author: HARGROVE, District Judge.

text:
    FEDERAL ELECTION COMMISSION, Petitioner, v. CITIZENS FOR FREEMAN, Respondent.
    Civ. A. No. HAR 84-4496.
    United States District Court, D. Maryland.
    Feb. 19, 1985.
    As Amended March 14, 1985.
    Charles N. Steele, Gen. Counsel, Richard B. Bader, Asst. Gen. Counsel, Anne A. Weissenborn, Washington, D.C., for petitioner.
    Patrick J. Moran, Rockville, Md., James F. Schoener, Washington, D.C., Mayer Morganroth, Southfield, Mich., for respondent.
   MEMORANDUM-OPINION AND ORDER

HARGROVE, District Judge.

This order is the result of a hearing and oral argument which took place on Friday, January 18, 1985, concerning a Petition by the Federal Election Commission for an Order to Show Cause why a subpoena and order for written answers to various questions and compelling the production of documents issued pursuant to 2 U.S.C. § 437d(a)(3) (1974) to the Citizens for Freeman Campaign Committee should not be enforced. This Court hereby orders that the subpoena be enforced.

A July 1, 1983, letter of complaint filed pursuant to 2 U.S.C. § 437g(a)(l) (1972) by United States Representative Barbara A. Mikulski notified the Federal Election Commission (FEC) of possible irregularities in the financial management of the Citizens for Freeman (CFF) election campaign. On July 12, 1983, the FEC notified CFF of the complaint pursuant to 2 U.S.C. § 437g(a)(2) (1972), enclosing a copy. The complaint alleged violation of 2 U.S.C. §§ 432 and 434 (1972) based on personal observations of Ms. Mikulski and several newspaper articles written by an investigative reporter.

On October 27, 1983, the FEC reviewed the allegations in the complaint and determined, by an affirmative vote of 6-0, that probable cause to investigate 3 violations existed. The first alleged violation was unlawful in-kind contributions of solicitation costs from representatives of Fusion magazine, the Fusion Energy Foundation, Inc., and The Executive Intelligence Review magazine, Campaigner Publications, Inc. 2 U.S.C. § 441b (1976). The second was failure to report contributions from individuals who did not intend to make contributions to CFF and failure to report in-kind contributions of staff services from the National Anti-Drug Coalition. 2 U.S.C. § 434(b)(2) (1972). Finally, monies expended by the aforementioned individuals were allegedly expended for purposes other than contributing to CFF. 2 U.S.C. § 434(b)(3) (1972).

On November 1, 1983, CFF was notified of the FEC determination of probable cause to investigate. CFF was given 10 days pursuant to 2 U.S.C. § 437d(a)(l) (1974) to submit materials relevant to this determination and, assured by the FEC, according to 2 U.S.C. § 437g(a)(4)(B) and (12)(A) (1972), that the investigation would remain confidential unless the CFF notified the FEC in writing that the investigation need not remain confidential. Also, the FEC Office of the General Counsel authorized FEC to advise CFF that production of this information could result in settlement through conciliation, pursuant to 2 U.S.C. § 437d(a)(10) (1974), and obviate the need for an investigation to determine probable cause to bring charges. If CFF did not comply, the FEC would initiate an investigation and proceedings to acquire necessary information. 2 U.S.C. § 437d(a)(3) (1974).

The FEC initiated an administrative investigation on November 29, 1983. The issuance of a subpoena to CFF to produce documents and other materials and to answer written interrogatories was authorized on December 2,1983, in accordance with 2 U.S.C. § 437d(a)(3) (1974). The subpoena was forwarded to CFF on January 5, 1984, requiring a response in 10 days.

On January 20, 1984, CFF requested an extension to February 13, 1984, to answer the written interrogatories. CFF responded, in part, on February 14, and indicated by their response that they would be willing to supply the remaining information upon receipt of justification of the scope of the request from FEC. The sole ground for CFF’s refusal was that the interrogatories and requests for documents, as propounded, were overly broad and not relevant to the investigative purpose. Because of the relatively cooperative tenor of CFF’s response, the FEC chose to address the objection on April 24, 1984.

Having received no response from CFF by September 18,1984, the FEC, again by a 6-0 affirmative vote, authorized the initiation of a Show Cause Petition against CFF to enforce the subpoena of January 5, 1984. A show cause date was set by the court for January 4, 1985. On December 20, 1984, an order to amend the show cause date to January 18,1985 was entered and the hearing was held.

II

At oral argument, Respondent (CFF) contended that there was insufficient cause for enforcement of the subpoena on two grounds. The first was that the FEC had taken too long to require compliance in violation of 2 U.S.C. §§ 431 et seq. Although there are a few specific time limits established in various sections of the Federal Election Campaign Act (Act), none have been violated by the FEC. An examination of the facts on the record set out above shows that any significant delay is attributable to CFF’s actions and not to any malice on the part of the FEC. A perusal of the statutory sections reveals that there is no relevant six month time limit as contended by CFF. Throughout the Act, the FEC is required to move “expeditiously” and to “encourage voluntary compliance.” 2 U.S.C. § 437d(a)(10) (1974). It has been amply demonstrated on the record and at oral argument that the FEC did everything it could to allow CFF to comply by granting extensions, clarifying issues, and delaying the issuance of authorized orders and still act expeditiously. CFF’s refusal to respond or to answer at all is what created the most significant delays. Contrary to CFF’s claims at oral argument, this does not constitute a “fishing expedition.” The FEC’s inquiries are well within the scope of their authority and are the equivalent to discovery in civil matters.

The second ground presented by CFF for insufficient cause was that the subpoena was overly broad and thus violated CFF’s First Amendment rights. Over-breadth in the investigative stage is difficult to prove given the wide scope of the language of 2 U.S.C. § 437g(a)(2) (1972). The FEC is investigating a possible violation. This is a matter of considerably broader scope than the investigation of specific facts pertaining to specific charges, which would create specific parameters. All that is required is that (1) the inquiry was proper; (2) the information sought is “reasonably relevant” to the matter involved; and, (3) that the information requested be within the “broad scope” of investigations which is granted in 2 U.S.C. § 437g(a)(2) (1972), once there has been a finding of reason to believe a violation has occurred. Federal Election Commission v. Citizens for La Rouche, Misc. Action No. 80-0203 (D.D.C., September 30, 1980); United States v. Morton Salt Co., 338 U.S. 632, 652, 70 S.Ct. 357, 368, 94 L.Ed. 401 (1950).

The inquiry here was proper. It was initiated pursuant to 2 U.S.C. § 437g(a)(l) and (2) (1972). 2 U.S.C. § 437g(a)(l) (1972) states, “Any person who believes a violation of this Act ... has occurred may file a complaint with the Commission ... in writing, ... signed and sworn to by the person filing the complaint, and [it] shall be notarized.” Representative Mikulski filed a complaint which met these requirements in full on July 1, 1983. 2 U.S.C. § 437g(a)(2) (1972) reads, “The Commission, upon receiving a complaint under paragraph (1), and if it has reason to believe that any person has committed a violation of this Act ... shall notify the person involved of such alleged violation and shall make an investigation of such alleged violation(s) ____” CFF was notified by letter, with a copy of the complaint, on July 12, 1983. After a preliminary investigation, the Commission found it had “reason to believe” a violation may have occurred on October 27, 1983, and began an investigation of those alleged violations on November 29, 1983. The subpoena and order were properly issued in compliance with 2 U.S.C. § 437d(a)(3) (1974), which states, “[t]he Commission has the power ... to require by subpoena ... the attendance and testimony of witnesses and the production of all documentary evidence relating to the execution of its duties____” The FEC exercised this power on December 2, 1983.

The information sought is reasonably relevant to the inquiry involved. The five interrogatories are designed to determine names of parties who were agents of CFF during the 1982 campaign in question and their connection, if any, with the Fusion Energy Foundation, New Solidarity International Press, or the National Anti-Drug Coalition. Since the allegations allege violations involving these organizations, the identification of parties who would have knowledge of the events which may have led to the violation is highly relevant. The documents and materials requested are those which could demonstrate the intent and amount of monies or in-kind contributions these organizations solicited and assigned to CFF, if any. This, too, is highly relevant when the alleged violations are those of misuse of funds and non-reporting of in-kind contributions. The subpoena describes the requested documents sought and states the interrogatories with sufficient specificity to establish relevance. The FEC letter of April 24, 1984, clarifies the questions raised by CFF sufficiently. CFF has not shown that compliance would be overly burdensome. Federal Trade Commission v. Texaco, Inc., 555 F.2d 862 (D.C.Cir.) (en banc), cert. denied, 431 U.S. 974, 97 S.Ct. 2939, 53 L.Ed.2d 1072 (1977). Therefore, the subpoena and order in the instant case is well within the broad investigatory procedures allowed by 2 U.S.C. § 437g(a)(l) and (2) (1972) and 2 U.S.C. § 437d(a)(3) (1974) as cited above.

The subpoena and request for production of documents meets these requirements for compliance. Accordingly, this Court hereby grants FEC’s motion to enforce compliance with the Federal Election Commission’s subpoena of January 5, 1984.


source: Caselaw Access Project

author: ALLEN SHARP, Chief Judge.

license: Public Domain

text:
    Larry J. RYNEARSON, Plaintiff, v. FIRST NATIONAL BANK OF ROCHESTER, Albert M. Price, David E. Hastings, George W. Loughman, State Exchange Bank of Culver, Dale L. Cramer, Robert W. Manuwal, Jack L. Carpenter, Kenneth C. Aemmer, John/Jane Doe # 1 through #100 true Christian names unknown, James J. Fritts (J. Doe #1), T. Edward Ummel (J. Doe # 2), Defendants.
    No. S 84-241.
    United States District Court, N.D. Indiana, South Bend Division.
    Feb. 20, 1985.

      Larry J. Rynearson, pro se.
    Stanley Lawton, Richard A. Smikle, Indianapolis, Ind., William K. Kohn, South Bend, Ind., James S. Downing, Malcolm C. Mallette, Indianapolis, Ind., Lawrence M. Brown, Rochester, Ind., Timothy W. Woods, South Bend, Ind., for defendants.
    T. Edward Ummel, Plymouth, Ind., pro se.
   MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

This cause is before the court on six motions to dismiss of the various defendants. All defendants challenge the merits of the claim presented in plaintiffs complaint and request that this action be dismissed pursuant to F.R.Civ.P. 12(b)(1) for lack of jurisdiction over the subject matter and/or F.R.Civ.P. 12(b)(6) for failing to state a claim upon which relief can be granted. For the reasons stated below, all of the claims against all of the defendants are dismissed pursuant to F.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted.

I.

The facts underlying this suit are as follows. On or about September 30, 1974, plaintiff entered into a real estate mortgage agreement with the First National Bank of Rochester (First National) for the sum of $31,400.00. Thereafter, plaintiff procured additional loans from the State Exchange Bank (State Exchange Bank) in Culver, Indiana. On August 16, 1978, he borrowed the sums of $70,000 and $20,000 and on November 24, 1978, he borrowed the sum of $6,500 from State Exchange Bank. Subsequently, these loans, evidenced by separate promissory notes, were consolidated and on November 27, 1981 additional collateral was acquired to secure repayment on the loans. Plaintiff did not repay the loan according to its terms and on October 5, 1983, State Exchange Bank commenced legal proceedings to foreclose the mortgages given as security for the loan and to collect any unpaid balance. Suit was instituted in the Fulton County Circuit Court, Cause No. 83-289, State Exchange Bank v. Larry J. Rynearson and Bethany A. Rynearson and First National Bank of Rochester, Indiana. First National was named defendant in the foreclosure action because it held the first mortgage on the real estate in question. It filed a cross-claim to protect its first mortgage interest.

The Fulton County Circuit Court entered judgment for State Exchange Bank on February 14, 1984 and ordered that the mortgages sued upon by State Exchange Bank and First National be foreclosed. Pursuant to this order, plaintiffs property was sold by sheriffs sale on April 23, 1984 to James J. Fritts.

On April 18, 1984 plaintiff, Larry Rynearson, filed a complaint in this court alleging a cause of action under the following statutes: 18 U.S.C. § 241; 18 U.S.C. § 242; 42 U.S.C. § 1983; 42 U.S.C. § 1985; 42 U.S.C. § 1986; 28 U.S.C. § 1331; and 28 U.S.C. § 1343. Plaintiff claims the defendant banks and their officers and agents breached contracts with the plaintiff regarding the loan of money (Count One), perpetrated a fraud on the plaintiff under the loan contracts (Count Two), charged usurious interest notes on the monies loaned (Count Three), and conspired against the plaintiff to take actions to harm him (Count Four). All four counts of plaintiffs complain stem from a primary claim that defendants did not actually loan plaintiff lawful or legal tender but merely granted him “bank credit.” Plaintiff “demands that the judgments of State Exchange Bank and First National in Cause # C 83-289 in the Fulton County Court be declared ‘ultra vires’ illegal, null and void and dismissed with prejudice,” and further seeks compensatory, exemplary and punitive damages.

In his amended complaint, plaintiff claims that defendant, Dale L. Cramer, an alleged officer or agent of State Exchange Bank conspired with newly named defendant, Edward T. Ummel (Ummel), an attorney alleged to have prosecuted a foreclosure action against the plaintiff on behalf of State Exchange Bank and newly named defendant, James T. Fritts (Fritts), the alleged purchaser of plaintiff’s foreclosed property at a Sheriff’s Sale, to deprive plaintiff of his property, under color of law, despite having received notice of this pending lawsuit. Plaintiff further alleges Cramer maliciously conspired with Ummel to have the Fulton County (Indiana) REMC shut off the electrical power to plaintiff’s property which had been foreclosed. Moreover, contemporaneous with the filing of this lawsuit, plaintiff filed documents called “Common Law Liens” against the real property of the defendants. Jurisdiction of this court is predicated upon 28 U.S.C. § 1331 and § 1343.

II.

The complaint purports to state an action cognizable under 42 U.S.C. §§ 1983, 1985 and 1986 against the named defendants. The court will address first the section 1983 claims. In order to state a claim under 42 U.S.C. § 1983, a complaint must allege a deprivation of rights, privileges or immunities secured by the Constitution or laws of the United States effected under state law. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981). Having carefully reviewed the pleadings in this case, this court concludes that plaintiff’s complaint is deficient in these two elements. Plaintiff has not alleged a deprivation of a right, privilege or immunity arising under the Constitution or laws of the United States in Counts One, Two, or Three nor has he specifically alleged state action in connection with these imputed deprivations.

This action includes a large cast of defendants with varying degrees of involvement in the conduct forming the basis of this complaint. Plaintiff’s causes of action are all attempts to void his obligation to repay certain loans from State Exchange Bank and to recover loan interest previously paid on the ground that the monies he received did not constitute legal tender and were therefore insufficient consideration for his promise to repay. Plaintiff did not allege that there was any state action involved in the loan activity nor could he make such an allegation. Even though the bank is an entity subject to regulation by the state, such regulation does not convert the bank’s private loan actions to state action. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). Indeed, a state’s acquiescence in banking practices does not make those practices acts under color of state law. Fletcher v. Rhode Island Hospital First National Bank, 496 F.2d 927 (1st Cir.) cert. denied, 419 U.S. 1001, 95 S.Ct. 320, 42 L.Ed.2d 277 (1974). Therefore, any acts of the defendant banks, their officers and agents complained of by plaintiff were not committed by persons “acting under color of state law.”

Plaintiff’s complaint further demonstrates that he is trying to collaterally attack the legal proceedings instituted by State Exchange Bank in the Circuit Court of Fulton County, Cause No. C 83-289, to foreclose the mortgages given as security for such loans. He, again, seeks to find liability on the part of the defendant banks, their officers and agents for their role in these activities. The court, however, finds no merit to this argument. The use of legal proceedings in a state court to collect unpaid loans is not action under color of state law. Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978); Bloomer Shippers Association v. Illinois Central Gulf Railroad Company, 655 F.2d 772, 776 (7th Cir.1981). More specifically, a suit to foreclose and sell land in execution of a judgment does not constitute state action. Earnest v. Lowentritt, 690 F.2d 1198, 1201 (5th Cir.1982).

Moreover, plaintiff fails to allege, with any degree of specificity, the manner in which the individual defendants deprived him of any constitutional right. It is a well established principle of law in this circuit that to recover damages under 42 U.S.C. § 1983, a plaintiff must establish a defendant’s personal responsibility for the claimed deprivation of a constitutional right. Wellman v. Faulkner, 715 F.2d 269, 275 (7th Cir.1983); Duncan v. Duckworth, 644 F.2d 653, 655 (7th Cir.1981); Sulie v. Duckworth, 583 F.Supp. 995, 999 (N.D.Ind.1984). This requirement is satisfied only “if [the defendant] acts or fails to act with a deliberate or reckless disregard of plaintiff’s constitutional rights, or if the constitutional deprivation occurs at [defendant’s] direction or with [defendant’s] knowledge and consent.” Wellman v. Faulkner, 715 F.2d at 275.

In the portion of plaintiff’s complaint labeled “Factual Background” (See complaint, Section IV, pp. 4-11), plaintiff does make allegations with respect to some of the individual defendants. He contends that Albert M. Price represented to him that First National was loaning the sum of $31,500.00 at an interest rate rate of 872%. He further alleges that Jack L. Carpenter represented that State Exchange Bank was loaning to him the sums of $70,000.00, $20,-000.00 and $6,500.00, at the rates of 972%, 10% and 10% respectively. Plaintiff also states that Jack L. Carpenter and Robert W. Manuwal coerced him into consolidating his loans at State Exchange Bank and advancing additional collateral to secure repayments on the loans. None of these allegations evidence a situation in which any particular defendant participates in any deprivation of plaintiff’s constitutional rights.

Counts One, Two, Three or Four of plaintiff’s complaint also fail to state a claim under 42 U.S.C. § 1985. Section 42 U.S.C. § 1985 is derived from section 2 of the Ku Klux Klan Act of 1871. It creates a cause of action based on a conspiracy which deprives one of access to justice or equal protection of law. The only section of § 1985 upon which plaintiff could conceivably base his complaint is section (3) which prevents conspiracies which deprive persons of equal protection or other rights and privileges. To state a cáuse of action under section 1985(3), a complaint must allege that the acts complained of were the product of racial or class based animus. Griffin v. Breckenridge, 403 U.S. 88, 100-02, 91 S.Ct. 1790, 1797-98, 29 L.Ed.2d 338 (1971); Bell v. City of Milwaukee, 746 F.2d 1205, 1233 (7th Cir.1984). The only conceivable argument plaintiff may rely on is that of bias toward plaintiff and others because of their economic views, status or activities. However, conspiracies motivated by this form of bias are not covered by § 1985(3). See United Brotherhood of Carpenters and Joiners of America, Local 610, AFL-CIO v. Scott, 463 U.S. 825, 103 S.Ct. 3352, 3360-61, 77 L.Ed.2d 1049 (1983) (a conspiracy to deny non-union employees and employers of the protection of civil and criminal laws is not covered by § 1985(3) where the conspiracy was motivated by bias against the economic views, status and activities of non-union persons). Because this complaint contains no allegations of racial or class based animus, the 42 U.S.C. '§ 1985(3) claim is unsupportable and will be dismissed.

In addition, plaintiff purports to allege a claim under 42 U.S.C. § 1986. No claim lies under 42 U.S.C. § 1986 in the absence of a valid claim under 42 U.S.C. § 1985. Bell, 746 F.2d at 1233; Williams v. St. Joseph Hospital, 629 F.2d 448, 451-52 (7th Cir.1980). Thus, dismissal of the 42 U.S.C. § 1985(3) claim also requires dismissal of the 42 U.S.C. § 1986 claim.

Finally, in paragraph 23 of the complaint, plaintiff has alleged that defendants State Exchange Bank and Jack L. Carpenter violated the disclosure provisions of the Truth in Lending Act 15 U.S.C. § 1601 et seq. Plaintiff, as proof of such allegation, attached copies of disclosure statements as Exhibit G. However, such exhibit clearly shows that the disclosures were made on August 16, 1978. Any claim plaintiff might have had regarding disclosure is now time-barred by the one year statute of limitations contained in Title 15 U.S.C. § 1640(e). Therefore, plaintiff has failed to state a claim for relief under the Federal Truth in Lending Act.

III.

The court notes the following statements made by plaintiff in his Affidavit in Opposition to Motion to Dismiss filed May 18, 1984:

m. The Doctrine of Absolute Immunity, as applied to judges, exists only when the judge acts within his jurisdiction. There are numerous Supreme Court decisions on this. See Randall v. Brigham, 74 U.S. [7 Wall] 523, 19 L.Ed. 285 or 9 S.Ct. Digest 746.
n. Judge Allen Sharp would therefore, become liable to the Plaintiff for civil damages, if he acted without jurisdiction and dismissed this case without first having preserved the right of trial by jury under the 7th amendment he swore to uphold.

Plaintiff is here advised that this court will not tolerate any threats or forms of intimidation on the part of any party before it. This court has carefully examined the record in this case and has applied well established legal principles. As discussed above, the complaint in this case contains glaring deficiencies. Plaintiff is clearly dissatisfied with the outcome of the suit brought against him by State Exchange Bank in the Circuit Court of Fulton County. However, appropriate methods existed by which he could have challenged that judgment in the court system of the state of Indiana. This court will not allow the improper use of the civil rights statutes to hinder these defendants in carrying out their rights pursuant to a valid state court judgment and will not permit an end run around state appellate procedures.

Accordingly, it is the order of this court that, pursuant to F.R.Civ.P. 12(b)(6), the motions to dismiss of all the defendants are GRANTED; plaintiffs claims under 42 U.S.C. § 1983, 42 U.S.C. § 1985(3), 42 U.S.C. § 1986 and 15 U.S.C. § 1601 et seq., stated in plaintiffs original complaint as incorporated in plaintiffs amended complaint and paragraphs 10 through 19 of plaintiffs amended complaint are DISMISSED. It is further ordered that costs be assessed against plaintiff. SO ORDERED. Enter February 20, 1985.

      . On May 11, 1984, defendants, State Exchange Bank, Dale L. Cramer, Robert W. Manuwal, Jack L. Carpenter and Kenneth C. Aemmer, filed a motion to dismiss the claims against them pursuant to F.R.Civ.P. 12(b)(1) or 12(b)(6). Plaintiff filed an affidavit in opposition to the motion to dismiss on May 18, 1984 to which these defendants replied on May 24, 1984. At that time, these defendants also filed a motion to impose sanctions against plaintiff for violation of F.R.Civ.P. 11. Defendants, First National Bank of Rochester, Albert M. Price, David E. Hastings and George W. Loughman, filed their motion to dismiss pursuant to F.R.Civ.P. 12(b)(1) and/or 12(b)(6) on January 11, 1984. On June 18, 1984, plaintiff filed an amended complaint adding James J. Fritts and T. Edward Ummel as defendants. Motions to dismiss the amended complaint pursuant to F.R.Civ.P. 12(b)(1) and/or 12(b)(6) were filed on June 27, 1984 by defendants, First National Bank of Rochester, Albert M. Price, David E. Hastings and George W. Loughman, and on July 2, 1984 by defendants, State Exchange Bank, Dale L. Cramer, Robert W. Manuwal, Jack L. Carpenter and Kenneth C. Aemmer. Defendant, James J. Fritts, filed his motion to dismiss the amended complaint on July 5, 1984. Thereafter, the last named defendant, T. Edward Ummel, filed his motion to dismiss plaintiffs amended complaint for lack of subject matter jurisdiction and/or failure to state a claim upon which relief can be granted on July 10, 1984. Pursuant to Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982), this court entered an order on July 13, 1984 giving plaintiff fifteen days to respond to any and all motions to dismiss. In response to such order, plaintiff filed his second objection to the motions to dismiss of all the named defendants on July 26, 1984.

      . The note held by First National was not actually in arrears. See Memorandum in Support of Motion to Dismiss of Defendants First National Bank of Rochester, Albert M. Price, David E. Hastings, and George W. Loughman filed June 11, 1984, p. 1.

      . Plaintiff has also attempted to invoke the jurisdiction of this court pursuant to 18 U.S.C. §§ 241 and 242 and 42 U.S.C. §§ 1983, 1985 and 1986. Title 18 U.S.C. §§ 241 and 242 declare that certain violations of civil rights are criminal offenses. These statutes do not address the issue of a federal court's jurisdiction and in any event these criminal offenses can only be prosecuted by criminal actions initiated by the proper United States authorities and not by a private individual. Similarly, 42 U.S.C. §§ 1983, 1985 and 1986 are post-civil war enactments of 1871 and were enacted as parts of the Ku Klux Klan Act in order to protect certain civil rights, particularly those of black citizens. These statutes are not jurisdictional statutes but rather enabling statutes.

      . Plaintiff claims that these defendants made fraudulent representations to him. He contends that a loan consisting of "bank credit” is not a loan of legal tender and not authorized by the Constitution or any laws. Such a claim is preposterous. Assuming arguendo, that the defendant banks did exceed their lending capacity, plaintiff may not avoid liability for those loans. See Union Gold Mining Co. v. Rocky Mountain National Bank, 96 U.S. (6 Otto) 640, 24 L.Ed. 648 (1878); Municipal Leasing Systems, Inc. v. Northampton National Bank of Easton, 382 F.Supp. 968, 971 (E.D.Pa.1974).

      . Section 42 U.S.C. § 1985 provides:

        Preventing officer from performing duties

      (1) If two or more persons in any State or Territory conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof; or to induce by like means any officer of the United States to leave any State, district, or place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties;

        Obstructing justice; intimidating party, witness, or juror

      (2) If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him or of his being or having been such juror; or if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws;

        Depriving persons of rights or privileges

      (3) If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory to equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case or conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.


author: JAMES R. MILLER, Jr., District Judge.

text:
    Sharon L. ROCKSTROH and Carl R. Rockstroh v. A.H. ROBINS COMPANY, INC. and Hugh J. Davis, Jr., M.D.
    Civ. A. No. M-82-108.
    United States District Court, D. Maryland.
    Feb. 20, 1985.

      Michael A. Pretl, Nicole Schultheis, H. Robert Erwin, Jr., and Pretl & Schultheis, P.A., Baltimore, Md., for plaintiffs.
    Charles P. Goodell, Jr., Susan T. Preston, and Semmes, Bowen & Semmes, Baltimore, Md., for defendant A.H. Robins Company, Inc.
    Joseph G. Finnerty, Jr., Deborah E. Jennings, and Piper & Marbury, Baltimore, Md., for defendant Hugh J. Davis, Jr., M.D.
   MEMORANDUM AND ORDER

JAMES R. MILLER, Jr., District Judge.

Presently pending in this action are several Motions for Summary Judgment filed by defendant, A.H. Robins Company, Inc. (“Robins”) (Paper Nos. 36-45), in which defendant Hugh J. Davis, Jr., M.D., has joined (Paper Nos. 46-55). Plaintiffs have filed answers to these motions (Paper Nos. 63-68), to which Robins has filed replies (Paper Nos. 70 & 75). Plaintiffs have filed also a supplemental memorandum (Paper No. 76), to which Robins has also filed a reply (Paper No. 77). No hearing is necessary to decide the motions. Local Rule 6(E).

I. Statute of Limitations

In four of the cases consolidated for trial in March 1985, defendants have moved for summary judgment based on the statute of limitations. In Rockstroh v. A.H. Robins Co., M-82-108, Manipole v. A.H. Robins, M-83-347, Pearsall v. A.H. Robins Co., M-83-702, and Redmond v. A.H. Robins Co., M-83-1712, defendants assert that the plaintiffs’ causes of action are barred by the statute of limitations (Paper Nos. 42-49). The plaintiffs in these cases have filed an opposition (Paper No. 63).

A. Which Law Applies

In diversity cases such as these, this court must apply the law of the forum state, Maryland, including its choice of law rules. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). In tort actions, Maryland applies the doctrine of lex loci delecti, so that the substantive law of the state where the wrong occurs governs. Hauch v. Connor, 295 Md. 120, 453 A.2d 1207 (1983). See also Pottratz v. Davis, 588 F.Supp. 949 at 951 (D.Md. June 1, 1984); President and Directors of Georgetown College v. Madden, 505 F.Supp. 557, 569 (D.Md.1980), aff'd in part and appeal dismissed in part, 660 F.2d 91 (4th Cir.1981). As to matters of procedural law, however, Maryland law applies the law of the forum. Doughty v. Prettyman, 219 Md. 83, 88, 148 A.2d 438 (1959). See also President and Directors of Georgetown College v. Madden, 505 F.Supp. at 569.

Maryland law governs the applicability of the relevant statute of limitations. Pottratz v. Davis, at 952; Mills v. International Harvester Co., 554 F.Supp. 611, 612 (D.Md.1982); Doughty v. Prettyman, 219 Md. at 88, 148 A.2d 438. Therefore, the characterization, i.e., substantive or procedural, which a Maryland state court would give the statute of limitations of the state whose substantive law applies, is binding on this court. See Pottratz v. Davis, at 952; President and Directors of Georgetown College v. Madden, 505 F.Supp. at 571.

“Under Maryland law, a statute of limitations is generally considered to be procedural. Doughty v. Prettyman, 219 Md. at 88, 148 A.2d at 438. ‘However, when the statute of limitations bars the rights and not merely the remedy, an exception to the general rule applies and the statute of limitations is considered substantive.’ President and Directors of Georgetown College, supra at 571. (Footnote omitted). The statute, if conceived of as a grant of immunity from suit, is also considered to be substantive. President and Directors of Georgetown College, supra at 571.”

Pottratz v. Davis, at 952.

The parties agree that Maryland law governs the limitations issue in Rockstroh, Pearsall, and Redmond. With regard to Manipole, where the alleged wrongs occurred in Florida, defendants assert that the Florida statutes of limitations, F.S.A. §§ 95.11(3) and 95.031(2), should be characterized as substantive law, and that, therefore, Florida law should govern the limitations issue in Manipole. Plaintiff disputes this contention and argues that Maryland law should also govern the limitations issue in Manipole.

In Bauld v. J.A. Jones Construction Co., 357 So.2d 401, 402 (Fla.1978), the Supreme Court of Florida described the applicable Florida statutes as follows:

“Section 95.11(3)(a), Florida Statutes (1975), provides that the limitations period for negligence actions is four years. Section 95.031 deals with the computation of time. It states that ‘[ejxcept as provided ... in these statutes, the time within which an action shall be begun under any statute of limitations runs from the time the cause of action accrues.’ Subsection (1) of Section 95.031 provides, in pertinent part, that ‘[a] cause of action accrues when the last element constituting the cause of action occurs.’ Subsection (2) provides that in actions for products liability, the period runs ‘from the time the facts giving rise to the cause of action were discovered or should have been discovered with the exercise of due diligence,’ but that in any event the action must be begun ‘within 12 years after the date of delivery of the completed product to its original purchaser ... regardless of the date the defect in the product was or should have been discovered.’ ”

Defendants argue that, because the Florida courts have found their limitations statutes to be substantive, this court should apply Florida law for the limitations issue. This argument is misplaced for two reasons. First, the characterization which. Florida courts have given to their statutes is not dispositive. Florida law will govern the limitations issue' in Manipole only if the Florida statutes would be characterized as substantive by Maryland state courts. See Pottratz v. Davis, at 952; President and Directors of Georgetown College v. Madden, 505 F.Supp. at 571. Second, the provision of the Florida statutes, which is arguably substantive under Maryland law, is that part of § 95.031 requiring an action to be brought within 12 years after the date of delivery of the product to its original pui’chaser. This court, however, need not consider whether this provision is substantive or procedural under Maryland law, since defendants do not, and indeed could not, assert that the Manipole action is barred under it. The Manipole suit was filed in 1983, less than 12 years after the 1973 insertion of Mrs. Manipole’s Daikon Shield.

Section 95.11(3) provides that actions for negligence, fraud, and products liability accrue when plaintiff discovers her injury, and that, thereafter, plaintiff has four years within which to institute suit. This statute does not bar a plaintiff’s right, but, instead, merely bars the plaintiff’s remedy if she does not file suit within four years from the time the cause of action accrues. Since § 95.11(3) is similar in concept to the Maryland statute, it is clear that the Florida statute would be characterized under Maryland law as procedural as is the Maryland statute itself. See President and Directors of Georgetown College v. Madden, 505 F.Supp. at 571; Doughty v. Prettyman, 219 Md. at 88, 148 A.2d 438. Accordingly, Maryland law will govern the limitations issue in Manipole as well as in the other cases at issue here.

B. Md.Cts. & Jud.Proc.Code Ann., § 5-204

Before addressing the substantive merits of defendants’ other motions, this court will consider plaintiffs’ contention that under the Md.Cts. & Jud.Proc.Code Ann., § 5-204, Robins cannot invoke limitations as a defense because it did not comply with the requirements of the Maryland Corporations and Associations Article. In that regard, this court will follow the previous holdings of other members of this court that § 5-204 is part of the substantive law of Maryland, even though statutes of limitation are generally considered procedural. Amsler v. A.H. Robins Co., B-82-3295 (D.Md. Oct. 19, 1984) (attached to Paper No. 63 as Exhibit 5); Seigman v. Ortho Pharmaceutical Corp., H-82-1741, slip op. at 4 (D.Md.1984). This finding was explicitly approved by a Maryland state court in Bigelow v. Davis, No. 83-213-002/L-8951 (Circuit Court for Baltimore City, Aug. 14, 1984) (attached to Paper No. 43 as Exhibit 7). Therefore, plaintiffs cannot rely upon § 5-204 in these cases, because the substantive law of Maryland is not applicable to any of these four cases.

C. Maryland Limitations Standard

The applicable statute of limitations is the general three year statute of limitations for civil actions provided in the Md. Cts. & Jud.Proc.Code Ann., § 5-101. As there is no statutory guidance as to when a cause of action accrues, the question of when the action accrues is left to judicial determination. Harig v. Johns-Manville Products, 284 Md. 70, 75, 394 A.2d 299 (1978).

In Poffenberger v. Risser, 290 Md. 631, 431 A.2d 677 (1981), the Maryland Court of Appeals adopted the “discovery” rule for determining when a cause of action accrues. Thus, “the cause of action accrues when the claimant in fact knew or reasonably should have known of the wrong.” 290 Md. at 636, 431 A.2d 677. The court continued that:

“[T]he discovery rule contemplates actual knowledge — that is, express cognition, or awareness implied from ‘knowledge of circumstances which ought to have put a person of ordinary prudence on inquiry [thus, charging the individual] with notice of all facts which such an investigation would in all probability have disclosed if it had been properly pursued.’ ”

290 Md. at 637, 431 A.2d 677 (quoting Fertitta v. Bay Shore Dev. Corp., 252 Md. 393, 402, 250 A.2d 69 (1969)). See also O’Hara v. Kovens, 60 Md.App. 619, 628, 484 A.2d 275 (1984); Lutheran Hospital v. Levy, 60 Md.App. 227, 233, 482 A.2d 23 (1984).

Under Maryland law, the plaintiff must have knowledge not only of the injury, but also that the injury resulted from a wrong. Jones v. Sugar, 18 Md. App. 99, 305 A.2d 219 (1973). Thus, as Judge Black stated in Amsler v. A.H. Robins Co., B-82-3295:

“that the plaintiff knows that he has been injured and that a product may have caused the injury may not be sufficient knowledge to trigger the discovery rule, because the cause of action may only be actionable when the plaintiff learns that the product may be defective or that its manufacturers may have been negligent. Only then does the plaintiff have an injury for which there is a legal remedy.”

Transcript at 5 (Paper No. 63, Ex. 5). The time when the plaintiff becomes aware may depend upon the nature of the injury. The limitations period will run from the time of injury only when the plaintiff knew or should have known that the injury was the result of a wrong.

“In many cases he will or should know at the time of or soon after the wrongful act that he has been the victim of negligent medical care; in other settings of fact it may be impossible for him, as a layman, unskilled in medicine, reasonably to understand or appreciate that actionable harm has been done him. If this is fairly the fact, we think he should have the statutory time from the moment of discovery, the moment he knows or should know he has a cause of action, within which to sue.”

Waldman v. Rohrbaugh, 241 Md. 137, 145, 215 A.2d 825 (1966) (quoted in Jones v. Sugar, 18 Md.App. at 104, 305 A.2d 219).

D. Standard on Summary Judgment

On summary judgment, the moving party has the burden of proving that the material facts, as presented, are not in dispute, and that there can be no reasonable dispute as to the legal conclusions to be drawn from these facts. Adickes v. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Morrison v. Nissan Co., Ltd., 601 F.2d 139, 141 (4th Cir.1979); Carroll v. United Steel workers of America, 498 F.Supp. 976, 978 (D.Md.1980). In deciding the motion, the court must view the facts and the inferences from those facts in the light most favorable to the nonmoving party. Cole v. Cole, 633 F.2d 1083, 1089 (4th Cir.1980). Even where there is no dispute as to the basic facts, summary judgment will be inappropriate if the parties disagree on the inferences which may reasonably be drawn from the undisputed facts. Morrison v. Nissan Co., Ltd., 601 F.2d at 141.

Rockstroh — New York
Manipole —Florida
Pearsall —Pennsylvania
Redmond —Michigan

E. Facts

1. Rockstroh

Plaintiff Rockstroh alleges that her Daikon Shield was inserted in 1973 and that in 1976 she began experiencing fever, vomiting, diarrhea, and severe lower abdominal pains. It is undisputed that her IUD was removed in July, 1976 and that this suit was not filed until January, 1982.

In July, 1976, she was admitted to Geneva General Hospital, where Dr. McCormick removed her IUD (Paper No. 42, Ex. 1). Plaintiff testified that she was told by Dr. McCormick, at that time, that the IUD was causing her infection (id., Ex. 2). She also testified that she was told that there was a chance that she could have problems having children (id., Ex. 3). In 1981, plaintiff saw a newsletter about women who were suing Robins for injuries allegedly caused by the Daikon Shield (id., Ex. 4). Robins asserts that the undisputed evidence indicates that plaintiff knew of her injuries in 1976, and believed these injuries were caused by the Daikon Shield. Furthermore, defendants assert that, because Mrs. Rockstroh testified that as a nurse she understood that IUDs were associated with infections (id., Exs. 5 & 6), she had knowledge from the date of her injuries. Thus, defendants contend, the action was not filed within three years of Mrs. Rockstroh’s discovery of the nature and cause of her injuries.

Plaintiffs assert, however, that when the Daikon Shield was removed from Mrs. Rockstroh, the doctor did not indicate that the injuries were the result of using a defective product (Paper No. 63, Ex. 1). Mrs. Rockstroh asserts that she has had minimal exposure to gynecology in her nursing career and that she did not acquire knowledge that the Daikon Shield may have been defective until 1981, when she read a newsletter published by the National Women’s Health Network (id.). Accordingly, plaintiffs in Rockstroh assert that the action was timely filed in January, 1982.

• 2. Manipole

Plaintiff Manipole alleges that her Daikon Shield was inserted in 1973, and that she began experiencing severe abdominal pain in September, 1974. Her IUD was removed in October, 1974, and the instant suit was filed in February, 1983.

In her deposition, Mrs. Manipole stated that, when her IUD was removed in October, 1974, her physician informed her that the IUD had caused her infection (Paper No. 42, Ex. 1). Robins asserts that this demonstrates that plaintiffs knew of their injuries in 1974 and believed these injuries were caused by the Daikon Shield. Thus, defendants contend, plaintiffs had discovered the nature and cause of their actions at that time, and this action is barred by the statute of limitations.

Mrs. Manipole testified that, when the device was removed, she was not told that it was defective in any way, and she was not told that the Daikon Shield was a dangerous device or that there was a difference between the Daikon Shield and other IUDs (Paper No. 63, Ex. 2). Furthermore, she testified she was never told that the Daikon Shield had been taken off the market. She said she did not learn that other women had suffered injuries as a result pf the Daikon Shield until 1982, when she saw an ad by Dr. Berger and a program on Sixty Minutes (id.). She stated that the first time she ever thought that the Daikon Shield may have been defective was when she saw this ad (id.). Therefore, plaintiffs contend, the complaint was timely filed in February, 1983.

3. Pearsall

Plaintiff Pearsall alleges that her Daikon Shield was inserted in 1973, and that in 1979 she began to experience pain, fever, and tenderness during her pelvic exam. She was treated for pelvic inflammatory disease by .Dr. Gallagher in December, 1979, and her IUD was removed in February, 1980 due to continued pain and fever. On March 4, 1983, she filed this action.

Mrs. Pearsall testified at her deposition that in February, 1980, when her IUD was removed, her physician informed her that the IUD was the cause of her infection (Paper No. 45, Ex. 2). She also testified that on or about 1976 she had read a newspaper article relating to the problems that women were experiencing with the use of the Daikon Shield (id., Ex. 3). Also, she testified that during the mid-1970’s she had learned that the device had been taken off the market (id.). When she was examined by Dr. Gallagher in December, 1979 for her complaint of abdominal pain, she was examined specifically for a problem with the IUD (id., Ex. 7). Finally, Mrs. Pearsall stated that when the device was removed, she understood that the IUD caused her infection, and that in either December, 1979 or February, 1980 her physician had indicated to her that the thread may have acted as a wicking device for bacteria (id., Ex. 8). Defendants assert that this evidence indicates that the Pearsall plaintiffs knew of their injuries and that they believed that these injuries were caused by the Daikon Shield no later than February, 1980. Thus, defendants contend, the complaint filed in March, 1983 is barred by the statute of limitations.

Plaintiffs contend that they were unaware that Mrs. Pearsall’s infection had resulted from the defective nature of the Daikon Shield until sometime after her surgery on March 4, 1980 for pelvic inflammatory disease (Paper No. 63, Ex. 3). Until that time, plaintiffs contend, she did not know that the Daikon Shield was unsafe (id.). Finally, Mrs. Pearsall testified that when she discussed her concerns with Dr. Gallagher, he stated that information he had received from the company indicated that for individuals who were wearing the Daikon Shield and had not experienced problems, it was probably safe for them to continue wearing it (id.). Thus, plaintiffs assert that the complaint, filed on March 4, 1983, was within three years of the time when plaintiffs “discovered” their cause of action and was timely filed.

4. Redmond

Plaintiff Redmond alleges that her Daikon Shield was inserted in 1973 and that in 1976 she began experiencing fever and severe lower abdominal pain. In December, 1976, her IUD was removed, and in May, 1983, plaintiffs filed this action.

Mrs. Redmond testified that she understood that pelvic inflammatory disease was a risk of IUD use (Paper No. 44, Ex. 1). She also stated that two days after her IUD was removed, her doctor insinuated that the IUD was responsible for her infection (id., Ex. 2). She did not investigate her cause of action until she saw a television program on Sixty Minutes, but she apparently was unsure of the date of the program (id., Ex. 3). Finally, she testified that prior to her first ectopic pregnancy in June, 1980, she had read an article concerning the Daikon Shield which had been posted on the bulletin board where she worked (id., Ex. 4). She stated that the article noted that the use of the Daikon Shield was one cause of pelvic inflammatory disease and sterility (id.). Robins asserts that this evidence indicates that the Redmond plaintiffs knew of their injuries in 1976, and believed that these injuries were caused by the Daikon Shield. Thus, defendants contend, the suit filed in May, 1983 is barred by the statute of limitations.

Plaintiffs contend there is no indication in the record that Mrs. Redmond was aware the Daikon Shield was considered dangerous in comparison to other IUDs, or that it was in any way defective. At her deposition, she testified that she had not been so informed by her doctors, and that she did not have such knowledge until she saw the program on Sixty Minutes (Paper No. 63, Ex. 4). Although Mrs. Redmond is a nurse, plaintiffs indicate that she learned through her training only that there was a small risk of infection associated with IUDs in general. Thus, plaintiffs contend, they did not know until Mrs. Redmond saw the program on Sixty Minutes that they had a cause of action as a result of her use of the Daikon Shield.

F. Ruling

In each of these cases, it appears that plaintiffs were aware, more than three years prior to the filing of their claims, that the Daikon Shield may have caused their injuries. It also appears, however, that in each case the inferences which can be drawn from the undisputed evidence are conflicting. There is no evidence that any of the plaintiffs, including the two nurses, possessed any special knowledge in the field of gynecology.

#

Knowledge that the injuries may have been caused by the Daikon Shield does not, in and of itself, indicate that plaintiffs were aware that a wrong had been committed against them. There appears to be, in all four cases involved here, a dispute over whether the plaintiffs possessed any knowledge that the Daikon Shield may have been defective, or that Robins may have been negligent in the production and testing of the Daikon Shield. In all of these cases, plaintiffs testified that they did not have such knowledge.

As such, these cases are distinguishable from the state cases cited by the defendants. See Grasso v. Davis, No. 83 227 006/L-9613 (Circuit Court for Baltimore City, Aug. 14, 1984); Smallwood v. Davis, No. 83 346 013/L-14229 (Circuit Court for Baltimore City, Aug. 14, 1984); Bigelow v. Davis, No. 83 213 002/L-8951 (Circuit Court for Baltimore City, Aug. 14, 1984) (all attached to Paper No. 43 as Ex. 7). In Grasso, the plaintiff was told by her gynecologist at the time of her operation that the Daikon Shield was defective and must be removed immediately. In Smallwood, the plaintiff was told that she was having so many problems because she had the Daikon Shield, which had been taken off the market. She stated that, to her, the fact that a product was taken off the market would mean that it was defective. Finally, in Bigelow, the plaintiff had consulted a lawyer, to determine whether or not she had a feasible case, more than three years prior to filing her lawsuit.

The circumstances involved in these cases are more akin to those found in Amsler v. A.H. Robins Co., B-82-3295 (D.Md., Oct. 19, 1984), where Judge Black of this court held:

“It is apparent that in 1975 Amsler did know that the Daikon Shield played a role in her pelvic inflammatory disease. What is not at all clear is whether she knew that the Daikon Shield caused her disease because it may have been defective or that Robins may have been negligent in the IUD’s production, testing, and marketing. The facts alleged indicate that Amsler may well have learned of the wrong only in 1982 when she heard that others were suing Robins. Whether she knew enough information before 1982 to put her on actual notice that the Daikon Shield could be defective remains in dispute.”

(Paper No. 63, Ex. 5).

In sum, this court finds that in the four cases in question, there are conflicting inferences which could be drawn as to whether the plaintiffs knew that the Daikon Shield was defective or that Robins had been negligent. Accordingly, the defendants’ motions for summary judgment will be denied.

II. Warranty, Involuntary Testing, and Battery Claims

Defendants have also moved, in all cases in this trial group, for summary judgment on the claims in which plaintiffs allege causes of action for breaches of express and implied warranty, involuntary testing, and battery (Paper Nos. 40 and 51). Plaintiffs have filed an opposition to the motion (Paper No. 64). In Mawdsley v. A.H. Robins Co., B-82-106 (consolidated Dalkon Shield cases, December 1984 Trial Group), Judge Black granted motions based on these issues (Paper No. 40, Ex. 1).

The only reason asserted by plaintiffs why this motion should not be granted is their assertion that all statutes of limitations should be tolled under Md.Cts. & Jud. Proc.Code Ann., § 5-203, which provides:

“If a party is kept in ignorance of a cause of action by the fraud of an adverse party, the cause of action shall be deemed to accrue at the time, when the party discovered, or by the exercise of ordinary diligence should have discovered the fraud.”

Plaintiffs assert that the deposition testimony of Roger L. Tuttle, Robins’ former counsel, to the effect that he was instructed in 1975 to destroy all documents relative to the defectiveness of the Daikon Shield, and Robins’ knowledge of the defectiveness of the products, requires tolling of the statute of limitations in these cases.

The party asserting that fraudulent. concealment tolls limitations has the burden of proving that it caused ignorance of her cause of action. Leonardt v. Atkinson, 265 Md. 219, 289 A.2d 1 (1972). Furthermore, the Maryland Court of Special Appeals stated in Associated Realty Co. v. Kimmelman, 19 Md.App. 368 at 372, 311 A.2d 464 (1973), that “it is obvious that the mere presence or absence of fraud is not necessarily determinative; rather, ... the controlling factor is whether or not the party has been kept in ignorance of his claim by the fraud.”

Although the plaintiffs have indicated that there may have been fraudulent concealment to some degree on the part of the defendants, it is clear that an abundance of information regarding the alleged injuries caused by the Daikon Shield has been available to the public for a number of years. Furthermore, Multidistrict Litigation with respect to the products liability litigation of the Daikon Shield was taking place in the United States District Court of Kansas as early as 1975. Under these circumstances, this court finds that the plaintiffs have not met their burden of showing that their ignorance was caused by Robins' alleged fraudulent concealment. Therefore, the limitations periods involved were not tolled.

The plaintiffs have not otherwise presented any objections to the merits of the motion. The facts relevant to a determination of this motion are as follows:

Plaintiff Rockstroh was inserted with the device on December 10, 1973; her Complaint in this Court was filed on January 25, 1982. Plaintiff Redmond was inserted with the device in May, 1973; her Complaint was filed on May 23, 1982. Plaintiff Connelly was inserted with the device in the spring of 1973; her Complaint was filed March 24, 1983. Plaintiff Harris was inserted with an I.U.D. on August 29, 1972. Her Complaint was filed in this Court on March 24, 1983. Plaintiff Nuss was inserted with an I.U.D. on January 24, 1973. lifer Complaint was filed in this Court on February 9, 1983. Plaintiff Manipole was inserted with a device in the spring of 1973. She filed her Complaint in this Court on February 3, 1983. Plaintiff Pearsall acquired an I.U.D. on June 4, 1973. She filed her Complaint on March 4, 1983. Plaintiff Williams was inserted with an I.U.D. on September 29, 1972. The Complaint filed on her behalf in this Court was filed in 1982. Finally, Plaintiff Truitt was inserted with an I.U.D. on August 8, 1972. She filed a Complaint before this Court on April 11, 1983.

The defendants assert that the warranty claims should be dismissed based on the four year statute of limitations in Md.Com.Law Code Ann., § 2-725. The four year period runs from the date of tender of delivery of the goods, unless the warranty explicitly extends to future goods. As plaintiffs in this case have not asserted that the warranties alleged extended to future performance, this court will follow the finding of Judge Black in Mawdsley v. A.H. Robins Co. that the assertions made by plaintiffs do not meet the explicit standard required to constitute a warranty of future performance, and that an implied warranty cannot extend to future performance (Paper No. 40, Ex. 1 and cases cited therein).

With regard to the intentional tort of involuntary testing and the battery claims, the relevant statute is Md.Cts. & Jud.Proc.Code Ann., § 5-105, which provides that battery actions must be brought within one year of the act giving rise to the cause of action. The parties do not dispute that the insertions of the Daikon Shields in these cases occurred in 1972 or 1973. As there is no case extending the “discovery” rule to actions not coming within Md. Cts. & Jud.Proc. Code Ann., § 5-101, the one year statute of limitations must apply in these cases. Mawdsley v. A.H. Robins Co., B-82-106 (D.Md., Oct. 19, 1984) (attached to Paper No. 40 as Ex. 2). Accordingly, these claims are barred by the statute of limitations, and the motion for summary judgment as to these counts will be granted? as well.

III. Consortium

Defendants have moved for summary judgment as to the consortium counts of Richard Manipole in Manipole v. A.H. Robins Co., M-83-347; John Redmond in Redmond v. A.H. Robins Co., M-83-1712, and Wesley Truitt in Truitt v. A.H. Robins Co., M-83-1068 (Paper Nos. 41 and 50). Plaintiffs have filed an opposition (Paper No. 68). The basis of these motions is that each of these men married their respective wives subsequent to the removal of the women’s Daikon Shields. Defendants assert that these individuals have failed to state a cause of action for loss of consortium because they were not married to the women prior to the removal of the IUDs.

It appears to be universally held that, in order to maintain a valid action for loss of consortium, the parties must be married at the time of the injury. See, e.g., Curry v. Caterpillar Tractor Co., 577 F.Supp. 991 (E.D.Pa.1984); Weaver v. G.D. Searle & Co., 558 F.Supp. 720 (N.D.Ala.1983); Gillespie-Linton v. Miles, 58 Md.App. 484, 473 A.2d 947 (1984) (and cases cited therein).

Plaintiffs concede that the date of their marriages in each instance occurred subsequent to the use of the Daikon Shield and the first manifestation of injury (Paper No. 68). While plaintiffs do not dispute the current state of the law, they contend that the law is unsound and unfair (id.). Plaintiffs, however, have failed to indicate any authority for their position, and it appears that none exists. This court is of the opinion that the rule is sound, and, in light of its uniform application, the defendants’ motion will be granted.

IV. Other Motions

Defendants have also filed motions for summary judgment on the plaintiffs’ counts alleging intentional infliction of emotional distress (Paper Nos. 38 and 53), a private right of action under the Federal Food, Drug and Cosmetic Act, 21 U.S.C. §§ 301 et seq. (Paper Nos. 39 and 54), and the strict liability claims in Truitt v. A.H. Robins Co., M-83-1068, and Redmond v. A.H. Robins Co., M-83-1712 (Paper Nos. 36, 37, 52, and 55). As the plaintiffs have indicated that they are withdrawing these claims and will not rely on them at trial (Paper Nos. 65-67), these motions will be denied as moot.

Accordingly, it is this 20th day of February, 1985, by the United States District Court for the District of Maryland, ORDERED:

1. That the Motions for Summary Judgment on the negligence, strict liability, fraud and conspiracy counts based on limitations, filed by the defendants, in Rockstroh v. A.H. Robins Co., M-82-108; Manipole v. A.H. Robins Co., M-83-347; Pearsall v. A.H. Robins Co., M-83-702; and Redmond v. A.H. Robins Co., M-83-1712, be, and the same are hereby, DENIED.

2. That the Motions for Summary Judgment, filed by the defendants, on the counts alleging causes of action for warranty, involuntary testing, and battery be, and the same are hereby, GRANTED.

3. That the Motions for Summary Judgment, filed by the defendants, on the counts alleging loss of consortium in Manipole v. A.H. Robins Co., M-83-347; Redmond v. A.H. Robins Co., M-83-1712; and Truitt v. A.H. Robins Co., M-83-1068, be, and the same are hereby, GRANTED.

4. That the Motions for Summary Judgment, filed by the defendants, on the counts alleging causes of action for intentional infliction of emotional distress, a private right of action under the Federal Food, Drug and Cosmetic Act, and strict liability in Truitt v. A.H. Robins Co., M-83-1068, and Redmond v. A.H. Robins Co., M-83-1712, be, and the same are hereby, DENIED as moot.

5. That the Clerk mail a copy of this Memorandum and Order to counsel for the parties.

      . The parties have agreed that the substantive law of Florida is applicable in Manipole.

      . Since the 12 year limitation could not apply in this situation, this court also need not address plaintiffs’ contention that the Florida statute has been declared unconstitutional, because it is only this 12 year provision that Florida courts have found to be in violation of Florida’s state constitution when applied to particular circumstances. See Ellison v. Northwest Engineering Co., 521 F.Supp. 199 (S.D.Fla.1981); Universal Engineering Corp. v. Perez, 451 So.2d 463 (Fla.1984); Diamond v. E.R. Squibb and Sons, Inc.,
        397 So.2d 671 (Fla.1981); Overland Construction Co. v. Sirmons, 369 So.2d 572 (Fla.1979).

      . The parties have agreed that the substantive law of the following states is applicable in these cases:


author: THEIS, District Judge.

text:
    Stephen T. AGUINAGA, Janet Brown, Wayne Pappan, et al., Plaintiffs, v. JOHN MORRELL & COMPANY, United Food and Commercial Workers International Union, AFL-CIO/CLC and Local Union 340, United Food and Commercial Workers, Defendants.
    Civ. A. No. 83-1858.
    United States District Court, D. Kansas.
    Feb. 20, 1985.

      Robert C. Brown, Wichita, Kan., for plaintiffs.
    William H. Dye, Foulston, Siefkin, Powers & Eberhardt, Wichita, Kan., for John Morrell & Co.
    Irving M. King, Peggy A. Hillman, Cotton, Watt, Jones & King, Chicago, III, Richard A. Shull, Moore & Shull, Wichita, Kan., for United Food and Commercial Worker International Union, AFL-CIO/CLC and Local Union 340, United Food and Commercial Workers.
   OPINION AND ORDER

THEIS, District Judge.

I. NATURE OF THE CASE

This is an action brought under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (1964), in which plaintiffs seek compensatory and injunctive relief and class certification. Plaintiffs are those persons employed by defendant John Morrell & Company (Morrell) under a master agreement negotiated on behalf of plaintiffs by defendant United Food and Commercial Workers International Union (International) and its local chapter, defendant Local 340 (Local). The case is currently before the Court on the motions of defendants International, Local and Morrell to dismiss and plaintiffs’ motion for class certification. For the reasons that follow, the motions to dismiss shall be denied and the motion for class certification shall be granted.

II. FACTUAL ALLEGATIONS

Plaintiffs allege that on or about June 19, 1982, defendant Morrell closed its Rodeo facilities in Arkansas City, Kansas, which closing terminated the employment of plaintiffs and members of plaintiffs’ class. This closing, according to plaintiffs, was effected for the purpose of avoiding the provisions of an agreement with respect to payment of wages and other benefits. On or about March 23, 1983, Morrell resumed operations at the Arkansas City facilities under the division head of Ark City Packing Company (Ark City facilities) but refused to recall employees in the bargaining unit who had worked pursuant to the agreement. Plaintiffs contend that Morrell, by closing the Rodeo facilities, terminating plaintiffs, reopening the Ark City facilities and failing to reemploy plaintiffs, has circumvented the terms and conditions of the bargaining agreement.

As to defendants International and Local, plaintiffs allege that the unions failed to pursue grievance procedures established by the agreement and by law to protect plaintiffs. In addition, plaintiffs argue that International and Local renegotiated a separate agreement with Morrell subsequent to March 23, 1983, under which defendant unions would become the exclusive bargaining agents for the new bargaining unit at Morrell’s Ark City facilities. Plaintiffs contend that the abandonment of plaintiffs’ grievances and the renegotiation between defendants Morrell and unions made resort to union grievance procedures futile.

Defendants unions’ and Morrell’s contentions in their motions to dismiss will be considered jointly. Defendants argue that plaintiffs fail to state a claim because they make only conclusory allegations. Further, defendants contend that this Court lacks subject matter jurisdiction in that claims of unfair labor practices are within the exclusive jurisdiction of the National Labor Relations Board (NLRB). Defendants suggest in addition that the action is barred by the six month statute of limitations in 29 U.S.C. § 160(b). Finally, defendant unions claim that plaintiffs have failed to allege that they have exhausted internal union remedies.

III. FAILURE TO EXHAUST/FAILURE TO STATE A CLAIM

Although defendants attempt to separate the issues, the question of pleadings sufficient to state a claim and allegations necessary to excuse failure to exhaust contract grievance procedures are inextricably intertwined. Defendants contend that this Court lacks jurisdiction due to plaintiffs’ failure to exhaust internal grievance procedures. Plaintiffs respond that such exhaustion would be futile and allege that the union breached its duty of fair representation.

The United States Supreme Court has held that section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, covers suits by employees against their employers. Smith v. Evening News Association, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962). When collective bargaining agreements provide for grievance procedures, however, unless the employees exhaust these remedies, they may not bring suit under section 301. Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965). The grievance procedures need not be exhausted before bringing an action on the contract when the plaintiff alleges the union has breached its duty of fair representation, VACA v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), or when the plaintiff claims that resort to the grievance procedure would be futile. Glover v. St. Louis-San Francisco Railway Co., 393 U.S. 324, 89 S.Ct. 548, 21 L.Ed.2d 519 (1969).

As to the ultimate burden of proof regarding the claim of breach of the duty of fair representation, plaintiffs must establish that the union’s refusal to process the grievance was “arbitrary, discriminatory or in bad faith.” Vaca, 386 U.S. at 190, 87 S.Ct. at 916. Defendant Morrell cites cases suggesting that the conduct complained of must be more than mere negligence. See, e.g., Harris v. Schwerman Trucking Co., 668 F.2d 1204 (11th Cir.1982); Ruzicka v. General Motors Corp., 649 F.2d 1207 (6th Cir.1981); Findley v. Jones Motor Freight, 639 F.2d 953 (3d Cir.1981). Defendant unions argue that the mere allegation that a grievance should have been processed does not state a claim for relief, citing Medlin v. Boeing Vertol Co., 620 F.2d 957 (3d Cir.1980).

First, the Third Circuit in Smith v. Pittsburgh Gage and Supply Co., 464 F.2d 870, 875 (3rd Cir.1972), held that “[e]ven the mere perfunctory handling of a grievance by a union might be sufficient basis for a finding of a breach of the duty of fair representation that would excuse exhaustion of the grievance procedure and arbitration.” In fact, in Ruzicka, 649 F.2d at 1211, cited by Morrell, the Court of Appeals for the Sixth Circuit held that when the union failed to process a grievance without a “sound reason,” the union could be liable for unfair representation. In Pesola v. Inland Tool and Manufacturing, Inc., 423 F.Supp. 30, 35 (E.D.Mich.1976), the court held that “the negligent processing of a grievance may be arbitrary.” Thus, at trial plaintiffs may attempt to sustain their ultimate burden of proof by any one of a number of routes.

But at thus juncture the Court is only concerned with the burdens of proof relevant to a motion to dismiss. The Court would note that all of the above cases cited by defendants reached the courts in procedural postures different from that of the present case. Defendants have filed a motion to dismiss, not a motion for summary judgment as in Harris or a post trial motion as in Ruzicka. For the award of a motion to dismiss, it must appear that plaintiff “can prove no set of facts in support of his claim which would entitle him to relief.” Kennedy v. Meacham, 540 F.2d 1057, 1060 (10th Cir.1976). Defendants have not specifically addressed whether plaintiffs can meet this standard.

In addition to the breach of the duty of fair representation, another exception, or perhaps reformulation of the exception in Vaca, is the futility of exhaustion. In Fizer v. Safeway Stores, Inc., 586 F.2d 182, 183 (10th Cir.1978), the Tenth Circuit Court of Appeals noted that a claim of futility will suspend the general requirement of exhaustion. The court stated that an employee’s vague, subjective conclusions did not approach the requisite of a “clear and positive showing of futility.” Id. In Fizer, however, the court was analyzing a summary judgment motion, not a motion to dismiss. It is much easier for a plaintiff to withstand a motion to dismiss than a motion for summary judgment.

In the instant case, plaintiffs allege a conspiracy of employer and unions regarding the closing of the old plant, the reopening of the new plant, the failure to represent plaintiffs in bargaining and the renegotiation of a separate contract between defendants unions and employer. Under quite similar facts in Smith v. Pittsburgh Gage and Supply Co., 464 F.2d 870, 875 (3d Cir.1972), the court held that exhaustion of grievance procedures was not required when the employee alleged a conspiracy of employer and union to discharge him from work. The application of the futility rule to the present case makes policy sense. Employees should not be required to exhaust the very internal grievance remedies that they claim cannot afford them relief. In sum, plaintiffs argue both the futility of exhaustion and a breach of the duty of fair representation as exceptions to the requirement that plaintiffs exhaust grievance procedures.

The sole issue at the present time, though, is whether plaintiffs’ complaint can withstand a motion to dismiss. Defendants contend that plaintiffs have failed to state a claim because they did not make factually specific allegations, citing, among other cases, Wallace v. American Telephone & Telegraph Co., 460 F.Supp. 755, 760 (E.D.N.Y.1978), Collins v. Wilson Foods Corp., No. 77-2235 (D.Kan., unpublished, March 15, 1978), and Johnson v. Wilson Foods Corp., No. 77-2051 (D.Kan., unpublished, August 26, 1977). The Court finds the Kansas cases cited unpersuasive.

Reliance by defendants on Collins is misplaced. The complaints in Collins and the present case contain significant factual differences. In Collins plaintiff claimed only that he received “no aid or support” from his union. The court found this allegation insufficient on its face to survive a motion to dismiss. In the instant case, however, plaintiffs not only make the more specific claim that they filed a grievance and the unions failed to pursue it, they also allege a conspiracy between unions and employer, pointing to the renegotiation agreement. Plaintiffs thus suggest that any further pursuit of internal union remedies would be futile. It is apparent that plaintiffs in the present ease have made much more detailed allegations than those made by the plaintiff in Collins.

Although the Johnson case was before the court on a motion to dismiss, which the court properly treated as a motion for summary judgment, the court applied the standard of Amalgamated Association of Street, Electric Railway and Motor Coach Employees v. Lockridge, 403 U.S. 274, 301, 91 S.Ct. 1909, 1925, 29 L.Ed.2d 473 (1971), in which the United States Supreme Court required the plaintiffs to demonstrate “substantial evidence of fraud, deceitful action, or dishonest conduct.” Lockridge, however, was an appeal after the case had proceeded to judgment in the lower court and the “substantial evidence” standard was used by the Court to refer to plaintiffs’ ultimate burden of proof. In Johnson plaintiffs were only required to survive a summary judgment motion and in the present case plaintiffs must merely survive a motion to dismiss. To require a plaintiff to present “substantial evidence” at the motion to dismiss stage and the same wealth of evidence again at trial forces the plaintiff to shoulder the burden of persuasion twice in a single lawsuit.

The requirement of “substantial evidence,” of course, must be distinguished from the requirement of factually specific allegations. The former burden is not the sort of demonstration that can or should be required of plaintiffs at this preliminary stage. Cases cited by defendant unions suggest that the complaint must contain facts from which improper motivation might be inferred. Maisonet v. Trailer and Marine Transport, Inc., 514 F.Supp. 1129, 1132 (D.P.R.1981). Even if this Court were to hold plaintiffs to the standard of a factually specific complaint that defendants demand, plaintiffs meet that requisite.

Although the complaint does not delineate every possible detail, plaintiffs have alleged sufficient facts to state a cause of action. Pleadings should be liberally construed to insure that the ultimate issue is reached, Scheuer v. Rhodes, 416 U.S. 232, 237, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974), and defendants obviously comprehend plaintiffs’ allegations and have not been prejudiced in any way by a lack of extreme detail in plaintiffs’ complaint.

The crux of defendants’ argument is that the bald allegation of bad faith and the mere recitation of failure to process a grievance are insufficient to state a claim. While plaintiffs’ initial complaint may not be a masterpiece of craftsmanship, plaintiffs have on the face of their complaint made sufficient allegations to withstand a motion to dismiss. Plaintiffs allege reasons supporting a possibility that defendant Morrell and defendants International and Local jointly engaged in conduct prejudicial to plaintiffs and plaintiffs allege facts suggesting independent wrongful conduct.

Plaintiffs suggest that the closing of the Rodeo facilities “was effected by defendant Morrell for the purpose of avoiding the provisions of the agreement with respect to payment of wages and other benefits and constituted a violation of the agreement.” Dk. no. 1, ¶ 13. Plaintiffs further allege specific facts regarding the resumption of operations by defendant Morrell at the Ark City facilities and Morrell’s failure to recall employees in the bargaining unit. Regarding International and Local, plaintiffs not only allege failure to represent plaintiffs’ interests by refusal to pursue grievance procedures, plaintiffs also claim a renegotiation of a separate agreement between Morrell and International and Local under which defendant unions received certain advantages to the detriment of plaintiffs. Here the very fact that plaintiffs allege a covert conspiracy between unions and employer makes it particularly inappropriate to assume that plaintiffs’ lack of factual specifity reflects a fatal weakness in their theory of causation. Obviously, they cannot, prior to trial, be expected to know the precise details of the renegotiation agreement between International and Local and Morrell.

Finally, allegations held to be sufficient to state a cause of action under 29 U.S.C. § 185 virtually mirror those in plaintiffs’ complaint. In Zamora v. Massey-Ferguson, Inc., 336 F.Supp. 588 (S.D.Iowa 1972), the court held that allegations that the employee was wrongfully discharged by the company, that the union perfunctorily processed his grievance, and that the actions of the company and the union were part of a conspiracy between them to deprive the plaintiff of his rights under the collective bargaining agreement were sufficient to survive a motion to dismiss. Similarly, in Crawford v. Pittsburgh-Des Moines Steel Co., 386 F.Supp. 290 (D.Wyo.1974), an employer defended that the employee had failed to exhaust contractual remedies in the face of a claim for breach of a collective bargaining agreement. The court noted that the employee could bring the action provided the employee could prove that the union as bargaining agent breached its duty of fair representation. In determining that the action should not be dismissed, however, the court held that whether the union properly refused to process the employee’s grievance was ultimately an issue of fact which necessitated proof at trial. Id. at 296. In light of the above cases and plaintiffs’ contentions, plaintiffs have made a sufficient showing to withstand a motion to dismiss and should be given the opportunity to prove their claims at trial.

IV. THE STATUTE OF LIMITATIONS AND SUBJECT MATTER JURISDICTION

The next two issues are again interrelated: whether this Court has jurisdiction or whether exclusive jurisdiction rests with the National Labor Relations Board, and whether the statute of limitations bars plaintiffs’ claims. The interdependence of these questions is explained below.

Defendants correctly recite the general proposition that the NLRB has exclusive jurisdiction in cases involving unfair labor practices. Federal district courts, however, have jurisdiction over suits to enforce collective bargaining agreements even though an employer’s conduct which is challenged as a breach of contract is also arguably an unfair labor practice. Vaca, 386 U.S. at 187, 87 S.Ct. at 915. The fact that a violation of a labor contract may also constitute an unfair labor practice does not deprive the federal district court of jurisdiction. Lockridge, 403 U.S. at 298, 91 S.Ct. at 1923.

It should be noted that this Court has independent federal question jurisdiction for the claim of violation of the duty of fair representation. The origin of the duty is statutory, Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953), and suits for breach of a statutory duty may be brought under federal question jurisdiction, 28 U.S.C. § 1331, which plaintiffs specified in their complaint. Brady v. Trans World Airlines, Inc., 401 F.2d 87 (3d Cir.1968); Williams v. Pacific Maritime Association, 384 F.2d 935 (9th Cir.1967).

Plaintiffs contend that defendants breached their collective bargaining agreement. Defendants respond that plaintiffs’ claims, if based on the plant closing, which occurred approximately 15 months before this complaint was filed, are time-barred under the six month statute of limitations in 29 U.S.C. § 160(b). Next defendants suggest that the only claims plaintiffs can assert are associated with the plant reopening. But no collective bargaining agreement was in effect at the time the plant was reopened. Therefore, defendants conclude that any claims regarding the plant reopening are unfair labor practice claims which fall within the exclusive jurisdiction of the NLRB.

Defendants’ argument regarding the NLRB’s exclusive jurisdiction hinges upon the application of the six month statute of limitations to bar claims associated with the closing of the plant. If the six month statute of limitations is tolled, the act of defendant Morrell in closing the plant may be examined and the collective bargaining agreement would be in contention, precluding exclusive jurisdiction by the NLRB.

Defendants note that in DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), the Supreme Court established the statute of limitations in section 301 cases as six months. The consideration of events outside the six month period depends upon the gravamen of the unfair labor practice complaint. The general rule regarding the statute of limitations was established in Local Lodge No. 1424 v. NLRB, 362 U.S. 411, 80 S.Ct. 822, 4 L.Ed.2d 832 (1960). In Local Lodge No. 1424 the United States Supreme Court held that events occurring prior to six months before the filing of a charge may not constitute the basis of an unfair labor practice charge, but that “earlier events may be utilized to shed light on the true character of events occurring within the limitations period.” Id. at 416-17, 80 S.Ct. at 826-27.

A significant exception to this distinction between the use of anterior events in an evidentiary fashion and use of events to resurrect a stale claim is the concept of equitable tolling. As the Supreme Court noted in Holmberg v. Armbrecht, 327 U.S. 392, 397, 66 S.Ct. 582, 585, 90 L.Ed. 743 (1946) (quoting Bailey v. Glover, 88 U.S. (21 Wall.) 342, 348, 22 L.Ed. 636 (1874)), when a party “has been injured by fraud and ‘remains in ignorance of it without any fault or want of diligence or care on his part, the bar of the statute does not begin to run until the fraud is discovered____’” The Holmberg Court also noted that “[t]his equitable doctrine is read into every federal statute of limitations.” Id.

Plaintiffs claim that “the manifestation of wrongdoing by defendant Morrell did not occur until the reopening of the Ark City facilities in March, 1983,” but suggest that the reopening was part of a continuing plan to circumvent the obligations of the collective bargaining agreement in effect during June, 1982, when the plant was closed. Dk. no. 21, pp. 14-15. Plaintiffs do not accomplish a thorough job of researching the law regarding tolling of the statute of limitations. The Court has reviewed the cases concerning equitable tolling and finds that they fully substantiate plaintiffs’ position.

Numerous cases confirm that the limitation period begins to run when the plaintiffs discover or should have discovered the acts constituting the violation. See, e.g., NLRB v. Allied Products Corp., 548 F.2d 644, 650 (6th Cir.1977); NLRB v. International Longshoremen’s & Warehousemen’s Union, 549 F.2d 698, 700 (9th Cir.1977). In Amcar Division, ACF Industries, Inc. v. NLRB, 592 F.2d 422, 430 (8th Cir.1979), the employer’s concealment of the fact that it subcontracted with the bargaining unit without bargaining with respect thereto tolled the six month period. The statute of limitations was similarly tolled in NLRB v. Don Burgess Construc tion Corp., 596 F.2d 378, 383 (9th Cir.), cert. denied, 444 U.S. 940, 100 S.Ct. 293, 62 L.Ed.2d 306 (1979), when an employer fraudulently concealed the unlawful employment of nonunion carpenters from the union.

It is clear that fraudulent concealment tolls the statute of limitations and it should be noted that the extent of lapse of time alone is irrelevant. In International Ladies Garment Workers Union v. NLRB, 463 F.2d 907, 922 (D.C.Cir.1972), the court held that when an employer actively concealed from a union its decision to relocate, the union did not fail to exercise sufficient diligence to justify the tolling of the statute of limitations due to the mere fact that more than 16 months elapsed between the initial hearing, when the clue to the falsity was discovered, and the filing of the charge.

In the present case, the entire premise of plaintiffs’ claim is that Morrell covertly closed the Rodeo plant and reopened the Ark City plant.to avoid contractual obligations. Plaintiffs further contend that they did not and, in fact, could not have notice of the alleged scheme until the reopening in March of 1983. To the extent that plaintiffs timely filed the present action within six months after they discovered the alleged violation, the current action is not barred by the statute of limitations. Furthermore, since the action is not barred and because the time of the violation relates back to the closing of the Rodeo plant, the bargaining agreement in effect at that time may be challenged. Thus, part of the present action challenges the violation of a labor contract and, under the ruling in Lockridge, the NLRB does not have exclusive jurisdiction.

V. PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Plaintiffs have included within their complaint a motion for class certification pursuant to Rule 23 of the Federal Rules of Civil Procedure. Plaintiffs move to have included within the class “all union members of defendants International and Local employed by defendant Morrell on or about June 19, 1982,- and the immediate prior months.” Dk. no. 1, p. 4. Rule 23(a) contains four prerequisites to a class action; these are often denominated as numerosity, commonality, typicality, and adequacy of representation. In addition, before a case may be certified as a class action, it must fit within one of the three categories of class action suits described in Rule 23(b). Wilcox v. Commerce Bank, 55 F.R.D. 134 (D.Kan.1972), aff'd, 474 F.2d 336 (10th Cir.1973). The Court finds that the present suit meets all of the prerequisites of Rule 23(a) and that this case fits into the category described in Rule 23(b)(2).

A. Numerosity

Numerosity refers to the requirement that the number of members in the putative class be so large as to make joinder of all putative class members impracticable. Fed.R.Civ.P. 23(a)(1). Whether this requisite has been met can only be determined by examining the particular facts of the case. Horn v. Associated Grocers, Inc., 555 F.2d 270 (10th Cir.1977). In this case, plaintiff points out that Morrell had over 700 employees on June 19, 1982. It is clear that the numerosity requirement is met in this case. The Court finds that the number of members in the putative class makes their joinder impracticable, if not impossible.

B. Commonality

Commonality refers to the prerequisite that the putative class must share common questions of law or fact. Fed.R. Civ.P. 23(a)(2). This requisite is met in the instant case. All employees of Morrell who were covered by the collective bargaining agreement on June 19,1982, would presumably be making the same arguments of breach of the duty of fair representation, circumvention of the agreement, and so on. Questions of law applying to one would apply to all. The Court finds these common questions of law and fact sufficient to satisfy the requirements of commonality.

C. Typicality

The prerequisite of typicality holds that the claims of the representative parties must be typical of the claims of the putative class. Fed.R.Civ.P. 23(a)(3). Stephen T. Aguinaga, Wayne Pappan and Janet Brown claim to have been employed at Morrell at the time in question and contend that they were subjected to the actions of defendants unions and Morrell which allegedly deprived them of wages and other benefits. These claims would be typical of the putative class. The named plaintiffs need not be in a position identical to that of every member of the putative class. Rich v. Martin Marietta Corp., 522 F.2d 333, 340 (10th Cir.1975). The Court finds that Aguinaga, Pappan and Brown meet the typicality requirement of Rule 23(a)(3).

D. Adequacy of Representation

Adequacy of representation refers to the requirement that the named plaintiffs will adequately protect the interests of the putative class. Fed.R.Civ.P. 23(a)(4). This standard requires that the attorney of the named plaintiffs is qualified and capable of conducting the litigation and that the named plaintiffs’ interests are not antagonistic to the interests of the putative class. Albertson’s, Inc. v. Amalgamated Sugar Co., 503 F.2d 459 (10th Cir.1974). While counsel for plaintiffs did not research the issue of equitable tolling as thoroughly as this Court would have liked, the Court cannot say that counsel is unqualified or incapable of conducting the litigation in a competent manner. In addition, the Court is unaware of any antagonism between the interests of the named plaintiffs and the putative class. Therefore, the Court finds that the requirement of adequacy of representation has been satisfied by the named plaintiffs.

E. Rule 23(b)(2)

This case fits within the category of cases described in Rule 23(b)(2). Rule 23(b)(2) defines a category of cases in which “the party opposing the class has acted or failed to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief ... with respect to the class as a whole.” Fed.R. Civ.P. 23(b)(2). The actions of the defendants with respect to the collective bargaining agreement are generally applicable to all putative class members, as are the actions of defendant Morrell in closing the Rodeo facilities. The compensatory and injunctive relief sought by Aguinaga, Pappan and Brown would be appropriate relief for the class as a whole. Rule 23(b)(2) applies to cases in which “the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior for the fair and efficient adjudication of the controversy.” Fed.R.Civ.P. 23(b)(2). Since the named plaintiffs have stated no individual claims which would not be applicable to the class as a whole, the present action meets the above requirements.

F. Defining the Class

Plaintiffs have requested the Court to certify as a class “all union members of defendants International and Local employed by defendant Morrell on or about June 19, 1982, and the immediate prior months.” Since the Court does not want to engage in a line-drawing exercise with respect to which “immediate prior months” should be encompassed, the Court will opt for the less arbitrary cut-off of June 19, 1982. Thus, the Court certifies as a class all union members of defendants International and Local employed by defendant Morrell on June 19, 1982.

VI. CONCLUSION

The Court finds that all of the prerequisites of Rule 23(a) have been met and that this case fits within Rule 23(b)(2). In addition, the Court holds that plaintiffs have alleged with enough particularity facts sufficient to withstand defendants’ motions to dismiss. Finally, the Court finds that the principle of equitable tolling saves plaintiffs from the Scylla of exclusive NLRB jurisdiction and the Charybdis of the six month statute of limitations.

IT IS THEREFORE ORDERED that defendants’ motions to dismiss are hereby denied.

IT IS FURTHER ORDERED that plaintiffs’ motion for class certification is granted and that this case be certified as a class action with plaintiffs Aguinaga, Pappan and Brown to represent the class of all union members of International and Local employed by defendant Morrell on June 19, 1982.