush had been piled about four feet high along the east boundary.

Bassford’s nearest year-round neighbors lived about one-half mile away. The Carrabassett Airport, from which the previously described overflights began, is located about ten miles away. There are two or three other small airports in the general vicinity.

In order to reach the Bassford house the police officers walked along the “cow path” leading from the East-West Road. In the clearing where the Bassford house is located the police found two “garden” plots of cultivated marijuana. One plot (Plot # 1), containing 49 plants, was located about 10 feet from the Bassford house and the other (Plot # 2), containing 128 plants, was about 100 feet from the house. In another clearing, about 450 feet from the Bassford house and connected to the house by two paths, the officers found another plot (Plot # 3), containing 50 marijuana plants.

In the course of their search of the Bass-ford house, numerous articles were seized by the officers. Bassford was given a copy of the search warrant, but the copy he received did not include the affidavit to which the warrant makes reference. The police left an inventory of the items seized from the residence.

Because more than three plots had been observed from the air the officers broadened the scope of their ground search. After walking in a southerly direction on a foot path leading to another clearing, the officers found a larger “garden” plot (Plot # 4), containing 640 plants. Plot # 4 was located about 370 feet from the Bassford house and was completely surrounded by woods.

About 100 feet to the south of Plot # 4 they found a small building, built and occasionally occupied by Richard Bradley. The one-room building, approximately 8 feet by 12 feet, was furnished with a kerosene lamp and two mattresses on the floor. Various personal articles and a portable cooler were also located inside the building. Although there was a stand of birch trees between the back of the building and Plot # 4, there was a low swale where the birches did not completely occlude the view of Plot # 4 from the building.

When the officers came upon the Richard Bradley building, its only door was wide open. Outside the building various gardening tools were discovered. The officers entered the building and seized a roll of film found setting on a board inside. The film was later developed by the police. The search of the Richard Bradley building was made in the belief that it was on the Thomas Bassford property, which was the subject of the search warrant.

Continuing their search of the area the officers discovered another garden plot (Plot # 5), containing 49 marijuana plants, located along the south side of the East-West Road about 200 feet east of the Richard Bradley building and situated on the property Richard Bradley was in the process of purchasing from Reid.

After completing the August 26 search, the officers learned from a confidential informant that there were other marijuana plots nearby which had not been discovered. On September 2, 1983, Trooper Draper flew over the property of defendant Kevin Bradley in Salem Township. The flight originated from a Phillips, Maine airport. On his return pass over the Kevin Bradley property, Draper used binoculars to assist his observations from an altitude of 1,000 feet.

On September 3,1983 a state court judge issued a warrant for the search of the “curtilage” of the property of Kevin Bradley, “described as a [one] acre lot with a two-story house located on the east side of Lovejoy Road in Salem Township ... six-tenths of a mile from the junction of [Love-joy Road] and Route 142.” In applying for the warrant, Trooper Draper submitted, inter alia, his own affidavit containing the following averments:

On September 2, 1983 at 4 P.M. this officer flew over the property in question, recognizing the Lovejoy Road as well as a two-story log house as landmarks. Approximately 20 feet from the said house I saw field of marijuana. The field was located on the southeast side of the house.
I have had prior experience in successfully identifying marijuana from the air. Using a high-powered pair of binoculars, I was able to clearly see that the crop 1,000 feet below was marijuana.

Draper’s “prior experience” in aerial identification of marijuana consisted of his participation in the August 25 flight over the Bassford property.

On September 3, 1983, police officers executed the search warrant on the Kevin Bradley property. After entering the driveway through a gate the officers saw and seized a number of items from inside and outside the Kevin Bradley home, including farming implements, drying screens, “roaches,” dry marijuana and marijuana “trimmings.” The officers also found a plot (Plot # 6), 20 feet by 40 feet in size and containing 378 marijuana plants, which was five feet from the back of the Kevin Bradley house. In the woods, several hundred feet from the Kevin Bradley house, the officers discovered eight more marijuana plants growing in buckets.

II

MERITS

A. Search of the Bassford Property

Bassford argues that the search of his property pursuant to a search warrant was unlawful because (1) the affidavits submitted in support of the warrant contained information obtained from an unlawful warrantless aerial surveillance of the property, and (2) the warrant was not executed in compliance with the requirements of Fed.R.Crim.P. 41(d) and Me.R.Crim.P. 41(d).

1. Lawfulness of the Aerial View

The aerial view of the Bassford Property on August 25, 1983 was made from an altitude of about 1,000 feet. No visual enhancement devices were used, though some photographs were taken. Bassford argues that under the recently decided case of United States v. Oliver, — U.S.-, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984), the warrantless aerial search of areas within the “curtilage” of his home was unconstitutional.

In Oliver, a divided (6-3) Supreme Court held that the “open fields” doctrine of Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), applies to areas “out of doors in fields,” even though those areas are secluded and posted with “No Trespassing” signs. The Oliver decision concerned two warrantless ground searches (one in Maine) in the course of which cultivated marijuana had been discovered. In Hester, the Court had held that government intrusion upon open fields is not prohibited by the fourth amendment.

In a portion of the opinion joined by five members of the Court, Oliver discussed the Hester rule in light of the “reasonable expectation of privacy” test laid down in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Noting that the fourth amendment “does not protect the merely subjective expectation of privacy, but only ‘those expectations that society is prepared to recognize as reasonable,’ ” — U.S. at-, 104 S.Ct. at 1740, quoting Katz, 389 U.S. at 361, 88 S.Ct. at 516 (Harlan, J., concurring), the Court delineated the factor's bearing on whether a governmental search is unlawful.

In assessing the degree to which a search infringes upon individual privacy, the Court has given weight to such factors as the intention of the Framers of the Fourth Amendment, ... the uses to which an individual has put a location, ... and our societal understanding that certain areas deserve the most scrupulous protection from government invasion____ These factors are equally relevant to determining whether the government’s intrusion upon open fields without a warrant or probable cause violates reasonable expectations of privacy and is therefore a search proscribed by the Amendment.

— U.S. at-, 104 S.Ct. at 1741 (citations omitted).

Although there was no contention in Oliver that the areas searched were part of the curtilage of a home, the Court stated that the rule in Hester “may be understood as providing that an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home,” id. The Court then went on to discuss, in dictum,, the relationship between “open fields” and curtilage:

The historical underpinnings of the “open fields” doctrine also demonstrate that the doctrine is consistent with respect for “reasonable expectations of privacy.” As Justice Holmes, writing for the Court, observed in Hester, 265 U.S., at 57 [44 S.Ct., at 445], the common law distinguished “open fields” from the “curtilage,” the land immediately surrounding and associated with the home. See 4 Blackstone, Commentaries *225. The distinction implies that only the curtilage, not the neighboring open fields, warrants the Fourth Amendment protections that attach to the home. At common law, the curtilage is the area to which extends the intimate activity associated with the “sanctity of a man’s home and the privacies of life,” Boyd v. United States, 116 U.S. 616, 630 [6 S.Ct. 524, 532, 29 L.Ed. 746] (1886), and therefore has been considered part of home itself for Fourth Amendment purposes. Thus, courts have extended Fourth Amendment protection to the curtilage; and they have defined the curtilage, as did the common law, by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private.

Id. — U.S. at -, 104 S.Ct. at 1742 (citations omitted).

Oliver did not delineate the scope of the curtilage exception to the “open fields” doctrine nor did it speak to the propriety of aerial surveillance of areas within the curtilage but open to view from the air. But the Court did state that “both petitioner Oliver and respondent Thornton concede that the public and police lawfully may survey lands from the air,” and noted, with apparent approval, the lower court decisions in United States v. Allen, 675 F.2d 1373 (9th Cir.1980), cert. denied, 454 U.S. 833, 102 S.Ct. 133, 70 L.Ed.2d 112 (1981), and United States v. DeBacker, 493 F.Supp. 1078 (W.D.Mich.1980). — U.S. at - & n. 9, 104 S.Ct. at 1742 & n. 9.

In Allen, the Ninth Circuit considered the propriety of a Coast Guard helicopter surveillance of an isolated coastal ranch in Oregon suspected of housing a drug-smuggling operation and concluded that the residents of the ranch “could not reasonably bear a subjective expectation of privacy from the Coast Guard’s airborne scrutiny,” id. at 1381. In reaching this conclusion the court considered it significant that: (1) Coast Guard helicopters routinely traversed the nearby air space; (2) due to the proximity of the ranch to the coastline, Coast Guard patrol and surveillance would be expected; (3) the surveillance was undertaken pursuant to a reasonable suspicion, rather than a “random investigation to discover criminal activities;” and (4) the objects observed were “large scale modifications of the Allen Ranch landscape and barn.” Id.

In United States v. DeBacker, 493 F.Supp. 1078 (W.D.Mich.1980), the court held that state police aerial passes at heights of 50 and 200 feet over a farm in the Michigan “boondocks,” during the course of which marijuana plants were spotted, did not infringe on any reasonable expectation of privacy, in view of the following factors: (1) low altitude airplane flights over local farm lands were not an infrequent occurrence; (2) society’s interest in permitting such “non-intrusive” surveillance outweighs the minor expectation of privacy which might be implicated; (3) the surveillance was brief, sparked by an anonymous tip, not a prolonged intrusion based on a hunch; and (4) the police were in a place they otherwise had a right to be. Id. at 1081. Accord United States v. Mullinex, 508 F.Supp. 512 (E.D.Ky.1980); State v. Stachler, 58 Hawaii 412, 570 P.2d 1323 (1977).

The only authority cited by any of the defendants in support of their claim that the aerial surveillance was unconstitutional, Dow Chemical Co. v. United States, 536 F.Supp. 1355 (E.D.Mich.1982), was recently reversed by the Sixth Circuit in Dow Chemical Co. v. United States, 749 F.2d 307 (6th Cir.1984), Dow Chemical involved Environmental Protection Agency aerial surveillance and photographing of the smoke stack emissions and general layout of a 2,000-acre chemical plant. Applying the two-prong test of Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the court concluded that there was no “search.” Although Dow had an actual expectation of privacy from ground intrusions by virtue of its elaborate security measures, no such expectation existed with respect to aerial observations, because no precautions had been taken to guard against such intrusions. Alternatively, the court concluded that even if any such expectation of privacy existed it was unreasonable in view of the size and urban location of the plant.

Thus, rather than embracing a general rule courts have taken a case-by-case approach to the fourth amendment problems implicated by aerial surveillance. Among the factors to be considered are the height of the aircraft, see United States v. DeBacker, 493 F.Supp. at 1081 [noting that low altitude (200 feet) flights over farm land were not unusual]; People v. Lashmett, 71 Ill.App.3d 429, 27 Ill.Dec. 657, 389 N.E.2d 888 (1979) [no search involved in viewing farm machinery from altitude of 2,400 feet], cert. denied, 444 U.S. 1081, 100 S.Ct. 1034, 62 L.Ed.2d 765 (1980); People v. Sneed, 32 Cal.App.3d 535, 108 Cal.Rptr. 146 (1973) [helicopter surveillance at 20-25 feet, unconstitutional]; Williams v. State, 157 Ga.App. 476, 277 S.E.2d 923 (1981) [no “search” where plane at lawful height], cert. denied, 454 U.S. 823, 102 S.Ct. 108, 70 L.Ed.2d 95 (1981); the size of the objects, see United States v. Allen, 675 F.2d at 1381 [large scale modifications of landscape and barn]; People v. Lashmett, supra [farm machinery]; State v. Ryder, 315 N.W.2d 786 (Iowa 1982) [same]; the nature of the area observed, including the uses to which it is put, see Dean v. Superior Court, 35 Cal.App.3d 112, 110 Cal.Rptr. 585 (1973); the frequency of flights over the area, United States v. Allen, supra; State v. Stachler, 58 Hawaii 412, 570 P.2d 1323 (1977); and the frequency and duration of the aerial surveillance, see United States v. Allen, supra; United States v. DeBacker, supra; State v. Stachler, supra; see also United States v. Knotts, 460 U.S. 276, 283-84, 103 S.Ct. 1081, 1086-87, 75 L.Ed.2d 55 (1983) [suggesting that surveillance which does not otherwise implicate the fourth amendment may do so if too protracted].

There are three or four small airports in the Mt. Abraham region, including one within ten miles of the Bassford property. Bassford acknowledges that small planes frequently fly over Mt. Abraham, although he maintains that it was less common for planes to pass over the side of the mountain on which his home is located. Moreover, the court takes judicial notice of the common use of small planes in Maine to gain access, for a variety of recreational reasons, to even the most remote areas of the state.

Another important factor militating against a reasonable expectation of privacy from aerial surveillance of these properties is the striking contrast between the color of the marijuana plots and the color of the surrounding flora, as clearly evidenced in photographs taken from an altitude of 1,000 feet. It would be unreasonable to expect that the attention of persons flying over the area would not be drawn to the distinctively different coloration of the marijuana vegetation in a densely wooded area on a mountainside where more conventional farming would not be expected.

Finally, the brief surveillance involved in the present case, like that in Allen and DeBacker, was undertaken in response to the receipt of specific information concerning the cultivation of marijuana on the Bassford property. The Court is simply not presented with a surveillance either sufficiently intrusive or protracted to constitute a warrantless infringement upon any expectation of privacy that society is prepared to recognize as reasonable.

Defendant Bassford would have the court distinguish aerial observations of the “curtilage” of his home from observations of the area outside the curtilage. The thrust of the message in all of the aforementioned cases is that aerial surveillance is constitutionally permissible except where it intrudes upon an actual and reasonable expectation of privacy. Thus, “curtilage” considerations appear to be pertinent primarily for purposes of evaluating the existence and reasonableness of the asserted expectation of privacy. See, e.g., United States v. Roberts, 747 F.2d 537 (9th Cir. 1984). Indeed, in its brief discussion of the concept of curtilage the Oliver Court noted that courts have defined curtilage “by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private,” — U.S. at-, 104 S.Ct. at 1742.

Although a warrantless search of a home or its curtilage effected by means of a physical intrusion into the curtilage violates the fourth amendment absent exigent circumstances, see United States v. Van Dyke, 643 F.2d 992, 993 (4th Cir.1981), observations of areas within the curtilage from ground locations outside the curtilage are generally permissible, absent use by the occupant of measures to prevent such observations. See, e.g., Fullbright v. United States, 392 F.2d 432, 435 (10th Cir.1968); State v. Peakes, 440 A.2d 350, 352-53 (Me. 1982); see generally 1 W. LaFave, Search and Seizure § 2.3(g) (1978). Under the same reasoning and assuming that aerial surveillance of the particular place is lawful, there would appear to be no sound basis for distinguishing between “curtilage” and “noncurtilage” areas equally visible from the air. In most cases it would be impracticable to view one without contemporaneously viewing the other. Thus, the inquiry is appropriately limited to whether there existed a reasonable expectation of privacy from aerial surveillance of an area, whether curtilage or noncurtilage. See United States v. Mullinex, 508 F.Supp. 512, 513 (E.D.Ky.1980).

Although Bassford may well have hoped that planes passing overhead would be occupied by persons uninterested in his unusual farming location and his distinctive crop, he could not reasonably expect that others, such as the police, would not fly over and take note. All of the plots on the Bassford property, including “Plot # 1,” which was about ten feet from the house, were clearly and contemporaneously visible from the same aerial vantage point.

For the reasons already given concerning the lawfulness of aerial surveillance generally, the court concludes that no reasonable expectation of privacy was infringed by the aerial surveillance on August 25,1983. Accordingly, the information derived from that surveillance was properly included in support of the application for the Bassford search warrant.

2. Violations of Me.R.Crim.P. 41(d)

Defendant Bassford further claims that he was not given a complete copy of the search warrant and that the search inventory was not completed in his presence. See Me.R.Crim.P. 41(d). Fed.R. Crim.P. 41(d) is substantially the same as the Maine rule. “The prevailing view [is that such] provisions are deemed to be ministerial only, so that ‘absent a showing of prejudice’ failure to comply with them does not void an otherwise valid search.” 2 W. LaFave, Search and Seizure, § 4.12 p. 186 (1978). Defendant presents no evidence of prejudice and no authority or compelling argument for the suppression of the fruits of the warranted search due to the asserted violations of Me.R.Civ.P. 41(d), nor has the Court discerned any.

B. Search of the Richard Bradley Property

1. Discovery of the Marijuana Plots

Although it concedes that the search of the Richard Bradley property was not authorized by warrant, the Government argues that the discovery of the marijuana plots (“Plot #4” and “Plot #5”) on the property occupied by Richard Bradley was proper under United States v. Oliver, — U.S. -, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984).

“Plot #4” was about 100 feet from Bradley’s building. “Plot # 5” was about 200 feet away from the building on the south side of the “East-West” Road. Bradley argues that the search which led to the discovery of Plot # 4 invaded the curtilage of the building. Bradley points to a footnote in United States v. Berrong, 712 F.2d 1370, 1374, n. 7 (11th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 2397, 81 L.Ed.2d 354 (1984), which suggests, according to Bradley, that a garden plot found some 75 yards from a camper trailer might be considered within the curtilage of the trailer. However, the footnote merely states that the scope of the curtilage of the camper trailer did not have to be determined because there was no evidence that the movants there had any interest in the camper trailer. Moreover, in its pre-Oliver decision the Berrong court upheld the district court’s finding that a field, located one-quarter of a mile from the Berrong residence and surrounded by a line of trees, was not within the curtilage of the residence:

The curtilage of the home is formed by the buildings “constituting an integral part of that group of structures making up the farm home,” Walker v. United States, 225 F.2d [447, 449 (5th Cir.1955) ], or “the immediate domestic establishment of the home,” Hodges v. United States, 243 F.2d [281, 283 (5th Cir.1957) ]. The “outer limits of the curtilage” have been expressly defined to be “the outer walls of the extreme outbuildings of the curtilage.” United States v. Williams, 581 F.2d [451, 454 (5th Cir.1978) ]. Since the marijuana field was located beyond all buildings on the Berrongs’ property, it was beyond the curtilage of the home.

712 F.2d at 1374. See also Rosencranz v. United States, 356 F.2d 310, 313 (1st Cir. 1966).

It has been noted that distance is but one factor to be considered in determining whether an area is within the curtilage of a home:

“Whether the place searched is within the curtilage is to be determined from the facts, including its proximity and annexation to the dwelling, its inclusion within the general enclosure surrounding the dwelling, and its use and enjoyment as an adjunct to the domestic economy of the family.”

United States v. Van Dyke, 643 F.2d 992, 994 (4th Cir.1981), quoting Care v. United States, 231 F.2d 22, 25 (10th Cir.), cert. denied, 351 U.S. 932, 76 S.Ct. 788, 100 L.Ed. 1461 (1956).

The Supreme Court in Oliver v. United States adopted a restrictive view of curtilage as the area “immediately adjacent to the home” where one pursues “the intimate activity associated with the ‘sanctity of a man’s home and the privacies of life,’ ...” — U.S. at-, 104 S.Ct. at 1742 {dictum).

Although the distance (100 feet) between marijuana Plot # 4 and the Richard Bradley building was less than the distance involved in Berrong, it was isolated from the building by trees, as was the Berrong “garden.” Moreover, although the Richard Bradley building occasionally was used as a dwelling, its location and rudimentary features (no heating system, running water, chairs, tables or long-term food storage facilities) do not indicate consistent domestic occupancy. Thus, the “domestic establishment” of the Bradley building cannot reasonably be viewed as extending much beyond its four walls. Although the use of the adjacent land for cultivation might be viewed as activity “associated” with the building, it can hardly be considered “intimate activity” usually associated with home-life, especially given the nondomestic nature of the crop and the separation of the building from the plot by an undeveloped wooded area. The court concludes that Plot # 4 was not within the curtilage of the Richard Bradley building.

Inasmuch as the marijuana plots (Plots # 4 and # 5) on the Richard Bradley property were “out of doors in fields” and not within the curtilage of the “home,” the' governmental intrusion into those areas was not an unreasonable search. Oliver v. United States, — U.S. -, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984).

Notwithstanding the Oliver holding and the fact that a contrary holding by the Maine Supreme Judicial Court was reversed by the Supreme Court of the United States, State v. Thornton, 453 A.2d 489 (Me.1982), rev’d sub. nom., Oliver v. United States, — U.S.-, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984), Richard Bradley argues that this court should decide whether the Maine constitution would require the suppression of this evidence.

On remand in Thornton the Maine court held that it would not consider Thornton’s argument under article I, section 5 of the Maine constitution, because it had not been argued before the suppression justice and because “Thornton never urged that the Maine judiciary should fashion an evidence exclusionary rule for the purpose of enforcing article I, section 5.” State v. Thornton, 485 A.2d 952, 953 (Me.1984). Thus, the Maine court expressly acknowledged that it has never fashioned an exclusionary rule.

Defendant has pointed to no authority in support of the argument that a violation of a state constitutional provision by state officers would itself bar the use of the illegally obtained evidence in a federal prosecution. Indeed, the authority discovered by the court is to the contrary. See United States v. Combs, 672 F.2d 574, 578 (6th Cir.), cert. denied, 458 U.S. 1111, 102 S.Ct. 3495, 73 L.Ed.2d 1374 (1982); United States v. Miller, 452 F.2d 731, 733-34 (10th Cir.1971).

Therefore, the court concludes that the Maine constitution does not preclude use of the fruits of the subject searches.

2. Search of the Richard Bradley Building

Richard Bradley challenges the warrantless search of his “home,” which resulted in the seizure of a roll of film subsequently developed without a warrant. Despite its simpleness and lack of furnishings, there can be no doubt that the Richard Bradley home would qualify as the object of its owner’s (occupant’s) “legitimate expectation of privacy ...," United States v. Trickey, 711 F.2d 56, 58 (6th Cir.1983).

Trooper Draper testified that he found the door to the Bradley building open and that he saw the film cannister before entering. Assuming that the discovery of the film cannister may be said to have been justified under the plain view doctrine, the question remains whether the warrantless seizure and subsequent developing of the film were permissible under the fourth amendment. As the Supreme Court stated in Coolidge v. New Hampshire, 403 U.S. 443, 468, 91 S.Ct. 2022, 2039, 29 L.Ed.2d 564 (1971):

[Pjlain view alone is never enough to justify the warrantless seizure of evidence____ Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure.

Similarly, the plurality opinion in Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983), states that “ ‘plain view’ provides grounds for seizure of an item when an officer’s access to an object has some prior justification under the Fourth Amendment.” Id. at 738, 103 S.Ct. at 1540 (emphasis added).

The Government suggests that the warrantless seizure of the film cannister “was justified by virtue of its small size and consequent susceptibility to easy disposal.” Memorandum of Nov. 28, 1984, at 17. But since no one but the officers was in or near the building, there was no risk of disposal; hence, no exigency justifying its warrant-less seizure. Also, inasmuch as the officers could observe, from outside the building, that it was vacant, there was no need to enter in order to “secure” the building pending issuance of a search warrant.

Even assuming a lawful seizure of the film, the conduct of the officers in developing and viewing the film was not justified by any exigency and thus constituted a violation of the fourth amendment, see Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980), as the Government concedes.

The items seized from the structure on the Richard Bradley property must be considered the fruits of an illegal search and seizure. Evidence as to their discovery may not be used against Richard Bradley.

C. Search of the Kevin Bradley Property

Defendant Kevin Bradley challenges the search of his property, undertaken pursuant to a search warrant, on the grounds that: (1) the aerial observation on September 2, 1983, which formed part of the basis for the issuance of the search warrant, was an illegal search; (2) the scope of the ensuing ground search exceeded the area delineated in the search warrant; (3) the seizure of items other than marijuana exceeded the scope of the search warrant; and (4) a false statement by an affiant invalidated the search warrant.

1. Aerial Surveillance

Plot # 6 was located approximately five feet from the back of the Kevin Bradley house. The aerial surveillance on September 2, 1983 by Trooper Draper was conducted in much the same manner as the August 25 surveillance of the Bassford property, except that on his second pass over the Kevin Bradley property Draper used binoculars.

Even if Plot # 6 were to be considered part of the curtilage of the Kevin Bradley home, the court concludes that the observation of “Plot # 6” from 1,000 feet in the air did not constitute an unreasonable search. See discussion in Part II.A.(l) supra. However, Trooper Draper’s use of “high-powered binoculars” during the second pass over the Kevin Bradley property merits closer attention.

Ordinarily, the use of binoculars to enhance one’s vision of objects already visible in the open area outside a building does not invalidate an otherwise lawful search. See, e.g., United States v. Lace, 669 F.2d 46, 51 (2d Cir.1982); see also United States v. Hensel, 699 F.2d 18, 41 (1st Cir.1983) (dictum). Although there have been expressions of concern about technologically-aided aerial observations, see generally Note: Warrantless Aerial Surveillance: A Constitutional Analysis, 35 Van.L.Rev. 409, 426-28 (1982), courts have approved the use of certain technological devices in the course of aerial surveillance. United States v. Allen, 633 F.2d 1282 (9th Cir. 1980) [telephoto lens]; State v. Stachler, 58 Hawaii 412, 570 P.2d 1323 (1977) [binoculars]. Compare State v. Knight, 63 Haw. 90, 621 P.2d 370 (1980) [warrantless aerial observation of area inside greenhouse (not visible with the naked eye) with high powered binoculars constitutes unreasonable search].

Trooper Draper initially observed the marijuana plants in Plot #6 without any visual aid. It was on his second pass that Draper used the binoculars. Although there may well be circumstances in which it would be appropriate to restrict the use of sophisticated technological devices for aerial observation of objects otherwise invisible to the naked eye, the court is satisfied that Draper’s use of binoculars merely enhanced his view of a readily visible marijuana plot previously observed with the naked eye. The use of binoculars did not convert the aerial observation into an unlawful search.

2. Scope of the Search

The September 3, 1983 search warrant describes the place to be searched as the “curtilege (sic) of Property owned by Kevin Bradley, described as 1 acre lot with a 2-story log house with at least one other building, located on Lovejoy Road in Salem____” Kevin Bradley argues that this description does not include and therefore did not permit the search of the Kevin Bradley house.

The affidavits did not establish probable cause to search the Kevin Bradley house. The officers were able to see marijuana cigarettes inside the house, from their vantage point outside. Accordingly, the Government argues that the officers were authorized to enter the house and seize the marijuana cigarettes, as well as other items discovered in plain view during the course of the seizure of the marijuana cigarettes.

The Government misplaces reliance on Washington v. Chrisman, 455 U.S. 1, 102 S.Ct. 812, 70 L.Ed.2d 778 (1982). In that case a police officer placed a college student under lawful arrest and accompanied him to his dormitory room, where the student wished to go to obtain his identification. While watching the arrestee from the hall outside the room, the officer saw what he believed to be marijuana seeds and a small pipe on a desk inside the room; whereupon he entered the room and seized the pipe and seeds. The Supreme Court found that the entry and seizure were lawful, noting that it was “of no legal significance whether the officer was in the room, on the threshold, or in the hallway, since he had a right to be in any of these places as an incident of a valid arrest.” Id. at 8, 102 S.Ct. at 817.

As was the case with the entry into the Richard Bradley building, the Government has shown no lawful basis for entering the Kevin Bradley house without a valid warrant, which it concedes it did not have. The plain view observation of the marijuana cigarettes did not itself justify the warrantless entry and seizure. See Texas v. Brown, 460 U.S. 730, 738, 103 S.Ct. 1535, 1540, 75 L.Ed.2d 502 (1983); Coolidge v. New Hampshire, 403 U.S. 443, 468 (1971). Accordingly, the items seized inside the Kevin Bradley home are the suppressible fruits of an illegal search and seizure.

3. Seizure of Items Other Than Marijuana

Since the search warrant described the objects to be seized as “marijuana,” Kevin Bradley argues that the police could not lawfully seize items found outside the house, but within the “curtilage,” which they reasonably believed to be instruments used in the cultivation of marijuana. However, these items were observed in plain view in the course of the lawful search for marijuana and, having probable cause to believe that these items were evidence of a crime, the officers, who had a legal right to enter the curtilage by virtue of the search warrant, lawfully seized these items. See Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

4. “False" Statements by Trooper Draper

Finally, it is contended that Trooper Draper’s affidavit in support of his application for the September 3, 1983 search warrant misstated his prior experience by asserting: "I have had prior experience in successfully identifying marijuana from the air.” Trooper Draper testified that he had only viewed marijuana from the air on one occasion prior to his September 2, 1983 flight over the Kevin Bradley property, that occasion being the August 25, 1983 flight over the Bassford property at which time Sgt. Cochran pointed out the marijuana plots.

Inasmuch as Trooper Draper later discovered, in the course of the ground search, that the distinctive bright green plants he had been shown from the air on August 25 were indeed marijuana, it was not incorrect, although it may have been imprecise, for Draper to assert “prior experience in successfully identifying marijuana from the air.” Draper did have prior, albeit limited, experience. Although he did not know during the August 25 flight that the bright green patches were marijuana, he was informed that they were and his later personal observation on the ground confirmed that information. Based on this prior experience in the successful (though not unaided) identification of marijuana, Draper recognized what he believed to be marijuana plants during the September 2, 1983 air surveillance of the Kevin Bradley property.

Assuming that the statement, strictly read, was an inaccurate account of Draper’s experience, the court concludes that it has not been shown that it amounts to a deliberate falsification or that it was made with reckless disregard for the truth, see Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667 (1978). The search warrant is not rendered invalid by virtue of the inclusion of this statement in the supporting affidavit. See id.

Ill

CONCLUSION

For the foregoing reasons, defendant Bassford’s motion to suppress is DENIED; defendant Richard Bradley’s motion to suppress the items seized in the warrantless August 26, 1983 search inside his building, as well as all evidence of the discovery of these items, is hereby GRANTED, and in all other respects his motion to suppress is DENIED; defendant Kevin Bradley’s motion to suppress the items seized in the September 3, 1983 search of the interior of his home, as well as all evidence of the discovery of these items, is hereby GRANTED, and in all other respects his motion to suppress is DENIED.

SO ORDERED.


source: Caselaw Access Project

author: GILES, District Judge.

license: Public Domain

text:
    SIMKINS CORPORATION v. GOURMET RESOURCES INTERNATIONAL, INC., et al.
    Civ. A. No. 84-4046.
    United States District Court, E.D. Pennsylvania.
    Jan. 28, 1985.

      Allan D. Windt, Spector, Cohen, Gadon & Rosen, Philadelphia, Pa., for plaintiff.
    Robert A. Swift, Kohn, Savett, Marion & Graf, Philadelphia, Pa., for defendants.
   MEMORANDUM

GILES, District Judge.

All defendants, with the exception of Gourmet Resources International, Inc. (“Gourmet”), have filed a motion to dismiss plaintiff’s complaint for lack of personal jurisdiction under Fed.R.Civ.P. 12(b)(2). For the following reasons, defendants’ motion is granted and the complaint is dismissed as to these defendants.

I. FACTS

This is a diversity action brought by Simkins Corporation (“Simkins”) against six defendants. Of the five defendants who have filed this motion to dismiss, one is a corporation, one is a partnership and three are individual members of Gourmet’s Board of Directors sued for actions taken in their corporate capacities.

Plaintiff alleges a complex interrelationship among and between the six named defendants. For the purposes of this motion, the salient relationships are as follows. Gourmet sells imported chocolates under the trade-name “Michel Guerard.” Simkins supplied boxes and box wraps to Gourmet for use in packaging their gourmet-quality sweets. Paramount Capital Corporation (“Paramount”) is a shareholder of Gourmet. Greenberg, Irwin and Weisinger (“Greenberg”) is a New York partnership engaged in the practice of law. Greenberg provides legal representation for Gourmet. Plaintiff asserts that Green-berg is also a shareholder of Gourmet. Gordon Ewart is alleged to be either a controlling shareholder of Paramount or a shareholder who controls Paramount. Martin Stern is alleged to be both a shareholder and a director of Gourmet. Albert J. Pechenik is the President of Gourmet.

Although the thrust of plaintiff’s action appears to be a failure to pay for goods sold and delivered to Gourmet, only the first two counts of the complaint are contractual in nature. Counts three through five of the complaint allege that Paramount, Greenberg, Ewart and Stern, as shareholders and/or directors of Gourmet, have breached their duty to Gourmet and its creditors by causing Gourmet, while it was insolvent, to satisfy the corporation’s indebtedness to them in preference to the indebtedness owed to the corporation’s creditors. The final count of the complaint states that Pechenik fraudulently misrepresented to Simkins, through its President, Morton Simkins, that Gourmet would use the proceeds from a public offering of its stock to repay Simkins for credit Simkins had extended in reliance on such a promise.

Defendants filed their motion to dismiss for lack of personal jurisdiction under Fed.R.Civ.P. 12(b)(2). Paramount, Green-berg, Ewart and Stern asserted that they had no contact with Pennsylvania. Pechenik argued that he had no personal contact with the Commonwealth other than in his corporate capacity through his affiliation with Gourmet. Plaintiff responded by stating that this court has personal jurisdiction over the movant-defendants by virtue of the Pennsylvania long-arm statute. 42 Pa. Cons.Stat.Ann. § 5322(a)(4) (Purdon’s 1981). Specifically, plaintiff asserts that each defendant has caused its tortious injury in Pennsylvania by his actions outside the Commonwealth.

In order to aid Simkins in discharging its burden of demonstrating sufficient contacts with the forum state, this court afforded the parties an evidentiary hearing on the issue of jurisdiction. See Compagnie des Bauxites de Guinee v. L’Union Atlantique S.A. D’Assurances, 723 F.2d 357, 362 (3d Cir.1983). In response to the ruling of the Third Circuit in Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 66-67 n. 9 (3d Cir.1984), this court advised the plaintiff that it could not rest on mere allegations to respond to the jurisdictional defense raised, but rather, was required to establish jurisdictional facts through affidavits or other competent evidence. This court not only addressed the general issue of burden of proof, but also raised multiple weaknesses in plaintiff’s evidence of forum-related contacts. Accordingly, I allowed the plaintiff thirty days to complete discovery on the limited issue of personal jurisdiction in order to buttress its actual proofs. Both parties were allowed an appropriate amount of time to prepare supplemental briefs.

II. DISCUSSION

Pursuant to Rule 4(e) of the Federal Rules of Civil Procedure, this court may exercise personal jurisdiction over the nonresident defendants to the extent the laws of Pennsylvania allow. The Pennsylvania long-arm jurisdiction statute, 42 Pa.Cons. Stat.Ann. § 5322(b) (Purdon’s 1981), provides for jurisdiction over non-residents “to the fullest extent allowed under the Constitution of the United States.” The Pennsylvania courts have recognized that this provision makes the reach of the long-arm statute co-extensive with the scope of personal jurisdiction permitted by the due process clause of the United States Constitution. Koenig v. International Brotherhood of Boilermakes, 284 Pa.Super. 558, 426 A.2d 635, 640 (1980), cited in Rees v. Mosaic Technologies, Inc., 742 F.2d 765, 768 (3d Cir.1984). Because this court is not obliged to follow the Pennsylvania courts’ interpretation of the United States Constitution, I am free to assess independently the constitutional permissibility of the exercise of jurisdiction over the foreign defendants in this case in accordance with the law of this circuit. Empire Abrasive Equipment v. H.H. Watson, Inc., 567 F.2d 554, 556 n. 1 (3d Cir.1977).

In determining whether due process considerations permit the exercise of in personam jurisdiction, this court will follow the two-step inquiry which has been consistently applied by the Third Circuit. See, e.g., Dollar Savings Bank v. First Security Bank of Utah, N.A., 746 F.2d 208, 212; Schwilm v. Holbrook, 661 F.2d 12, 14 (3d Cir.1981); Dunnigan v. Silverthorn, 542 F.Supp. 32, 33 (E.D.Pa.1982) (Giles, J.). See also Procter & Schwartz v. Cleveland Lumber Co., 228 Pa.Super. 12, 19, 323 A.2d 11, 15 (1974) (Pennsylvania courts constitutional analysis roughly parallels the inquiry followed by this circuit). First, I must determine whether the claim is related to, or arises out of, the defendant’s contacts with the forum. If the claim does not arise out of or is unrelated to defendant’s contacts with the forum, a plaintiff must demonstrate that the defendant maintained continuous and substantial forum affiliations (“general jurisdiction”). Dollar Savings Bank, supra, 746 F.2d at 212. On the other hand, if the claim arises out of or is related to a defendant’s transaction or transactions in the forum, then the court must engage in minimum contacts analysis (“specific jurisdiction”). Id. This distinction between general and specific jurisdiction is critical because the former test requires a substantially stronger showing of forum contact than is required under the latter. See Reliance Steel Products Co. v. Watson, Ess, Marshall & Enggas, 675 F.2d 587, 589 (3d Cir.1982).

Because there is insufficient evidence to sustain an ultimate finding that general jurisdiction exists as to any movant-defendant, our inquiry in this case is simplified. The plaintiff has failed to allege or produce any evidence that either the corporate defendants, or the individual defendants acting in their corporate capacities, have had the “extensive and pervasive” forum-related activities required under the more stringent standards of general jurisdiction. See Reliance Steel Products, supra, 675 F.2d at 589. Further, defendants’ pleading, briefs and affidavits abound with unrefuted statements that none of them had or has a continuing presence in Pennsylvania. See Defendants’ Motion to Dismiss at 3-4. Therefore, this court will direct its attention to whether specific jurisdiction is applicable, and, if so, whether plaintiff has proffered sufficient evidence to establish a finding of minimum contacts.

Where it is alleged that a tort has occurred out of state and the harm resulting from that tort is alleged to have occurred within the state, the task of determining whether a plaintiff’s cause of action arose out of a defendant’s forum-related activities is often perplexing. The difficulty of this task is particularly hard, where, as here, the nature of the transaction is commercial in nature yet the claims arising out of the transaction are characterized by the plaintiff as tortious. Simkins argues that its claims fall within the purview of the “tort out/harm in” provision of the Pennsylvania long-arm jurisdiction statute. See Pa.Cons.Stat.Ann. § 5322(a)(4) (Purdon’s 1981). The Pennsylvania legislature has mandated that tortious activity, even though its only connection with the forum is the in-state harm which gives rise to the cause of action, is sufficiently forum-related to subject a non-resident to personal jurisdiction. This “tort out/harm in” theory of jurisdiction does not fit neatly within the Third Circuit’s two-prong constitutional inquiry. Whereas the test set forth in Schwilm, supra, focuses on actual contact by the defendant with the forum, section 5322(a)(4) of the long-arm statute provides for jurisdiction by creating either a fictional contact with, or a fictional presence within the forum. In order to avoid this inherent conflict between the case law and the statute, the courts have focused on the ultimate question of whether the exercise of jurisdiction in such cases comports with the principles of due process. See, e.g., Koenig, supra, 284 Pa.Super. at 558, 426 A.2d at 640. The state’s interest in protecting its citizens against harm resulting from a non-resident’s out-of-state activity under section 5322(a)(4) must be weighed against the burden placed on that defendant in forcing him to defend in a foreign jurisdiction.

Assuming arguendo that Simkin’s claims against the defendants fall within the scope of tortious activity as defined by section 5322(a)(4), this court must determine whether Simkins has established, by a preponderance of the evidence, that defendants have the requisite minimum contacts with this forum. In undertaking this task, I am mindful of the Supreme Court’s admonition that the essential foundation of in personam jurisdiction is the “relationship among the defendant, the forum, and the litigation.” Helicopteros Nacionales de Columbia S.A. v. Hall, — U.S.-, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404 (1984) (quoting Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 2579, 53 L.Ed.2d 683 (1977)). The defendants must have “purposefully availed” themselves of the privilege of conducting activities in Pennsylvania. Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958). Plaintiff, in his briefs and oral argument, has consistently maintained that this court has jurisdiction because it was “reasonably foreseeable” that defendants’ tortious conduct would cause harm in Pennsylvania. Foreseeability alone, however, is not sufficient to confer personal jurisdiction. World-Wide Volkswagen v. Wood-son, 444 U.S. 286, 295, 100 S.Ct. 559, 566, 62 L.Ed.2d 490 (1980). Cf. Schwilm, supra, 661 F.2d at 15 (indicating that in “tort out/harm in” cases, harm must be clearly and specifically foreseeable to confer jurisdiction). Foreseeability is limited to ascertaining whether “the defendant’s conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there.” World-Wide Volkswagen, supra, 444 U.S. at 297, 100 S.Ct. at 567 (emphasis added), cited in Dollar Savings Bank, supra, 746 F.2d at 212. These considerations are necessary to ensure fundamental fairness in the decision to require a defendant to defend in a foreign jurisdiction. These principles must now be applied to the alleged contacts of each of the defendants. See Rush v. Savchuk, 444 U.S. 320, 332, 100 S.Ct. 571, 579, 62 L.Ed.2d 516 (1980).

A. Paramount

Plaintiff alleges that Paramount is a shareholder of Gourmet. Further, it asserts that Paramount, through the actions of its shareholder, Gordon Ewart, caused the insolvent Gourmet to satisfy its unsecured indebtedness to Paramount in preference to satisfying its obligations to Simkins. Simkins argues that Paramount’s liability is predicated on a breach of its fiduciary duty owed to creditors of Gourmet under a theory enunciated in Ceco Corp. v. Bar-Jay Assoc., Inc., 68 Pa.D. & C.2d 674, 679-81 (Dauphin 1974). Plaintiff relies upon this allegedly tortious conduct to bring the defendant within section 5322(a)(4) of the Pennsylvania long-arm statute.

First, Simkins has failed to allege facts sufficient to sustain a tort cause of action in Pennsylvania. There is no evidence that Paramount is either an officer or director of Gourmet; such a fact is a prerequisite to liability under Ceco. 68 Pa.D. & C.2d at 679-81. Moreover, there is unrefuted evidence that Paramount lacks sufficient minimum contacts with this forum “such that maintenance of this suit would not offend traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). Paramount has not conducted any activities within this state. The alleged loan transaction between Paramount and Gourmet is collateral to the contractual relations between Simkins and Gourmet. Having failed to establish any cause of action against Paramount, this court cannot assert personal jurisdiction over Paramount based on incidental economic detriment. Financial benefits accruing to Paramount from a collateral relation to the forum through Gourmet will not support jurisdiction since there is no constitutionally cognizable contact with Pennsylvania. See World-Wide Volkswagen, supra, 444 U.S. at 286, 100 S.Ct. at 559.

B. Greenberg

Plaintiff alleges that various members of the Greenberg entity are shareholders of Gourmet and, also, that Greenberg provided Gourmet with legal representation. Simkins asserts that Greenberg caused the insolvent Gourmet to pay Greenberg for legal services rendered in preference to satisfying its contractual liability to Simkins. The plaintiff again purports to state a tortious cause of action against this defendant under the theory set forth in Ceco. Further, Simkins asks this court to find personal jurisdiction over this defendant on the “tort out/harm in” provision of the long-arm statute.

Simkins has failed to allege that Greenberg, as a legal entity, is the beneficial owner of stock in Gourmet. Whether individual members of that firm who are alleged to be shareholders of Gourmet may be liable to Simkins is irrelevant since they are not parties to this suit. Furthermore, plaintiff has failed to allege that Greenberg is either an officer or director of Gourmet. Since this is a prerequisite to liability under the theory set forth in Ceco, Simkins has failed to allege a tort cause of action cognizable under the provisions of section 5322(a)(4). Notwithstanding the issue of whether the alleged acts of Greenberg fall within the provisions of the long-arm statute, this court would violate due process by asserting jurisdiction over it. The Green-berg partnership has presented unrefuted evidence that it has no contact with the forum apart from that resulting from this lawsuit. See Affidavit of Irwin at li 4. Any transaction between Gourmet and Greenberg is collateral to the relationship between Simkins and Gourmet. There is not a cognizable activity within the forum such that Greenberg “should reasonably anticipate being haled into court [in Pennsylvania].” World-Wide Volkswagen, supra, 444 U.S. at 297, 100 S.Ct. at 567 (brackets added). Indeed, the Third Circuit has denied specific jurisdiction in a case much more compelling than the case before this court. See Reliance Steel Prods., supra, 675 F.2d at 588-89 (delivery of legal advice by a non-resident law partnership over the telephone followed by a bill for such services delivered by mail to the client in Pennsylvania found to be insufficient forum-related activity to confer personal jurisdiction).

C. Ewart, Stern and Pechenik

Ewart, Stern and Pechenik are sued in their individual capacities based on their actions taken as officers or directors of Gourmet. Plaintiff states that both Ewart and Stern, as directors of Gourmet, breached their fiduciary duty to creditors of Gourmet by causing the allegedly insolvent defendant to advance funds for monies owed them in preference to monies owed creditors such as Simkins. Further, Simkins argues that Pechenik, as an officer of Gourmet, made fraudulent misrepresentations to Morton Simkins over the telephone while Simkins was in Pennsylvania and Pechenik was in New York. See Affidavit of Simkins at 115; Affidavit of Pechenik at K 2.

Assuming that this court would recognize the fiduciary duty imposed on corporate officers or directors in Ceco, plaintiff has stated a valid tort cause of action against Stern and Pechenik. See 68 Pa.D. & C.2d at 681; Moore, supra, slip op. at 2. However, as to defendant Ewart, plaintiff has failed to allege an essential element of the Ceco tort. Although Ewart is a member of Gourmet’s Board of Directors, there is no commercial loan transaction which took place between Ewart and Gourmet. It is only alleged that Gourmet received a loan from Paramount and repaid these funds to Paramount and not to Ewart. Simkins has not alleged that Ewart is the “alter ego” of Paramount nor has it produced any evidence that they should be considered a single entity for the purposes of this motion. Therefore, although the alleged actions of Stern and Pechenik fall within the scope of the long-arm statute, those of defendant Ewart do not.

I now turn to the ultimate question of whether the exercise of personal jurisdiction is “fundamentally fair” under minimum contacts analysis. In this case, the court must address the special issue which arises when officers or directors of a corporation are sued in their individual capacities for actions taken during the exercise of their corporate duties. The question which arises in this 12(b)(2) motion is not whether the individual corporate officer or director may be held legally accountable for tortious conduct occurring during the course of his employ but rather whether the individual must himself have sufficient minimum forum contacts to independently satisfy constitutional requirements. See Donsco, Inc. v. Casper Corp., 587 F.2d 602, 606 (3d Cir.1978) (concluding that a corporate officer is individually liable for torts he personally commits and cannot use corporate shield when he is an actual participant in the tort).

Plaintiff has urged the case of Techno Corp. v. Dahl Assoc., Inc., 535 F.Supp. 303 (E.D.Pa.1982) in support of its theory that this court has jurisdiction over the individual defendants. In that case, the court held that, because the individual corporate defendants had conducted business with the plaintiff for five years at the time they committed what was alleged to be an intentional tort, it was clearly foreseeable that their actions would have a direct impact on the plaintiff in Pennsylvania. 535 F.Supp. at 309. The Techno court, relying on the view that the Supreme Court’s decision in World-Wide Volkswagen, supra, did not “limit the reach” of section 5322(a)(4) when the place of the harm was clearly and specifically foreseeable, concluded that jurisdiction over the individual corporate officers was proper. Id. (citing Schwilm v. Holbrook, supra, 661 F.2d at 15).

At least two district courts within this circuit have recently sustained the exercise of in personam jurisdiction over individual defendants based on allegedly tortious actions taken while they were exercising their corporate authority. Unlike Techno, however, these cases do not rely on a defendant’s ability to foresee in-forum harm resulting from his out-of-state actions to sustain jurisdiction. Rather, they rely on the theory that acts alleged in a complaint which may be sufficient to create substantive liability on the part of the individual officer or director also inferentially provide a basis for the assertion of personal jurisdiction. In re Arthur Treacher’s Franchisee Litigation, 92 F.R.D. 398, 421 n. 34 (E.D.Pa.1981); Donner v. Tams-Witmark Music Library, Inc., 480 F.Supp. 1229, 1234-35 (E.D.Pa.1979). See also Lighting Systems v. International Merchandising, Assoc., Inc., 464 F.Supp. 601, 604 (W.D.Pa. 1979); Vespe Contracting Co. v. Anvan Corp., 433 F.Supp. 1226, 1234-35 (E.D.Pa. 1977). The court in Donner v. Tams-Witmark Music Library, Inc., based its decision on the rule of joint tortfeasor liability adopted by the Third Circuit. 480 F.Supp. at 1233 (citing, e.g., Donsco, supra, 587 F.2d at 606). Under this rule, if the corporation is found liable for the tort, the corporate officer who perpetrated the tort will also be subject to-personal liability. The court reasoned that it would be anomalous “to permit a corporate officer to shield himself from jurisdiction by means of the corporate entity, when he could not interpose that same shield against substantive liability.” 480 F.Supp. at 1234. Therefore, the court reasoned that the corporate officer’s allegedly tortious conduct could be considered in determining whether the court had jurisdiction over him as an individual. Id.

The defendants have cited two cases which have reasoned contrary to both Techno and Donner. Simpson v. Lifespring, Inc., 572 F.Supp. 1251 (E.D.Pa.1983); PSC Professional Serv. Group, Inc. v. American Digital Systems, Inc., 555 F.Supp. 788 (E.D.Pa.1983). Accord Barsky v. Lifespring, Inc., No. 83-6087, slip op. at 3-4 (E.D.Pa. Jan. 15, 1985) (Kelly, J.); Great American Enterprises v. C & K Management Trust, No. 83-5518, slip op. at 4-5 (E.D.Pa. Sept. 10, 1984) (Newcomer, J.); Bucks County Playhouse v. Bradshaw, 577 F.Supp. 1203, 1210-1211 (E.D.Pa.1983); Stop-A-Flat Corp. v. Electra Start of Michigan, Inc., 507 F.Supp. 647, 651 (E.D. Pa.1981). See also Spelling-Goldberg Productions v. Bodek & Rhoads, 452 F.Supp. 452, 454 (E.D.Pa.1978); Brown v. Cosby, 433 F.Supp. 1331, 1344 (E.D.Pa.1977); Feld v. Tele-view, Inc., 422 F.Supp. 1100, 1104 (E.D.Pa.1976); Miller v. American Telephone & Telegraph, 394 F.Supp. 58, 64 (E.D.Pa.1975), aff'd, 530 F.2d 964 (3d Cir. 1976) (decided under the old Pennsylvania long-arm statute, 42 P.S. §§ 8302, 8304, 8305, 8307 and 8309). First, in PSC v. American Digital Systems, the court reiterated the Supreme Court’s admonition that the focus of the minimum contacts inquiry is not on foreseeability, but rather, on whether the defendant’s conduct is such that he should reasonably be haled into a forum court. 555 F.Supp. at 793 (citing World-Wide Volkswagen, supra, 444 U.S. at 295, 297, 100 S.Ct. at 567). The PSC court implicitly rejected the foreseeability standard applied by the Techno court. Instead, the court focused on the negative effect of subjecting corporate officers to personal jurisdiction based solely on their participation in corporate activity. Chief Judge Luongo stated

Were the law otherwise, officers of corporations operating in several states would be faced with a Hobson’s choice. They must either disassociate themselves from the corporation or defend the propriety of their conduct in a distant forum.

555 F.Supp. at 793. Based on these policy grounds, the court concluded that a plaintiff must demonstrate other meaningful contacts with the forum apart from the contacts of the corporate entity of which the defendant is an officer or director. Id. at 794. Although it was clearly foreseeable that the corporate officers might be charged with acting unreasonably and hence, found responsible for the harm caused thereby, the court found that the plaintiff had not established sufficient independent minimum contacts to sustain in personam jurisdiction. Id. at 793.

In Simpson v. Lifespring, supra, the court similarly expressed its displeasure with reasoning of both Donner and Techno. It also concluded that to allow personal jurisdiction based on an officer or director’s corporate activities would in effect render corporate officers or directors subject to suit in any state in which their corporation does business and would violate the concept of fundamental fairness which undergirds constitutional due process. 572 F.Supp. at 1253.

Because I find that both the reasoning and the result of PSC and Simpson best comport with the principles of due process as enunciated by the Supreme Court and the Third Circuit in recent personal jurisdiction cases, I embrace their position that a corporate officer or director’s actions taken in his corporate capacity are, by themselves, insufficient to bring him personally within the jurisdiction of this court. I conclude that the Techno court relied too heavily on the traditional foreseeability analysis which is now reserved almost exclusively for products liability or so-called “stream of commerce” cases. See, e.g., PSC, supra, 555 F.Supp. at 794; Sunn Classic Pictures, Inc. v. Budco, Inc., 481 F.Supp. 382, 385 (E.D.Pa. 1979). While the Techno court purports to rely on Third Circuit precedent for the proposition that World-Wide Volkswagen does not restrict the scope of section 5322(a)(4), I note that the principle articulated in Schwilm is dictum and need not be followed by this court. Schwilm, supra, 661 F.2d at 15 (citing only products liability cases). See Dollar Savings Bank, supra, 746 F.2d at 212 (concluding that, for purposes of minimum contacts analysis, foreseeability is conduct and connection with the forum such that it is reasonable for the non-resident to expect to be haled into court there). Although this court finds it “clearly foreseeable” that a corporate officer could be held liable for harm resulting from tortious conduct, it is not “reasonable” for that same individual to anticipate that he will be haled into any court in every forum in which the corporation transacts business.

Furthermore, I do not accept the Donner court’s conclusion that a court can infer personal jurisdiction from the substantive allegations contained in a complaint. See 480 F.Supp. at 1234. While the rule of joint tortfeasor liability may make it economically advantageous to allow the maintenance of suit against both a corporation and its officers or directors in one court, the policy of judicial economy cannot be addressed in a vacuum. The principles of due process mandate that a court focus on the hardship of forcing a non-resident defendant to litigate in a distant forum. Nor may the court rule on the sufficiency of the cause of action as it would in a motion under Fed.R.Civ.P. 12(b)(6); rather, it must determine whether the plaintiff has established minimum contacts by a preponderance of the evidence under Rule 12(b)(2). See Time Share, supra, 735 F.2d at 66-67 n. 9. Therefore, I hold that a plaintiff seeking to establish personal jurisdiction over an individual corporate officer or director on the basis of tortious conduct committed in the exercise of his corporate duties must prove, by a preponderance of the evidence, that the non-resident officer or director independently has sufficient forum-related contacts.

Applying this principle to the facts of this case, I find that Simkins has failed to sustain its burden of proof. Plaintiff has failed to allege that defendants Ewart, Stern and Pechenik committed any tort in their individual capacity. See Complaint at ¶¶ 18-31, 41-49. See also Stop-A-Flat, supra, 507 F.Supp. at 651. He has failed to allege that the individual defendants are the “alter egos” of the corporations which they represent. See, e.g., Great American Enterprises, supra, slip op. at 4. Moreover, plaintiff does not even argue that these defendants performed any activity in the forum or performed any activity directly related to the forum.

On the other hand, Ewart has presented an unrefuted affidavit that he has had no contact with the forum in either his individual or his corporate capacity. Even Paramount, the corporation in which he is a shareholder, has no connection with this forum. See Affidavit of Ewart at MI 2, 3, 5 & 6. See also Time Share, supra, 735 F.2d at 66 n. 9 (indicating that, if insufficient minimum contacts on part of corporation, no jurisdiction over individual sued personally for actions taken as a corporate officer). As to Stern, there is also unrefuted evidence that he has had no contact with the forum in either his individual capacity or his corporate capacity with Gourmet. See Affidavit of Stern at ¶¶ 2, 3, 4, & 5. Simkins has established that Pechenik has had contacts with Pennsylvania in his corporate capacity. See Affidavit of Pechenik at ¶¶ 4, 5; Affidavit of Simkins at ¶ 2. However, plaintiff has not demonstrated any contact between the forum and Pechenik while he was acting in his individual capacity. It would be fundamentally unfair to assert personal jurisdiction over him on this basis alone.

While this court retains jurisdiction over Gourmet, I find that none of the movantdefendants could reasonably anticipate being haled into court in Pennsylvania. Accordingly, I find that this court may not constitutionally exercise in personam jurisdiction over Paramount, Greenberg, Ewart, Stern and Pechenik. Therefore, the defendants’ motion is granted.

      . Gourmet has voluntarily submitted to the jurisdiction of this court by appearance. See Defendants’ Memorandum in Support of Its Motion to Dismiss at 1 n. 1.

      . In its complaint, Simkins also asserted personal jurisdiction over the individual defendants by virtue of 42 Pa.Cons.Stat.Ann. 5301. See Complaint at ¶ 10. Each of the movant-defendants has filed an affidavit which presents unrefuted evidence that he was not a domiciliary of Pennsylvania at the time the complaint was filed, that he did not consent to be sued in Pennsylvania, and that he was not served with process within this jurisdiction. Therefore, plaintiff may not rely upon this provision of the Pennsylvania long-arm statute for the assertion of personal jurisdiction over the individual defendants.

      . Plaintiff alleges that its efforts to obtain favorable jurisdictional facts during the discovery period was stymied by the defendants' failure to comply with its discovery requests. To this end, plaintiff filed a Motion to Compel the Production of Documents one day after the close of the limited discovery period. This motion is also before the court. In responding to plaintiffs motion, this court first notes that the parties used the opportunity to conduct discovery into the issue of personal jurisdiction not to enhance the quality of their respective briefs, but rather, to exchange unnecessary rhetoric. This court will deny plaintiff’s motion for the following reasons: (1) the motion was filed after the close of discovery; (2) plaintiff failed to comply timely with Rule 24(f) of the Local Rules of Civil Procedure; and (3) plaintiff has failed to refute defendants’ evidence that plaintiff caused its own delay in the discovery process. See Letter from Windt to Swift dated October 15, 1984, attached to Plaintiff's Supplemental Memorandum Against Defendants’ Motion to Dismiss. Therefore, this court finds that any alleged noncompliance with plaintiff's discovery requests is irrelevant to its determination of the 12(b)(2) petition.

      . The plaintiff in this case has made this distinction even greater by converting what is in essence a single contract claim into a multiple-count tort and contract action. Plaintiffs efforts seem to be directed at gaining a foothold in the assets of the allegedly insolvent debtor-defendant, Gourmet. The contact with the forum in this case is even more attenuated than the paradigmatic "tort out/harm in” case involving a defective product shipped into the forum and causing injury to a forum citizen.

      . Since this court concludes that it does not have personal jurisdiction over the movant-defendants on other grounds, it need not address the issue of whether the tort cause of action asserted against defendants Paramount, Green-berg, Ewart and Stern is recognized under Pennsylvania jurisprudence or any other state’s substantive law which might be found applicable. See Ceco Corp. v. Bar-Jay Assoc., Inc., 68 Pa.D. & C.2d 674, 679-81 (Dauphin 1974) (recognizing that corporate officers or directors owe a fiduciary duty to creditors such as Simkins); Moore v. Industrial Valley Bank & Trust Co., slip op. at 2-3 (E.D.Pa. December 16, 1981) (Ditter, J.) (federal court citing Ceco, supra, recognizes the existence of such a cause of action in Pennsylvania).

      . See note 6 supra.

      . In Techno, plaintiff produced evidence demonstrating that (1) the individual defendants were directly aware that they were dealing with a Pennsylvania corporation and (2) the defendants and plaintiff were involved in a five-year buyer/seller relationship which involved significant forum contact by the individual defendants. 535 F.Supp. at 304, 309, 309 n. 1. However, in the case before me, plaintiff has failed to produce any evidence of a contract between Gourmet and Simkins or of any continuous and substantial relationship between the individual defendants and Simkins. See discussion supra.

      . Even if I were to consider the actions of Pechenik in his corporate capacity, the mere placing of phone calls into the forum state has not generally been held sufficient to constitute "purposeful availment." See, e.g., Compagnie des Bauxites, supra, 651 F.2d at 889; Bucks County Playhouse, supra, 577 F.Supp. at 1209.


author: EDELSTEIN, District Judge:

text:
    Frances ZANGRILLO, Plaintiff, v. FASHION INSTITUTE OF TECHNOLOGY and United College Employees, Defendants.
    No. 83 Civ. 6589 (DNE).
    United States District Court, S.D. New York.
    Jan. 28, 1985.

      Jose A. Rivera, Brooklyn, N.Y., of counsel, for plaintiff.
    Phillips, Nizer, Benjamin, Krim & Ballon, Marc L. Silverman, New York City, of counsel, for defendant Fashion Institute of Technology.
    James R. Sandner, Susan Bloom Jones, New York City, of counsel, for defendant United College Employees.
   OPINION AND ORDER

EDELSTEIN, District Judge:

In September of 1983, plaintiff brought this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., against her employer, Fashion Institute of Technology (“FIT”), and her union, United College Employees (“UCE”). By Memorandum Endorsement dated March 8, 1984, Judge Kevin Thomas Duffy granted plaintiff leave to amend her complaint to add a cause of action under 42 U.S.C. § 1983 against both defendants and a cause of action under Title IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681 et seq., against defendant FIT. The amended complaint alleges that defendants denied plaintiff seniority rights accumulated while absent from work on maternity leave.

Defendants have moved to dismiss the complaint, pursuant to Fed.R.Civ.P. 12(b)(6). Defendants contend that the cause of action under Title VII is time barred because plaintiff failed to file a timely charge with the Equal Employment Opportunity Commission (“EEOC”). Defendants also contend that the cause of action under 42 U.S.C. § 1983 is barred by New York’s three year statute of limitations. Finally, defendant FIT contends that the court lacks jurisdiction over it under Title IX of the Education Amendments of 1972.

FACTUAL BACKGROUND

The complaint sets forth the following facts which, for purposes of the motion to dismiss, are deemed true.

Plaintiff has been employed by FIT as a teacher since 1956 and received tenure in 1962. She spent 1963 through 1965 on maternity leave and returned to teaching on a part-time basis in 1965. Defendants’ actions with regard to this two year maternity leave are the subject of this action.

Plaintiff was assigned as an Adjunct Assistant Professor, effective September, 1967. In February of 1968, upon completion of the Fall semester, plaintiff was “dropped” by the Fashion Design Department (“the department”) at FIT, purportedly because there were no openings. Plaintiff alleges that at this time, part-time untenured teachers were retained in the department. Plaintiff’s discharge on February 1, 1968 is the first discriminatory act alleged in the amended complaint.

Plaintiff was reinstated in the department with continuous seniority and tenure in February of 1973. During that year, however, FIT and UCE entered into a collective bargaining agreement that prohibits the accrual of seniority credit for programming purposes during maternity leaves. Plaintiff alleges that because of this collective bargaining agreement, FIT failed to pay her a proper salary consistent with a continuation of. her seniority and tenure. In June of 1973, plaintiff filed a grievance with UCE. In March of 1976, the arbitrator presiding over the grievance proceedings ruled that plaintiff, by her absence, had constructively resigned and thus her subsequent reinstatement was subject to the discretion of FIT. FIT’s denial to plaintiff of salary and other fringe benefits upon her reinstatement in February of 1973, constitutes the second discriminatory act alleged.

Plaintiff further alleges that although she was denied salary and other benefits by FIT, she did not lose her rank for purposes of program assignments in the department. However, on June 9, 1975, UCE filed a grievance with FIT charging that the department’s program assignment for the year 1975-76 violated the collective bargaining agreement, by crediting individuals, such as plaintiff, for time spent on maternity leave. Effective February 1, 1977, a new seniority list was established based on actual teaching service instead of initial date of hire seniority. The grievance filed by UCE on June 9, 1975, constitutes the third discriminatory act alleged.

On January 9, 1977, plaintiff filed a charge of employment discrimination with the EEOC. Amended Complaint at T[ 7. On June 11, 1983, plaintiff received a right-to-sue letter issued by the EEOC. Id. at ¶ 8.

DISCUSSION

The Title VII Claim.

Section 706(e) of the Civil Rights Act of 1964, as amended, provides that the EEOC charge “shall be filed by or on behalf of the person aggrieved within 300 days after the alleged unlawful employment practice occurred.” 42 U.S.C. § 2000e-5(e). Plaintiff’s entitlement to relief under Title VII is predicated on the filing of a timely charge with the EEOC. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982).

The first step in determining whether plaintiff has filed a timely charge is to determine when the period for filing of the EEOC charge commenced. This requires the court to “identify precisely the ‘unlawful employment practice’ of which [plaintiff] complains.” Delaware State College v. Ricks, 449 U.S. 250, 257, 101 S.Ct. 498, 503, 66 L.Ed.2d 431 (1980). The gravaman of the amended complaint is that plaintiff was denied seniority credit for time spent on maternity leave and for child rearing. In her complaint before the EEOC, plaintiff alleged that the unlawful act is the “1975 collective bargaining agreement, entered into by the [defendants, which] takes away from women seniority accrued while on maternity.” Defendants contend that the last “unlawful employment practice” complained of occurred on June 9, 1975, when the UCE filed a grievance against FIT. Plaintiff contends that the last “unlawful employment practice” occurred on February 1, 1977, when FIT established a new seniority list based on actual teaching service, as opposed to initial date of hire.

Because the EEOC charge was filed on January 7, 1977, “the Court must find that the alleged discriminatory acts occurred on or before that date.” Vogel v. Torrance Bd. of Ed., 447 F.Supp. 258, 262 (C.D.Cal.1978). Plaintiff, in order to comply with Section 706, must allege discriminatory events occurring within the 300 days preceding January 7, 1977. As to the alleged discriminatory act of February 1, 1977, plaintiff has not filed an EEOC charge. Because the filing of an EEOC charge is a jurisdictional prerequisite to a Title VII action, the court cannot consider the alleged discriminatory act of February 1, 1977. Id. at 262 n. 15. '

Even if the court could consider acts by the defendants allegedly committed after the EEOC charge was filed, plaintiff still would have failed to satisfy the 300 day requirement. It is apparent from the face of the complaint, plaintiffs own actions, and the affidavits and exhibits submitted on behalf of defendants, that the February 1, 1977 publication of the program assignments was not an “independent act of discrimination,” Delaware State College v. Ricks, supra, 449 U.S. at 257 n. 8, 101 S.Ct. at 1132 n. 8, but that plaintiff was aware of FIT’s policy regarding maternity leave no later than June 9, 1975. In paragraphs 26 and 28 of the amended complaint plaintiff cites the June 9, 1975 “union grievance” as the act which denied plaintiff the “benefits of the assignment of program policy in the Fashion Design Department.” Moreover, plaintiff filed: (1) a grievance to reverse the UCE’s grievance on July 15, 1975; (2) charges based on the same facts with the New York State Division of Human Rights on August 15, 1975; and (3) an EEOC charge on January 7, 1977, a month earlier than the publication of the “official” seniority list. Under Ricks, supra, plaintiff was required to file the EEOC charge 300 days after June 9, 1975, the date when FIT and UCE “made and communicated” the decision to deny seniority rights.

The second step in determining whether plaintiff filed a timely charge with the EEOC is to determine whether plaintiff has alleged a “continuing violation.” Plaintiff alleges that since her reinstatement in 1973, she was discriminated against in every paycheck and in her low position for assignment of program purposes. Taking these allegations as true, plaintiff has not sufficiently alleged a continuing violation.

In Collins v. Manufacturers Hanover Trust Co., 542 F.Supp. 663 (S.D.N.Y.1982), this court stated that when “there is a ‘reasonable ascertainable date on which the act occurred, that is the day on which the statute began to run,’ notwithstanding that plaintiff may still feel some effects as a result of the prior discriminatory acts.” Id. at 670 (quoting Marshall v. American Motors Corp., 475 F.Supp. 875 (E.D.Mich. 1979). See also Ganguly v. New York State Dep’t of Mental Hygiene, 511 F.Supp. 420, 427 (S.D.N.Y.1981) (plaintiff must allege continuing violations, not merely the results of past violations, in order to obtain relief for otherwise time-barred acts). The rationale behind the statutory period is to “protect employers from the burden of defending claims arising from employment decisions that are long past.” Ricks, supra, 449 U.S. at 256-57, 101 S.Ct. at 503.

On the face of the complaint, the “reasonable ascertainable date[s] on which the act occurred” are June of 1973 and June 9, 1975. Any other “acts” alleged by the plaintiff are merely the effects of these two acts. UCE’s and FIT’s decision to compensate plaintiff and to assign programs based on actual teaching service had “long past” by the time plaintiff filed her EEOC charge in January of 1977. Accordingly, plaintiff's cause of action under Title VII must be dismissed.

The 42 U.S. C. § 1983 Claim.

Defendants contend that the § 1983 claims are barred by the statute of limitations.

Because 42 U.S.C. § 1983 contains no statute of limitations, the limitations period applicable to § 1983 actions is determined by reference to state law. Fiesel v. Board of Educ. of City of N. Y., 675 F.2d 522, 524 (2d Cir.1982). The appropriate statute of limitations for § 1983 actions brought in New York is Section 214(2) of the New York CPLR, which provides a three year limitations period for actions “to recover upon a liability, penalty or forfeiture created or imposed by statute ..., N.Y. CPLR § 214(2) (McKinney Supp.1983-84). Pauk v. Board of Trustees of the City Univ. of N.Y., 654 F.2d 856, 861 (2d Cir.1981), cert. denied, 455 U.S. 1000, 102 S.Ct. 1631, 71 L.Ed.2d 866 (1982). The cause of action accrues and the three year limitations period begins to run “when the plaintiff knows or has reason to know of the injury that is the basis of the action.” Id. at 859. Based on the allegations in the complaint, plaintiff knew of FIT’s alleged improper denial of seniority benefits and UCE’s efforts to enforce compliance with the collective bargaining agreement by 1975. Because this action was not commenced until September 28, 1983, it is barred by the statute of limitations. Id. Even assuming, arguendo, that defendant FIT committed an additional and distinct wrongful act in February of 1977, plaintiff’s § 1983 claim is still untimely.

Plaintiff in her “letter brief” contends that the statute of limitations question boils down to “one very simple question ...: does this claim under § 1983 fall under the relation-back doctrine such as to become part and parcel of the original complaint.” Plaintiff, however, clearly has misstated the issue, because plaintiff’s claims are time-barred even under the relation-back doctrine. Fed.R.Civ.P. 15(c) provides that “[wjhenever the claim or defense asserted in the amended pleadings arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.” The original complaint was filed on September 28, 1983. Even if the court “relates-back” the amended complaint to the original complaint, plaintiff’s § 1983 cause of action is still barred by the statute of limitations.

Moreover, there is no basis for tolling the statute of limitations period applicable under 42 U.S.C. § 1983 from the time plaintiff filed her Title VII EEOC claim in 1977. In Board of Regents v. Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980), the Supreme Court held that the New York rule against tolling for the time a plaintiff pursues a related but independent cause of action in state courts is applicable to suits brought under 42 U.S.C. § 1983. The plaintiff in Tomanio was a chiropractic practitioner who brought an action in New York State Court for redress of a decision by New York’s Board of Regents denying her request for a waiver of professional licensing examination requirements. The Court held that the state judicial remedy was entirely “separate and distinct” from the federal remedy under 42 U.S.C. § 1983, and therefore, that New York’s tolling provisions were not inconsistent with provisions and policies of § 1983.

In Johnson v. Railway Express Agency, 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975), the Supreme Court held that although the remedies under Title VII and 42 U.S.C. § 1981 are related, the two causes of action are separate, distinct and independent.” Id. at 461, 95 S.Ct. at 1720. Therefore, the Court held that the limitations period applicable under 42 U.S.C. § 1981 is not tolled by the filing of an EEOC charge. Similarly, in Burnett v. Grattan, — U.S. -, 104 S.Ct. 2924, 82 L.Ed.2d 36 (1984) the Court reaffirmed its long standing position that the causes of action provided in the Civil Rights Acts “exist independent of any other legal or administrative relief that may be available as a matter of federal or state law.” Id. 104 S.Ct. at 2930.

Under the Court’s holdings in Tomanio, Johnson and Burnett, supra, plaintiff’s cause of action under 42 U.S.C. § 1983 is “separate, distinct and independent” from her cause of action under Title VII. See An-Ti Chai v. Michigan Technological Univ., 493 F.Supp. 1137, 1144 (W.D. Mich.1980) (no basis for distinction between cause of action brought under 42 U.S.C. § 1983 and cause of action brought under § 1981, which, under Johnson, supra, is independent from cause of action under Title VII). Accordingly, New York’s rule against tolling during the period plaintiff pursues independent remedies must be applied. Plaintiff’s § 1983 claim is therefore barred by New York’s statute of limitations.

The Education Amendment Act of 1972 Claim.

Title IX of the Education Amendment Act of 1972, Section 901(a), provides in pertinent part:

No person in the United States shall, pn the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance, ...

20 U.S.C. § 1681(a). Under the Supreme Court’s decision in Grove City College v. Bell, — U.S. -, 104 S.Ct. 1211, 79 L.Ed.2d 516 (1984), Title IX covers only those programs that receive federal financial assistance. Defendant FIT contends that plaintiff’s cause of action under Title IX must be dismissed because plaintiff has failed to plead that FIT receives any federal financial assistance.

Plaintiff, in the letter brief submitted by counsel, has failed to address the issue under Title IX. Accordingly, the court deems her to have conceded that FIT receives no Federal financial assistance within the meaning of the statute. Indeed, in March of 1984, the United States Department of Education dismissed plaintiff’s administrative complaint, based on its determination that “department of Fashion Design — Apparel, FIT, does not receive Federal financial assistance.” Exhibit 3 to Affidavit of Mare L. Silverman. Because plaintiff has neither pleaded nor demonstrated any nexus between Federal financial assistance and the Fashion Design Department at FIT, the Title IX count must be dismissed.

CONCLUSION

Defendants’ motion to dismiss the amended complaint is granted in all respects. The amended complaint is dismissed in its entirety.

SO ORDERED.

      . Judge Duffy’s endorsement did not address any of the issues presently before this court. He granted plaintiff leave to amend without regard to whether the § 1983 claims would be time-barred and whether the court had jurisdiction over plaintiff’s claims brought under 20 U.S.C. § 1681.

      . Plaintiffs attorney filed his opposing papers to the instant motion several weeks late. These "papers” consist of a two page "letter brief" in which no case authority is cited in support of plaintiff’s contentions. In addition, plaintiff submitted no affidavit supporting her position. The court granted defendants’ request to reply to plaintiff’s "letter brief.” Plaintiff has not requested leave to file a sur-reply.
      On page one of the “letter brief,” plaintiff contends that the statute of limitations question is "premature." By this contention, plaintiff presumably means that there is insufficient information before the court as to the circumstances surrounding plaintiffs claims. Based on the affidavits, exhibits and memorandum submitted by the defendants, the court is well-equipped to decide the issue at this juncture. However, if the court were faced with a lack of information it would be due to the failure of plaintiffs counsel to abide by the local rules. It would be inequitable to the defendants to allow plaintiff's counsel to reap the benefits of his careless, if not dilatory, litigation practices.

      . Defendant FIT has submitted the affidavit of Hilde Jaffe, Dean of the Art and Design Division of FIT, sworn to December 26, 1984 (Jaffe Affidavit). Ms. Jaffe states that under the 1972-1975 Collective Bargaining Agreement, a faculty member’s seniority for selecting programs was to be based on actual full-time teaching service, without credit for maternity and other unpaid leaves of absence. She also states that plaintiff was aware that the department intended to abide by the terms of the collective bargaining agreement since April 7, 1975. On August 25, 1975, when all the faculty had returned from summer vacation, Ms. Jaffe called a department meeting in which she announced that the program assignments for the Fall 1975 semester were to be reassigned in accordance with the collective bargaining agreement. However, because classes were about to start and the faculty had already prepared their programs, she and the faculty decided that programs not be reassigned at that late date. However, Ms. Jaffe "made clear that the Spring 1976 programs would be assigned in accordance with a seniority list based on actual teaching service, and not on initial dates of hire.” Jaffe Affidavit at 5.
      Ms. Jaffe further states that the seniority list published on February 1, 1977 did not change the assignment of rankings that had been in effect since 1975, but merely was the first college-wide, rather than strictly departmental seniority list. Indeed, in her charge before the EEOC, filed before the publication of the February 1, 1977 list, plaintiff alleged that by the collective bargaining agreement of 1975 defendants had deprived her of seniority rights. See Exhibit D to UCE’s Motion to Dismiss. Thus, the court finds incredible plaintiff’s allegation that it was the publication of the February, 1977 list that made her aware of defendants’ decision to assign programs based on actual time of service. In any event plaintiffs lower ranking for programming purposes was merely an effect of FIT’s earlier communicated decision to deny plaintiff seniority rights. The programming schedule "is a delayed, but inevitable, consequence” of the denial of seniority rights. Ricks, supra, 449 U.S. at 257-58, 101 S.Ct. at 503-04.

      . See supra note 3.

      . Defendant UCE contends that the limitations period applicable to plaintiff’s claim against the union for breach of its duty of fair representation is four months. Because the plaintiff’s claims are clearly barred even under the three years limitations period, the court does not reach this contention.