author: MICHAEL, District Judge.

text:
    David L. JOHNSON, Plaintiff, v. UNIVERSITY OF VIRGINIA, et al., Defendants.
    Civ. A. No. 84-0036-C.
    United States District Court, Virginia, Charlottesville Division.
    March 27, 1985.

      John Di Joseph, Arlington, Va., for plaintiff.
    John Gibney, Alexander Wellford, David Kohler, Richmond, Va., for defendants.
   MEMORANDUM OPINION

MICHAEL, District Judge.

This matter is before the court on defendants’ motions to dismiss and motions for summary judgment. Plaintiff has alleged that defendants, the University of Virginia and two of its employees, infringed on plaintiff’s copyrights for certain photographs taken at University of Virginia sporting events. Plaintiff has also alleged that defendants lost certain of plaintiff’s photographic slides. In response to plaintiff’s allegations, defendants argue that plaintiff’s copyright claim is barred by the Eleventh Amendment of the United States Constitution, and plaintiff’s pendent state claim for the lost photographic slides should be dismissed for lack of jurisdiction. Defendants also argue that plaintiff’s claim for statutory damages and attorney’s fees in connection with the alleged copyright infringement should be dismissed because plaintiff has not made the requisite showing for such damages and fees. The parties have submitted briefs and presented oral argument on these issues; therefore, defendants’ motions are ripe for resolution by the court.

Defendants’ Eleventh Amendment argument is premised on the principle that a claim seeking to impose a liability that must be paid out of a state’s treasury is generally barred by the Eleventh Amendment. See, e.g., Herer v. Burns, 577 F.Supp. 762, 763 (W.D.Va.1984). The court agrees with defendants that plaintiff's copyright infringement claim derivatively is against the Commonwealth of Virginia, and thus seeks to impose a liability to be paid out of the Commonwealth’s treasury. In addition, the court agrees with defendants that any Eleventh Amendment immunity enjoyed here by the Commonwealth would be shared by defendants. Nevertheless, the court believes that the Eleventh Amendment provides no immunity in this case because that immunity was waived by the Copyright Acts of 1909 and 1976.

The parties have noted the split of authority on whether the Copyright Act of 1909 waived the states’ Eleventh Amendment immunity from copyright infringement actions. Wihtol v. Crow, 309 F.2d 777 (8th Cir.1962) (holding that the states’ Eleventh Amendment immunity was not waived by the 1909 Act); Mills Music, Inc. v. Arizona, 591 F.2d 1278 (9th Cir.1979) (holding that the states’ Eleventh Amendment immunity was waived by the 1909 Act). The court is aware of no decisions from any of the other Circuit Courts of Appeals, or from the United States Supreme Court, concerning the effect of the 1909 Act of states’ Eleventh Amendment immunity. Similarly, the court is aware of no decisions from the United States Supreme Court or any of the Circuit Courts of Appeals concerning the effect of the Copyright Act of 1976 on the states’ Eleventh Amendment immunity.

After carefully reviewing Wihtol and Mills Music, along with the parties’ arguments on those cases, the court concludes that Mills Music contains a more well-reasoned and thorough analysis of the Eleventh Amendment and the 1909 Act’s effect on the states’ Eleventh Amendment immunity. Indeed, Wihtol provides little more than a conclusory statement that the Eleventh Amendment bars suits against the states, their instrumentalities, and their agents acting within the scope of their employment. 309 F.2d at 781-782. By contrast, Mills Music includes a thoughtful examination of the 1909 Act and the recent Supreme Court opinions concerning the Eleventh Amendment, particularly Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (holding that a waiver of the states’ Eleventh Amendment immunity must be explicit or overwhelmingly apparent).

Cognizant of the holding in Edelman, the Mills Music court determined that in enacting the 1909 Act, Congress had authorized copyright infringement suits against the states. The Mills Music court based that determination in large part on the following language from the 1909 Act:

If any person shall infringe the copyright in any work protected under the copyright laws of the United States such person shall be liable ... [t]o pay to the copyright proprietor such damages as the copyright proprietor may have suffered due to the infringement, as well as all the profits which the infringer shall have made from such infringement.

17 U.S.C. § 101 (emphasis supplied in Mills Music opinion). According to the Mills Music court, Congress’ use of the above-quoted “sweeping language” without limitation was a sufficient indication of congressional intent to include states within the class of defendants liable for damages and equitable relief in copyright infringement actions. 591 F.2d at 1285.

Since Mills Music is a thorough and well-reasoned opinion, this court concludes with the Mills Music court that the 1909 Act waived the states’ Eleventh Amendment immunity to copyright infringement actions. Nevertheless, that conclusion does not end the inquiry here because the present action is brought under the Copyright Act of 1976.

The 1976 Act does not contain the same language quoted above from 17 U.S.C. § 101, on which the Mills Music court relied. However, the parallel provision in the 1976 Act, 17 U.S.C. § 501, contains the following language:

Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 118, or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright.

17 U.S.C. § 501(a) (emphasis supplied).

Based on a comparison of the language in these parallel provisions, the court believes that the Mills Music court’s analysis of the 1909 Act is equally compelling, if not more compelling with respect to the 1976 Act. Whereas the 1909 Act prohibited “any person” from infringing on a copyright, the 1976 Act prohibits “anyone” from so doing. Thus, the language of the 1976 Act is at least as sweeping, and probably more sweeping, than the language of the 1909 Act in identifying the class of defendants subject to copyright infringement suits. Therefore, based on the Mills Music analysis of the 1909 Act, and this court’s examination of the operative language of the 1976 Act, the court determines that the 1976 Act waived the states’ Eleventh Amendment immunity from liability for damages and equitable relief for copyright infringements. As such, the court denies defendants’ motions insofar as they rely on the Eleventh Amendment as grounds for dismissing or entering summary judgment on plaintiff’s copyright infringement claim.

Aside from the Eleventh Amendment argument, defendants argue that plaintiff's pendent state claim for the lost photographic slides must be dismissed because that claim and plaintiff’s copyright infringement claim do not “derive from a common nucleus of operative fact” and are not so closely related that ordinarily plaintiff would “be expected to try them [both] in one judicial proceeding.” UMW v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). In opposition, plaintiff contends that the two claims should be tried together because defendants’ loss of the photographic slides was related to, and caused by defendants’ infringing on plaintiff’s copyrights through widespread distribution of the photographic slides.

The court recognizes the possibility of some connection between the loss of plaintiff’s photographic slides and defendants’ alleged copyright infringement. Nevertheless, the possibility of such a connection does not establish the kind of nexus between the plaintiff’s federal and state claims which would satisfy the above-mentioned standard for pendent jurisdiction announced in Gibbs. Consequently, the court grants defendants’ motions insofar as they request the dismissal of plaintiff’s state claim for the loss of the photographic slides.

Finally, defendants argue that plaintiff’s request for statutory damages and attorney’s fees in connection with his copyright infringement claim is barred by the express language of 17 U.S.C. § 412, which states: Defendants note that the photographs at issue here were not registered until March 12, 1984, and defendants’ affidavits show that their allegedly unauthorized first use of those photographs occurred no later than January 1984. Furthermore, defendants point out that plaintiff’s complaint shows that the most recent date of first publication listed for any of plaintiff’s photographs is September 2, 1983. Thus, defendants argue that plaintiff is not entitled to statutory damages or attorney’s fees because the allegedly infringing uses commenced prior to registration, which registration was not made during the three-month grace period provided in § 412(2).

In any action under this title, other than an action instituted under section 411(b), no award of statutory damages or of attorney’s fees, as provided by sections 504 and 505, shall be made for—
(1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or
(2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.

Plaintiff does not dispute that his registration occurred after the three-month grace period. Furthermore, plaintiff agrees with defendants that § 412 bars statutory damages and attorney’s fees for infringements occurring prior to registration. Nevertheless, plaintiff argues that his claim for statutory damages and attorney’s fees is not barred by § 412 because defendants have committed infringements following registration. The court notes, however, that the alleged post-registration infringements involve only photographs which were first used by defendants prior to registration. Consequently, those alleged post-registration infringements “commenced” prior to registration, and thus pursuant to § 412, they provide no basis for allowing statutory damages or attorney’s fees.

Plaintiff seeks to escape the bar of § 412 by arguing that a copyright infringement “commenced” within the meaning of § 412 each time defendants used any of plaintiff’s photographs. The court believes that ascribing such a meaning to the term “commenced” would totally emasculate § 412. Therefore, the court rejects plaintiff’s arguments, and grants defendants’ motions insofar as they request that plaintiff’s claim for statutory damages and attorney’s fees be denied.

An appropriate Order shall this day enter.

      . The court notes that the Wihtol court left no doubt that it was reluctant to find a copyright infringement on the facts of the case. According to that court, it was faced by a "troublesome case growing out of the unfortunate but unintentional and seemingly harmless mistake of [defendant].” 309 F.2d at 780. Defendant was a junior college and high school music instructor who had adapted plaintiffs copyrighted musical composition so it could be performed by a school choral group. Apparently, defendant, the choral group, and the school system received no money from the choral group’s performance of the musical composition.
      Following its characterization of the case as "troublesome,” the Wihtol court stated, “We have, however, reluctantly concluded that, under the language of the Copyright Act [defendant’s] copying must be held to have infringed both of the copyrights of the plaintiff.” Id. at 781. The court then held that the Eleventh Amendment barred the suit because defendant was an agent of the state acting within the scope of his employment. Id. at 781-82.
      It is difficult to know exactly why the Wihtol court was reluctant to find a copyright infringement on the facts of the case. Nevertheless, it is clear that those facts did not present a compelling case for addressing the issue of whether the states’ Eleventh Amendment immunity was waived by the 1909 Act.

      . As an additional basis for its determination that Congress intended to make states subject to copyright infringement actions, the Mills Music court noted that the resulting fiscal burden to states would be minimal because states would infrequently engage in ownership or infringement of copyrights. 591 F.2d at 1285. Given the paucity of case law concerning the issue of the states’ liability for copyright infringement, the Mills Music court’s prediction seems to have been quite accurate to date.


source: Caselaw Access Project

author: EGINTON, District Judge.

license: Public Domain

text:
    UNITED STATES of America v. Ronald DONALDSON.
    Crim. No. B-84-45 (WWE).
    United States District Court, D. Connecticut.
    March 27, 1985.

      Richard Reeve, for defendant.
    Jeremiah Donovan, for government.
   RULING ON MOTION TO SUPPRESS STATEMENTS

EGINTON, District Judge.

The defendant Donaldson has been charged with one count of wilfully harboring and concealing a fugitive, Frank Spetrino III (hereinafter “Spetrino”), in a third floor apartment at 227 Grove Street, Bridgeport, Connecticut in violation of 18 U.S.C. § 472.

The defendant Donaldson has moved to suppress any and all statements made by him on the following grounds: (1) they were obtained in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); (2) they were obtained as the result of an unlawful search of defendant’s apartment and an unlawful subsequent arrest; and (3) they were made involuntarily. The evidentiary hearing in this matter, conducted over the course of several days, focused primarily upon the second ground. For the reasons set forth below, the Motion to Suppress Statements is denied.

I. FACTS

The Government has submitted Joint Proposed Findings of Fact which, with a few exceptions, are substantially agreed upon by the parties. Defendant has also submitted additional Proposed Findings of Fact. Based upon these proposed findings and the testimony presented at the evidentiary hearing, the facts are described in detail below.

On June 28, 1984, Special Agent Paul Macrino of the United States Secret Service began an investigation concerning the passing of a twenty-dollar counterfeit note. The recipient of the note, a service station attendant, had copied down the driver’s license plate number of the person passing the note. This license plate number was assigned to Frank Spetrino of 227 Grove Street, Bridgeport, the father of Spetrino.

On June 29, 1984, several agents of the Secret Service went to 227 Grove Street, where Spetrino lived with his father. The Spetrino residence was on the second floor of a three-story three-family building known as 225-229 Grove Street. The building has two front doors, one leading to the first floor residence and the other leading to a set of stairs for the second and third floor residences. Each residence has a back door to an interior stairway leading to a back exterior door on the first floor. Each apartment has a front and back porch accessible only through the apartment itself. There are alleyways on both sides of the building with chain-link fences four-feet high in both alleyways. Next door is another residence and, on the other side, a commercial building housing a laundromat and social club. The residence in question has a small back yard of approximately twenty feet by twenty feet surrounded by a chain-link fence about five feet high. However, the fence has a hole in it through which one can gain access to a parking area.

The agents were informed by Spetrino’s father that Spetrino was not at home. However, agents observed Spetrino attempt to slip out of the back of the building. After being detained briefly, Spetrino agreed to be interviewed by the agents at the Bridgeport Police Department. During the interview, Spetrino admitted that he had passed the counterfeit bill. He stated that he had received the bill, along with others that he had used to purchase narcotics, from Thomas Palmieri of Naugatuck. After informing the agents that Palmieri planned to print up another large batch of counterfeit bills the next morning, Spetrino agreed to meet Agent Macrino the following morning. That night the agents maintained an all-night surveillance of Palmieri’s residence.

On June 30, 1984, Spetrino went with Agent Macrino to the Bridgeport Police Department where Spetrino placed a telephone call to Thomas Palmieri. Agent Macrino then agreed to wait for Spetrino at the Bridgeport Police Department until Spetrino had returned from the methadone clinic. However, Spetrino did not return and Agent Macrino was unable to locate him. In the meantime, Thomas Palmieri peered directly into the Secret Service Surveillance van, thus ending the possibility of surreptitious surveillance.

On June 30, July 1, and July 2, Agent Macrino made several telephone calls to the Spetrino residence, but was informed by Spetrino’s father that Spetrino was not at home and had not been seen. On July 2, 1984, Agent Macrino filed a complaint, and a warrant for Spetrino’s arrest was issued at approximately 3:00 p.m. At approximately 4:00 p.m., surveillance was initiated at 227 Grove Street. Spetrino’s father was observed letting Spetrino out of the car; Spetrino and his father then entered the ■building separately. Hoping to persuade Spetrino to meet him on the street, Agent Macrino telephoned the Spetrino residence. A female stated that neither Spetrino nor his father was at home. In a second telephone call a short while later, Agent Macrino was able to speak with Spetrino’s father, who again stated that Spetrino was not at home and that he had not recently seen him.

As Special Agents Macrino and Rasor approached the Grove Street residence, Agent Macrino noticed a man on the third-floor porch scanning the neighborhood. Three additional agents were left to guard the outside of the house; two were positioned in the front of the house and one in the back. Agents Macrino and Rasor went to Spetrino’s second floor apartment. Spetrino’s father stated that his son was not home and that he had not seen him recently. He then agreed to let Agents Macrino and Rasor look around the apartment for Spetrino. Spetrino could not be located.

Leaving Agent Rasor with Spetrino’s father, Agent Macrino went up to the third floor apartment and knocked on the door. Defendant Donaldson, the same man who had been scanning the neighborhood from the third-floor porch, answered. Agent Macrino identified himself and told defendant Donaldson that he had a warrant for Spetrino’s arrest. Defendant Donaldson stated that Spetrino was not in the apartment, and he refused to allow Agent Macrino to enter without a search warrant. Agent Macrino, along with Agent Rasor who had joined him outside the third-floor doorway, explained that if he were hiding Spetrino within, he would be committing the crime of harboring a fugitive. Defendant Donaldson continued to maintain that Spetrino was not in the apartment and that the agents could not enter without a search warrant.

After signaling to the agent in the back of the Spetrino residence to move in closer, Agent Rasor went to the second-floor apartment to see Spetrino’s father, who admitted finally that Spetrino was hiding upstairs. Agent Rasor returned to the third floor and told Donaldson that he knew Spetrino was in the apartment. Although the agents shouted in to Spetrino that he should surrender, defendant Donaldson refused to permit the agents to enter. Agents Rasor and Macrino could hear the voices of a female and small children inside the apartment. They pushed past defendant Donaldson and a minor shoving match occured at the door.

Although Agent Rasor ordered defendant Donaldson to remain still, Donaldson moved toward a bedroom. Agent Rasor drew his gun and commanded Donaldson to stop. By this time, Donaldson was inside the bedroom. At Agent Rasor’s command, he sat in a chair. While Agent Rasor stayed in the bedroom facing defendant Donaldson, Agent Macrino searched the remainder of the apartment. After a few minutes, Donaldson’s girlfriend, June Stella Pighinni, came into the bedroom and lay down on the bed, which had been placed at a forty-five degree angle in a corner of the room. Agent Gardner, who had been one of the surveillance agents, joined Agent Macrino in the search. At Agent Rasor’s instruction to look behind the bed, Agent Gardner ordered Pighinni off the bed. He looked in the triangular space made by the corner of the wall behind the bed, drew his firearm, and ordered the person hiding in that space to come out. Spetrino appeared from behind the bed. Agent Rasor’s back had been to Spetrino throughout the time that he was in the room.

Spetrino and defendant Donaldson were placed under arrest and brought. to the Westport barracks of the State Police Department for processing. Although the parties dispute the exact time of arrival, it was approximately 5:00 — 5:30 p.m. Donaldson was interrogated by Special Agents Healy and Flaherty in a small room. Agent Healy read Donaldson the standard Miranda warnings and Donaldson read silently along. Defendant Donaldson indicated that he understood his rights and signed the acknowledgment. By this time, it was 6:15 p.m. Agent Healy then read the “waiver of rights” section of Secret Service Form 1737 (Gov’t Ex. 5). Defendant Donaldson read silently along with the agent and then stated that he was willing to waive his rights by signing the waiver.

Defendant Donaldson told Agent Healy that he had returned home from work at about 3:30 that afternoon. At about 5:00 p.m., Spetrino knocked on his door and told Donaldson that he was being watched by someone. Donaldson asked Spetrino if they were the same persons who had arrested Spetrino on June 29, 1984. Spetrino said he thought so. Spetrino asked Donaldson if he could stay in the third-floor apartment because the agents could not enter it without a search warrant. Spetrino offered defendant Donaldson $20.00 so that Donaldson could take his girlfriend and her children to a movie. Donaldson agreed as long as he would not be present; he did not want to get into any trouble. However, before Donaldson, his girlfriend and the children could leave, the Secret Service agents arrived at the door. It is not clear whether Donaldson actually received the $20.00 from Spetrino. Defendant Donaldson admitted that he was wrong to have protected Spetrino and lied to the agents.

Agent Healy asked Donaldson if he would be willing to make a written statement and defendant Donaldson agreed. Agent Healy used a form which contained another set of Miranda warnings and a second waiver, which Donaldson read and executed. Donaldson then repeated his statement as Agent Healy wrote it down. After reading through the statement and agreeing as to its accuracy, defendant Donaldson initialed the statement at various places, swore to its truth, and executed the statement. He was photographed, fingerprinted and released after being in custody for approximately an hour-and-a-half.

II. DISCUSSION

Defendant Donaldson argues that his statements should be suppressed because the search of his apartment and the subsequent arrest were unlawful and his Miranda rights were violated. He also claims that he made the statements involuntarily.

A. THE SEARCH

Defendant contends that the search of his apartment was illegal, pursuant to Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981), because it was conducted without a warrant and in the absence of exigent circumstances. The Government argues that the warrantless search was proper, because exigent circumstances existed. Alternatively, the Government maintains that the search was proper under Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) and that Steagald, supra is inapplicable. Its third argument is that the search was proper as incident to defendant Donaldson’s arrest. Each of these arguments will be separately considered. Because defendant Donaldson’s standing to contest the search was the subject of some discussion at the evidentiary hearing, it will be discussed briefly below.

Standing

In order to have standing to contest a search and seizure, an individual must have a legitimate expectation of privacy in the premises searched or the property seized. Rakas v. Illinois, 439 U.S. 128, 148-49, 99 S.Ct. 421, 432-33, 58 L.Ed.2d 387 (1978). It has been established that on July 2, 1984 and for several months prior thereto, defendant Donaldson resided at 229 Grove Street in Bridgeport, Connecticut with June Stella Pighinni and her three children. His clothes and personal possessions were there and he shared financial and personal responsibility for maintenance of this apartment as his home. The telephone in the apartment was listed in the name of Ronald Donaldson. (Tr., 10/31/84 at 153-55).

There is no question that 229 Grove Street, a third-floor apartment, was defendant Donaldson’s home at the time of the search in question. The Supreme Court in Rakas, supra emphasized that the petitioner in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) had a legitimate expectation of privacy in the premises searched. Although it was a friend’s apartment, Jones had permission to use it, he entered with a key, and kept some possessions there. Therefore, there is no question that defendant Donaldson had a legitimate expectation of privacy in the premises known as 229 Grove Street and has standing to challenge the search of the premises.

Applicability of Steagald

Defendant contends that Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981) is applicable to this matter. The Government, however, has made an alternative argument that Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) applies because defendant Donaldson's apartment was Spetrino’s short-term residence.

In Payton, supra, the Supreme Court held that an arrest warrant carries only the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within. Two years later in Steagald, supra, the Court stated that the home of a third party may not be searched for the subject of an arrest warrant absent a search warrant or exigent circumstances.

The Government argues that the search of the third-floor apartment known as 229 Grove Street was proper under Pay-ton because Spetrino became a temporary resident of the apartment when he offered defendant Donaldson $20.00 to hide there from the Secret Service agents. In order for Payton to be applicable, Spetrino’s expectation in the third-floor apartment must have been identical to that which he would have in his own home. For example, a motel room may be temporarily equivalent to a home. United States v. Bulman, 667 F.2d 1374, 1383-1384 (11th Cir.1982). This court finds that defendant Donaldson’s third-floor apartment was not temporarily equivalent to Spetrino’s home. Even if Spetrino paid Donaldson the $20.00, a fact which is in dispute and on which no evidence was taken, Spetrino was not “renting” the apartment for the purpose of using it as his home. He did not intend to reside there for a short time nor did he intend to stay there even one night. Rather, he merely intended to stay there until the Secret Service agents left. Therefore, Payton is not applicable.

Accordingly, the warrantless search of defendant Donaldson’s third-floor apartment was valid only if exigent circumstances were present. Steagald, supra, 451 U.S. at 205-06, 101 S.Ct. at 1644-45. Exigent Circumstances

In Payton, supra, 445 U.S. at 583, 100 S.Ct. at 1378, the Supreme Court refused to consider the type of emergency or dangerous circumstances that would justify a warrantless entry into a home for the purpose of either an arrest or a search. In Steagald, supra, 451 U.S. at 221, 101 S.Ct. at 1652, however, the Court cited the “hot pursuit” of a fugitive as an example of an exigent circumstance. Last year the Court expanded upon its description of exigent circumstances. In Welsh v. Wisconsin, — U.S. -, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984), the Supreme Court held that a warrantless, nighttime entry into a home to arrest an individual for driving while under the influence was prohibited by the Fourth Amendment. It designated the gravity of the underlying offense as an important factor to be considered in determining whether an exigency exists, and stated that the exigent circumstances exception in the context of a home entry should “rarely be sanctioned when there is probable cause to believe that only a minor offense ... has been committed.” 104 S.Ct. at 2099. The Court cited three possible exigencies — hot pursuit, threat to public safety, and destruction of evidence — and concluded that none existed in that case.

The Court of Appeals for the Second Circuit has expressly stated some of the factors that should be considered in determining the existence of exigent circumstances.

These include (1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect “is reasonably believed to be armed”; (3) “a clear showing of probable cause ... to believe that the suspect committed the crime”; (4) “strong reason to believe that the suspect is in the premises being entered”; (5) “a likelihood that the suspect will escape if not swiftly apprehended”; and (6) the peaceful circumstances of the entry.

United States v. Reed, 572 F.2d 412, 424 (2d Cir.1978), quoting Dorman v. United States, 140 U.S.App.D.C. 313, 320, 435 F.2d 385, 392-93 (1970). This list is merely illustrative and not exclusive; other factors may be relevant. Furthermore, the presence or absence of particular factors is not conclusive. The determination is based upon whether, in light of all the factors of the case, there was an urgent need justifying the warrantless entry. United States v. Martinez-Gonzalez, 686 F.2d 93, 100 (2d Cir.1982). The Government has the burden of showing that the agents had an urgent need to enter the premises without a warrant. United States v. Reed, supra, 572 F.2d at 424.

In considering the first factor, the gravity of the offense, the defendant argues that the passing of a $20.00 counterfeit bill should be considered a minor offense. This court disagrees. The passing of a counterfeit note is governed by 18 U.S.C. § 472, which provides that anyone who violates this provision shall be fined not more than $5,000 or imprisoned not more than fifteen years, or both. A maximum penalty of fifteen years imprisonment is the same as that authorized for a first conviction of narcotics distribution (21 U.S.C. § 841(a)), an offense which the Second Circuit has described as “a most serious offense ...” Martinez-Gonzalez, supra, 686 F.2d at 100-01. A violation of 18 U.S.C. § 472 is clearly more serious than the driving under the influence offense in Welsh v. Wisconsin, supra. The Court based its decision in Welsh largely upon the fact that the offense was merely a civil violation allowing only a money forfeiture of not more than $300.00 for the first offense.

The second factor is whether the suspect was reasonably believed to be armed. This factor obviously reflects a concern for public safety. Because the Secret Service Agents had no specific facts from which to infer that Spetrino was armed, this court cannot conclude that a reasonable belief existed. However, it is noted that the agents were aware on July 2, 1984 that Spetrino had numerous arrests and convictions for burglaries and narcotics offenses; that he was a heroin addict who was receiving methadone from a clinic; and that he used counterfeit money to purchase narcotics. Therefore, the agents might properly have had some concern about Spetrino being armed. However, it was not sufficient to constitute a reasonable belief.

As to the third factor, there is no question that the agents had probable cause to believe that Spetrino had committed the crime. On June 29, 1984, Spetrino confessed to Agent Macrino that he had indeed passed the counterfeit note. In addition, his father’s vehicle had been identified as the one used by the perpetrator.

The agents also had strong reason to believe Spetrino was in the premises. They had seen him enter the building and had not seen him leave. They had observed defendant Donaldson scanning the neighborhood from the third-floor front porch. In addition, the Spetrino residence was searched and Spetrino was not located. Finally, Spetrino’s father told the agents that his son was hiding upstairs.

The fifth factor is the one most in dispute: the likelihood of Spetrino’s escape if not swiftly apprehended. The Government argues that Spetrino was a defendant intent upon escape. He tried to slip away from the Spetrino residence on June 29; he evaded Agent Macrino and could not be found on June 30 and July 1; and he was hiding when the agents sought to arrest him on July 2. Furthermore, after the commencement of prosecution, Spetrino failed to appear for a hearing. He was arrested in a motel room with an escaped prisoner on October 25, 1984. In addition, members of his family assisted him in his attempts to avoid capture by lying about his whereabouts to the agents.

The Government also argues that Spetrino had several escape routes available to him. There were three agents outside; two in the front of the building and one in the back. The Government contends that Spetrino could have slipped out one of the windows of the first-floor apartment to an alleyway on either side of the building and slipped into a window in the residence or social club next door. He could have hidden in the Spetrino residence in the hope that the agents would not search there again. He could have shinnied down the porch pillars and made a break across adjoining lots and yards, hoping to lose the agents. He could have rushed into any of the neighboring residences or commercial buildings. The Government argues that exigent circumstances existed because there were an insufficient number of surveillance agents to watch all exists. United States v. Johnson, 660 F.2d 749 (9th Cir.1981).

The defendant, however, contends that there was hot a sufficient likelihood of escape. Although surveillance can never absolutely guarantee the impossibility of an escape, all three agents who testified expressed their confidence that the building was secured. Spetrino’s likelihood of escape is a close question. However, this court finds that there was a serious risk that Spetrino would escape during the time necessary to secure a search warrant. Based upon their past experience with Spetrino, the agents had reason to believe that he would attempt to escape by any means possible. In addition, a suspect who realizes he is in danger of immediate apprehension is likely to attempt to escape or engage in armed resistance. United States v. Flickinger, 573 F.2d 1349, 1355 (9th Cir. 1978). Although law enforcement officials should take precautionary measures to guard against escape, the agents ability to do so was limited in this case. They had been to the Spetrino residence previously; however, their knowledge of the layout of the building was incomplete. They could not reasonably be certain that their coverage of the exits was sufficient to prevent Spetrino’s escape. United States v. Acevedo, 627 F.2d 68, 71 (7th Cir.1980).

The defendant argues that the agents had sufficient time to obtain a search warrant, because the Bridgeport federal courthouse was 0.8 of a mile from 229 Grove Street and there were two federal district judges and one magistrate available until approximately 6:00 p.m. that day. Although it would have taken only approximately ten minutes to travel to and from the courthouse, the time necessary to prepare the required affidavit or affidavits and to obtain the warrant would have posed a serious risk of Spetrino’s escape. See Fed.R.Crim.P. 41(c).

Defendant also contends that the agents could have obtained a search warrant by telephone in accordance with Fed.R.Crim.P. 41(c)(2). Pursuant to this provision, federal magistrates are authorized to issue warrants based on telephone communications. However, more than a simple telephone call is required to obtain a warrant based upon oral testimony. See United States v. Berick, 710 F.2d 1035 (5th Cir.1983). Each person whose testimony forms a basis for the application and each person requesting the warrant shall be placed under oath. The call shall be recorded by the magistrate by means of a voice recording device, if one is available, or by a stenographic or longhand verbatim record. The person requesting the warrant shall prepare a document known as the duplicate original warrant and shall read such document to the magistrate. The magistrate shall enter, verbatim, what is read to him on a document known as the original warrant. If he is satisfied that it is reasonable to dispense with the written affidavit and that grounds for the application exist, he shall issue the warrant by directing the person requesting it to sign the magistrate’s name on the duplicate original warrant. The magistrate shall sign the original warrant. See Fed.R.Crim.P. 41(c)(2)(B), (C) and (D). Although it is a close question, the court concludes that the circumstances of this case justified immediate action such that there was insufficient time even to obtain a telephone warrant.

The sixth factor for the court to consider in determining the exigency of the circumstances is the nature of the entry. The agents knocked on defendant Donaldson’s door and showed their creditentials. They made repeated requests to search the premises, but were denied. They even shouted in to Spetrino, hoping to persuade him to surrender. It was only after the agents were reasonably certain that Spetrino was upstairs that they pushed past defendant Donaldson. The court finds that this entry was reasonable. See United States v. Acevedo, 627 F.2d 68, 71 (7th Cir.1980).

The court concludes that the Government has met its burden of showing the existence of exigent circumstances sufficient to justify the warrantless entry and search. The offense with which Spetrino was charged was one of a serious nature. There was probable cause to believe he had committed the crime and strong reason to believe he was in the premises. Moreover, there was a serious risk that Spetrino would escape during the time necessary to obtain a search warrant, even if it were obtained by telephone. In addition, the nature of the agents’ entry was as peaceful as possible under the circumstances. Therefore, the Government’s actions were justified by the exigency of the circumstances.

Search Incident to Arrest

One of the Government’s alternative arguments is that the search was justified as being incident to defendant Donaldson’s arrest. Because this court has concluded that the search was justified on the basis of exigent circumstances, it is not necessary to consider this alternative argument. In any event, the argument is without merit.

Because an incident search may not precede an arrest and serve as part of its justification, Sibron v. New York, 392 U.S. 40, 63, 88 S.Ct. 1889, 1902, 20 L.Ed.2d 917 (1968), the Government contends that defendant Donaldson was arrested before the search took place. A suspect is arrested when he is seized and his freedom of movement is curtailed. Id. at 67, 88 S.Ct. at 1904. Although Donaldson’s freedom of movement was restrained before the search occurred, it was after the agents entered the third-floor apartment. Therefore, the entry cannot be justified as incident to the arrest.

B. STATEMENTS

Defendant has moved to suppress statements made by him not only on the basis of the search, but also on the grounds that they were obtained in violation of his Miranda rights and were made involuntarily. However, defendant has not briefed these issues and no evidence was presented at the hearing to substantiate them. The facts show that defendant was read his Miranda warnings before he made any statements. There is absolutely no evidence that such statements were made under coercion or in the absence of free will.

In conclusion, the court finds that defendant’s statements should not be suppressed. They were not made involuntarily or in violation of his Miranda rights. In addition, they were not obtained as the result of an unlawful search, because there were exigent circumstances justifying the warrantless search. Therefore, defendant’s Motion to Suppress Statements is DENIED.

SO ORDERED.


author: NESBITT, District Judge.

text:
    Richard BRULAND, Raymond Bruland, Vance Hager, and William Baldwin, Plaintiffs, v. Joe D. HOWERTON, et al., Defendants.
    No. 84-0240-CIV-NESBITT.
    United States District Court, S.D. Florida, Miami Division.
    March 27, 1985.

      Alfred K. Frigola, Marathon, Fla., for plaintiffs.
    Robert Kendall, Jr., U.S. Dept, of Justice, Washington, D.C., Tammy Fox Isicoff, U.S.I.N.S., Miami, Fla., for defendants.
   FINDINGS OF FACT AND CONCLUSIONS OF LAW

NESBITT, District Judge.

THIS CAUSE came before the Court upon a suit for declaratory and injunctive relief, seeking to prevent the enforcement and collection of fines assessed against the Plaintiffs by the United States Immigration and Naturalization Service (hereinafter “INS”) for their violation of 8 U.S.C. § 1323 by bringing undocumented aliens to this country from Cuba during the so-called “Mariel boatlift.” This suit was brought after the decisions of the INS District Director were affirmed by the Board of Immigration Appeals. The Court heard the matter non-jury and after due consideration of the administrative record below and the evidence and testimony presented at trial, the Court makes the following findings of fact and conclusions of law.

FINDINGS OF FACT ■

The Plaintiffs in this action are four fishermen who transported Cuban nationals from Mariel, Cuba to this country during April and May 1980. Plaintiff RICHARD BRULAND is the owner of the three vessels involved in this case, and Plaintiffs RAYMOND BRULAND, VANCE HAGER, and WILLIAM BALDWIN were the captains of the three vessels which brought back aliens from Mariel harbor. Plaintiff WILLIAM BALDWIN failed to appear for the trial of this cause, and his claims were dismissed with prejudice at the commencement of the trial on September 17, 1984.

The Defendants were at all times relevant officials of the INS and the United States Customs Service (hereinafter “Customs”), including the District Director of the INS, JOE D. HOWERTON.

All three of the vessels involved in this action departed from Florida on April 25, 1980, intending to go to Mariel, Cuba. The Plaintiffs testified that they made the voyages at the request of certain Cuban-Americans who were seeking to pick up relatives and/or friends seeking to leave Cuba. These Cuban-Americans accompanied the vessels to Cuba, and agreed to make certain payments to the Plaintiffs to compensate them for making the trip by an advance cash payment, and an additional payment upon arrival of the relatives and friends on Plaintiffs’ vessels. It is undisputed that none of the Plaintiffs ever sought or received permission from any official of INS, Customs, or the United States Coast Guard to make the trip to Mariel and bring back any Cuban nationals to this country.

The Plaintiffs testified that they attempted to determine whether it was legal to go to Mariel and bring back Cuban nationals to this country. They stated that they made the voyages only after they had satisfied themselves that it was in fact permissible to go and bring back Cubans from Mariel.

However, the Plaintiffs also admitted that none of them ever even attempted to contact either Customs or the INS to check on the legitimacy of their intended mission. Rather, they relied on the fact that other fishermen in Marathon, Florida reportedly said that it was permissible to transport persons from Cuba to the United States. As well, the Plaintiffs stated that they relied on the advice given by Ms. Cathy Gaines, a secretary at the Keys Fisheries, Inc. in Marathon. The Plaintiffs testified that Gaines made the general announcement that she had contacted the Customs office in Marathon and had been told that there was no problem with the boats going to Mariel to pickup Cuban nationals, and that the captains needed only to fill out certain forms before and after the trip to insure the legality of their actions.

The testimony of the Customs Service officers who appeared at the trial of this cause tells a far different story than the one told by the Plaintiffs. The Customs officials stated that no one was told that it was legal to go to Mariel to bring back Cuban nationals. As well, there was testimony indicating that an official written INS warning to captains and owners was published on April 23, 1984, and was posted at the Customs office in Marathon on April 24, 1984, before the departure of the Plaintiffs’ vessels. Finally, each of the Customs inspectors testified that all vessel owners and captains who sought Customs clearance to Mariel were advised of the INS warning.

Reviewing the weight of the evidence and testimony presented as well as the credibility of the various witnesses, the Court finds that none of the Plaintiffs ever received permission from any Government official, including Customs officers and INS representatives, prior to departing for Mariel, on April 25,1980. Additionally, the Court takes into account the fact that the Plaintiffs neither presented Cathy Gaines as a witness at trial nor explained why she did not appear, despite the fact that she formed the basis for their belief that their voyages to Mariel to retrieve Cubans were legal.

The Plaintiffs also stated that they believed that the Coast Guard was giving tacit approval to those returning with Cuban nationals picked up at Mariel, since the Coast Guard was in fact assisting vessels in distress, and also enlisting other private vessels to help vessels overloaded with Cuban nationals being brought back from Mariel.

However, Lt. Commander Kenneth Gray of the Coast Guard testified that it was the mission and duty of the Coast Guard to attempt to assist vessels in distress, regardless of the legality of the voyages which those vessels may have undertaken. Thus, the fact that the Coast Guard did in fact assist other vessels laden with Cuban nationals brought back to this country from Mariel is completely irrelevant to the Plaintiffs’ claims, and could have formed no reasonable basis for the Plaintiffs to believe that they were indeed acting within the law in going to Mariel and bringing back Cuban nationals.

It is very important to point out that none of the Plaintiffs attempted to determine the conditions inside Mariel harbor before they actually arrived there. Nor did they even attempt to find out whether they would be allowed to pick up the Cubans they were going for. They simply set off for the harbor of a hostile nation, a nation they knew was a Communist military dictatorship from which people were desperately trying to escape. In fact, Plaintiffs RAYMOND BRULAND and VANCE HAGER both admitted that they observed Cuban gun boats and helicopters on patrol before they actually entered Mariel harbor. Despite these warning signs, the Plaintiffs went into the harbor.

After entering the harbor, the Plaintiffs proceeded to dock their vessels and they attempted to locate the Cuban nationals whom they had come to pick up. At this point, the Plaintiffs realized that the Cuban government was requiring other American vessels to take on large numbers of unwanted Cuban nationals. Plaintiff RAYMOND BRULAND radioed instructions to his captains to return to Florida, but Plaintiffs RICHARD BRULAND and VANCE HAGER testified that they were unable to leave the harbor without taking on a load of Cubans. Although none of the Plaintiffs’ vessels attempted to leave unloaded, they testified that they saw other American boats forcibly turned back to the docks when they did attempt to leave unloaded.

Finally, the Plaintiffs’ vessels were loaded by the Cuban government, and they returned to Key West, Florida. The M/V “Lady Violet” returned on May 4, 1980 with some 85 undocumented Cuban nationals aboard, the M/V “Captain Ray” returned on May 4, 1980 with 92 undocumented Cuban nationals aboard, and the M/V “Fern Elinore” returned on May 16, 1980 with 178 undocumented Cuban nationals aboard.

Based on the facts set out above, the INS served Notices of Intent to Fine pursuant to 8 U.S.C. § 1323 on each of the Plaintiffs. The fine was to be One Thousand Dollars ($1,000.00) for each alien brought into the United States without proper entry documentation, and the fine was to be imposed against both the captain and the owner of the vessel on which those aliens were brought in. Accordingly, RAYMOND BRULAND, captain of the “Captain Ray” was served with a $92,000 Notice; VANCE HAGER, captain of the “Lady Violet” was served with an $85,000 Notice; and WILLIAM BALDWIN, captain of the “Fern Elinore” was served with a $178,000 Notice. As well, as owner of all three vessels in issue, RICHARD BRU-LAND was served with three notices, $92,-000 for the “Captain Ray”, for $85,000 for the “Lady Violet”, and for $178,000 for the “Fern Elinore”.

After being served with the Notices of Intent to Fine, the Plaintiffs were accorded all of the rights to which they were entitled within the regulatory framework surrounding the enforcement of 8 U.S.C. § 1323 by the INS. The Plaintiffs all took advantage of their opportunity to present written statements opposing the Notices of Intent to Fine, and they all also appeared personally before an INS officer, to present mitigating factors in opposing the assessment of the fines against them.

After being allowed to present their written and oral objections and evidence, the District Director of the INS, Defendant HOWERTON, entered Final Decisions in all four of the Plaintiffs’ cases. These Final Decisions were procedurally correct, being in writing with included discussion of the facts and law relied on by the District Director. The fines arising from the voyages of the “Fern Elinore” and “Lady Violet” were sustained in full, while the fine arising from the voyage of the “Captain Ray” was reduced to $34,000, based on the number of Cubans the “Lady Violet” had intended to pick up, rather than the number actually returned. The District Director did not exercise his prosecutorial discretion to reduce the other fines because he believed that the voyage of the “Captain Ray” was the only one of the three voyages involved herein which was not profit motivated.

All the Plaintiffs appealed the Final Decisions to the Board of Immigration Appeals, which dismissed the appeals and sustained in full all the fines imposed except for those in connection with the “Lady Violet”. Due to a documentation problem, the fines arising from that voyage were reduced to $84,000. It is from these decisions that the Plaintiffs filed their suit for declaratory and injunctive relief.

CONCLUSIONS OF LAW

The Plaintiffs in this case are challenging the results of the INS administrative proceedings whereby fines were levied against them. The Court has authority to review the decision of the INS pursuant to 5 U.S.C. § 704, but its scope of review is limited to determining whether the INS’s actions were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. In making this decision, the Court considers:

whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136 (1971). Although in this case the Court has heard additional live testimony and received evidence at trial, to be considered in addition to the administrative records pertaining to the INS’s action against these Plaintiffs, the standard of review to be applied remains the above-described abuse of discretion standard.

The Plaintiffs rely on three arguments in attempting to avoid the fines imposed. They claim that the government’s actions during the events in question estop the INS from collecting these fines; that the defense of duress and coercion applies since the Cuban authorities forced them to load their boats with unwanted Cuban nationals; and, that failing these defenses, that the INS should have used its discretion to remit the fines based on the Plaintiffs’ exercise of due diligence as set forth in 8 U.S.C. § 1323(c).

The Defendants take the position that the INS action must be affirmed within the limited scope of review available to this Court, as clearly being both supported by the facts on the record and as a proper application of the law to those facts. At the administrative level, the defenses of duress and estoppel were rejected as not established by the facts, and the INS and Board of Immigration Appeals both refused to remit the fines imposed. The Defendants assert the additional claim that the defense of duress is not even applicable to a violation of 8 U.S.C. § 1323, and that even if it had been established, that factor would be irrelevant to a determination of the Plaintiffs’ liability.

Initially, the Court is aware of the fact that the Plaintiffs have not challenged the applicability of 8 U.S.C. § 1323 to this action. Nor did they (or could they) contest the establishment of a prima facie case against them for violating the statute. Clearly, 8 U.S.C. § 1323(a) makes it unlawful to bring an alien without an unexpired visa to this country, and 8 U.S.C. § 1323(b) provides for the imposition of a fine of $1,000 for each illegal alien so transported, said fine to be imposed against both the captain and the owner of the vessel on which the alien was brought in. Further, 8 U.S.C. § 1323(c) allows for remission of the fine if prior to departure from the last foreign port before coming to this country, the captain and/or owner did not know and could not have ascertained by exercise of due diligence, that the persons transported were aliens for whom visas were required.

Having reviewed the evidence at trial and the record below, the Court concludes that the Plaintiffs did in fact violate 8 U.S.C. § 1323 by bringing undocumented Cuban nationals to this country. As well, the Court concludes that the Plaintiffs were accorded all their procedural entitlements before the INS and the Board of Immigration Appeals, such as would allow the Court to sustain the Final Decisions of the District Director and the Board. The only question for serious consideration by this Court is whether the INS decision rejecting the Plaintiffs’ proferred defenses was arbitrary, capricious, or an abuse of discretion.

The Plaintiffs’ estoppel argument is based on their allegations that certain government officials in both the Customs Service and the Coast Guard were giving approval to and actually encouraging people to make the trip to Mariel to bring back Cubans. The District Director rejected this defense as not established by either fact of law, and having reviewed the record below and considered the testimony given at trial, the Court finds that this decision should be affirmed, as a proper application of the law to the facts as found by the District Director.

This case involves the government, acting through the INS, acting in its sovereign, as opposed to its proprietary, capacity. In this role, it is still questionable whether the government can ever be subject to a defense of estoppel, even where “affirmative misconduct” by the government is established. Federal Deposit Insurance Corporation v. Harrison, 735 F.2d 408 (11th Cir.1984); Deltona Corporation v. Alexander, 682 F.2d 888 (11th Cir.1982).

In a recent case involving an estoppel claim against the INS, based on alleged unreasonable delay in the processing of a citizenship application, the United States Supreme Court stated that:

the evidence that the Government failed to fulfill its duty in this case is at best questionable. The only indication of negligence is the length of time that the INS took to process respondent’s application. Although the time was indeed long [18 months], we cannot say in the absence of evidence to the contrary that the delay was unwarranted. $ * * * * *
This case does not require us to reach ... whether affirmative misconduct in a particular case would estop the Government from enforcing the immigration laws. Proof only that the Government failed to process promptly an application falls far short of establishing such conduct.

I.N.S. v. Miranda, 459 U.S. 14, 18-19, 103 S.Ct. 281, 283-284, 74 L.Ed.2d 12 (1982).

As Miranda makes clear, a claim of estoppel against the INS in this setting should not even be considered unless the claimant establishes the threshold fact of affirmative misconduct on the part of the government. And as interpreted by the Court of Appeals for the Eleventh Circuit, the anticipated affirmative misconduct must amount to more than mere “silence, acquiescence, or even negligence”. Deltona Corporation v. Alexander, supra at 892, n. 6.

In this case, the Court has found that none of the Plaintiffs sought governmental approval for their voyages to Mariel, and also that the Customs and INS officials were in fact warning people not to go to Mariel for the purpose of bringing back Cuban nationals. Accordingly, the Court concludes that there was no affirmative misconduct by any government agency, and as such, the District Director was correct, and was in fact compelled to reject the Plaintiffs’ proferred defense of estoppel against the government and the Defendants.

In rejecting the proferred defense of estoppel, the Court takes note of the decision in Lyden v. Howerton, Case No. 83-2682-CIV-JLK (S.D.Fla. June 28, 1984), where Chief Judge King held the government to be estopped from collecting INS fines imposed against other captains and boat owners who had transported Cuban nationals from Mariel to this country. In the Lyden case, the court found that there was affirmative misconduct by the government, to the extent that certain of the plaintiffs therein had been encouraged and assisted by Customs officers in setting out for Mariel to pick up Cubans. This Court reaches a result contrary to that in Lyden due to the differing findings of fact concerning the conduct of government officials at Marathon and Key West.

The Plaintiffs have also attempted to rely on a defense of duress and coercion, claiming that they only brought back the undocumented aliens after they were forced to by the Cuban authorities as a condition for being allowed to leave Mariel harbor. To this effect, the Plaintiffs testified to the show of military force displayed by the Cuban government in the harbor.

Initially, the Defendants took the position that duress was not available as a defense to a violation of 8 U.S.C. § 1323. As well, the Defendant urged that the Court affirm the finding of the District Director, who rejected the claim of duress and coercion after reviewing the claim on its substantive merits.

Two other Divisions within this District have accepted the defense of duress and coercion raised by captains and owners who went to Cuba during this period and brought back boatloads of undocumented Cuban nationals. Lyden v. Howerton, supra; Pollgreen v. Morris, 579 F.Supp. 711 (S.D.Fla.1984). However, the Court of Appeals for the Eleventh Circuit only recently spoke to the applicability of the duress defense in connection with an alleged violation of 8 U.S.C. § 1323.

The issue was addressed, albeit indirectly, in United States v. Blanco, 754 F.2d 940 (11th Cir.1985). The Blanco case dealt with a boat captain who had gone to Mariel and brought back undocumented Cubans during the same time period as the instant case, the spring of 1980. The Court of Appeals reversed the district court’s findings that duress and coercion had been established as a defense to the imposition of fines by the INS. The appeals court relied on the fact that the captain has recklessly or negligently placed himself into a setting where it was likely that he would in fact be subject to duress to bar his use of that defense.

The Blanco case is helpful on two issues. First, it provides a current and concise analysis and application of the law regarding duress to the situation before this Court. Secondly, it also resolves the issue of whether duress is even available as a defense to an INS fine proceeding under 8 U.S.C. § 1323. Although the opinion did not address this issue directly, implicit in its holding is the finding that the defense was available but not warranted under the particular facts and circumstances of the Blanco record.

Accordingly, this Court will proceed to review the merits of the Plaintiffs’ duress and coercion claims. In order to establish the defense of duress, the Plaintiffs, must show that they:

performed the unlawful act because (1) [they were] under an immediate threat of death or serious bodily injury, (2) [they] had a well grounded fear that the threat would be carried out, and (3) [they] had no reasonable opportunity to escape.

United States v. Blanco, supra at 943; United States v. Shapiro, 669 F.2d 593 (9th Cir.1982). After reviewing these factors, the Court must then consider the conduct of the Plaintiffs, since:

[a] claim of duress and coercion will not afford a valid excuse when [one] has recklessly or negligently placed himself in a situation in which it was probable that he would be subject to duress. (Emphasis added.)

United States v. Blanco, supra at 943 citing United States v. Agard, 605 F.2d 665, 667 (2d Cir.1979).

Reviewing the case before the Court, it is unnecessary to consider whether the Plaintiffs were in fact subject to duress or coercion exerted by the Cuban government, because the Plaintiffs’ own conduct bars them from availing themselves of the defense.

As the Court previously found, none of the Plaintiffs attempted to determine the conditions at Mariel at any time prior to entering the harbor. Aware that they were sailing to a hostile nation controlled by a Communist military dictatorship, they entered the harbor despite the fact that they saw gun boats and helicopters on patrol while they were still outside of the harbor. Based on these facts as found, it cannot be contested that the Plaintiffs were at least negligent, if not clearly reckless, in entering Mariel harbor. Because the Plaintiffs negligently or recklessly placed themselves in a position where it was probable that they would be subject to duress at the hands of the Cuban government, the defense of coercion and duress is not available to these Plaintiffs, and the District Director was correct in sustaining the fines imposed by the INS against the Plaintiffs.

The final defense raised by the Plaintiffs is that of “due diligence” as set out in 8 U.S.C. § 1323(c). At trial, the Plaintiffs attempted to establish either that they believed the Cubans they took on board had the proper visas, or that they believed that in fact visas were not required.

The remission provision of § 1323(c) is clearly not applicable in this case. The Plaintiffs made no serious effort to determine whether Cubans taken on board did or did not have proper visas. The fact was that by their own testimony, the Plaintiffs made it clear that they had no control over who was loaded or not loaded. As for their belief that visas were not required for the Cubans brought back, their belief is completely irrelevant, as 8 U.S.C. § 1323 is in effect a strict liability provision against those who transport undocumented aliens to this country. Accordingly, the District Director properly rejected the Plaintiffs’ requests for remission of the fines imposed under the “due diligence” defense.

CONCLUSION

For the reasons set out by the Court in the above findings of fact and conclusions of law, the Court finds that the Final Decisions of the District Director of the INS as modified by the Board of Immigration Appeals should be AFFIRMED, and judgment entered in favor of the Defendants on all claims raised by all Plaintiffs.


author: CANNELLA, District Judge:

text:
    The ESTATE OF Nathan MASSELLI, Deceased, by William MASSELLI, Parent and Heirs at Law of Decedent’s Estate, Plaintiffs, v. Leon SILVERMAN, Bart M. Schwartz, James T. McShane, Ronald Schiavone, Theodore Geiser, Marcia Kramer, Philip Buono, Salvatore Odierno, John Doe, Joe Doe and Frank Doe, Defendants.
    No. 84 Civ. 5958 (JMC).
    United States District Court, S.D. New York.
    March 28, 1985.

      William Masselli, pro se.
    Rudolph W. Giuliani, U.S. Atty. for the S.D.N.Y., New York City (Jane E. Bloom, Asst. U.S. Atty., New York City, of counsel), for defendants Leon Silverman, Bart M. Schwartz, and James T. McShane.
   MEMORANDUM AND ORDER

CANNELLA, District Judge:

Defendants Leon Silverman’s, Bart M. Schwartz’s and James T. McShane’s motion to dismiss is granted. Fed.R.Civ.P. 12(b)(6).

FACTS

The events that lead to this civil rights action began on December 29, 1981, when the United States Court of Appeals for the District of Columbia Circuit appointed Leon Silverman as Special Prosecutor. Mr. Silverman was to investigate whether Secretary of Labor Raymond J. Donovan had been present when an official of Schiavone Construction Company, of which Donovan was then Executive Vice-President, made an illegal cash payment to a union official. Silverman was also directed to prosecute any violations of federal law that were discovered. Shortly thereafter, Bart M. Schwartz was appointed Assistant Special Prosecutor and James T. McShane was hired as an Investigator. Plaintiff William Masselli claims that his son, Nathan Masselli, worked for the investigators as an informer. On August 25, 1982, two months after the investigation was completed and a report issued, Nathan Masselli was murdered. Philip Buono and Salvatore Odierno have been convicted of murder in connection with Nathan’s death.

Plaintiff alleges that Silverman, Schwartz, and McShane conspired together “to avoid disclosure of Raymond Donovan’s actual involvement with construction contract procurement and the underworld,” and, as part of that conspiracy, revealed information to Ronald Schiavone, which led to the murder of Nathan. He claims that McShane informed Schiavone that Nathan Masselli was an informer for the Special Prosecutor. The Report of the Special Prosecutor, which was in large part sealed, indicates that Nathan Masselli was interviewed by the Special Prosecutor’s staff and that several of his phone conversations with Schiavone . Construction Company’s house counsel were recorded.

Plaintiff also claims that Silverman, Schwartz and McShane disseminated information about Nathan to news reporters to “discredit Masselli in order to justify disregarding Masselli’s testimony.” He claims that defendant Marcia Cramer publicized these false statements about Nathan, knowing that they were false. Finally, he alleges that “members of the conspiracy” agreed with defendants Buono and Ordierno to murder Nathan. It is not at all clear what plaintiff alleges with respect to defendant Theodore Geiser, other than that at Schiavone’s direction, he hired ex-FBI agents to find out what the Special Prosecutor had found out.

Plaintiff brings the claim pursuant to 42 U.S.C. § 1983. With respect to Silverman, Schwartz, and McShane, who were all federal agents at the time in question, however, the Court presumes that plaintiff intends to base jurisdiction upon the doctrine enunciated in Bivens v. Six Unknown Named, Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). With respect to the other defendants, none of whom have joined in this motion to dismiss, no basis of jurisdiction is alleged or can be presumed because none of these defendants is either a federal or a state agent and the complaint indicates no facts to suggest that diversity jurisdiction might be appropriate.

Plaintiff also alleges “violations” of 28 U.S.C. §§ 1346(b), 2680(h), and 2401(b). Because all of these sections apply only to suits against the United States, which is not a party to this suit, these claims are not addressed by the Court and are hereby dismissed.

DISCUSSION

Although the constitutional basis of the civil rights claims in this case is not clearly articulated, presumably the gravamen of the complaint is that Nathan was deprived of his life without due process of law. Thus, the action properly belonged to Nathan and can only be brought as a surviving action. Although the Civil Rights Act of 1871 contains no express provision for the survival of section 1983 claims, 42 U.S.C. § 1988 permits the incorporation of state law when necessary to furnish suitable remedies for section 1983 claims. Federal courts have construed section 1988 to incorporate into section 1983 state statutes governing survival actions, see Moor v. County of Alameda, 411 U.S. 693, 702-03 n. 14, 93 S.Ct. 1785, 1792 n. 14, 36 L.Ed.2d 596 (1973); Barrett v. United States, 689 F.2d 324, 331 (2d Cir.1982), cert. denied, 462 U.S. 1131, 103 S.Ct. 3111, 77 L.Ed.2d 1366 (1983), and have applied the same state statutes in Bivens claims, see Beard v. Robinson, 563 F.2d 331 (7th Cir.1977), cert. denied, 438 U.S. 907, 98 S.Ct. 3125, 57 L.Ed.2d 1149 (1978).

Defendants’ first ground for dismissal is that William Masselli is prohibited by New York’s wrongful death statute, N.Y.E.P. T.L. § 5-4.1 (McKinney’s 1981), from bringing this action because he is not Nathan Masselli’s personal representative and, were plaintiff to be so appointed at this time, the action would be barred by the two-year statute of limitations governing wrongful death actions.

Under New York law, there exists a fine distinction between actions that belong to the decedent and, by virtue of a procedural statute, survive his death, N.Y.E.P.T.L. § 11-3.2 (McKinney’s Supp.1984-1985), and wrongful death actions that are created by statute and which belong to the distributees of the decedent, N.Y.E.P.T.L. § 5-4.1. Because this action alleges an unconstitutional deprivation of Nathan’s life, without due process of law, the right of action belongs to Nathan; it is Nathan’s injuries for which an action exists. Therefore, the action is a surviving action and is governed by section 11-3.2.

Section 11-3.2 requires that all surviving actions be brought by a legally appointed representative. See e.g., Mogavero v. Stony Creek Dev. Corp., 53 A.D.2d 1021, 1022, 385 N.Y.S.2d 899, 900 (4th Dep’t 1976). Because William Masselli is not a legally appointed representative, he has no standing to bring this action. Therefore, the action is dismissed. In the interests of efficiency, however, because the issues have been fully briefed, the Court addresses the question whether a properly appointed representative would be barred from reopening the action in the future.

Unlike section 5-4.1, section 11-3.2 has no separate statute of limitations because it is merely a procedural statute and does not create a right of action. Thus, the governing statute of limitations for surviving claims is that which would have governed the action if it had been brought by the decedent, with one exception not relevant here.

In Bivens actions, as in section 1983 actions, the governing statute of limitations is that which governs the most similar state cause of action. See Board of Regents v. Tomanio, 446 U.S. 478, 484, 100 S.Ct. 1790, 1795, 64 L.Ed.2d 440 (1980). The Second Circuit has held that section 1983 actions in New York are limited by the three-year statute of limitations of N.Y.C.P.L.R. § 214(2) (McKinney’s 1972). See Keating v. Carey, 706 F.2d 377, 382 (2d Cir.1983); Pauk v. Board of Trustees of City Univ., 654 F.2d 856, 861-62 (2d Cir.1981), cert. denied, 455 U.S. 1000, 102 S.Ct. 1631, 71 L.Ed.2d 866 (1982). Although the Circuit has not ruled on the issue, the Court finds that the same statute of limitations applies to a Bivens suit for the reasons stated in Ross v. United States, 574 F.Supp. 536, 541 (S.D.N.Y.1983); see also Beard v. Robinson, 563 F.2d 331, 338 (7th Cir.1977) (applying same statute of limitations to Bivens and section 1983 actions), cert. denied, 438 U.S. 907, 98 S.Ct. 3125, 57 L.Ed.2d 1149 (1978). Thus, Nathan Masselli’s legally appointed representative has three years from the accrual of the cause of action within which to reopen the suit.

Under federal law, a cause of action accrues when plaintiff knew or had reason to know of his injury. Keating v. Carey, 706 F.2d at 382; Pauk v. Board of Trustees, 654 F.2d at 859. Quite obviously, the cause of action in this case arose upon Nathan’s death because the constitutional injury, i.e., loss of life, did not take place until Nathan’s death. Therefore, the representative of Nathan’s estate has until August 25, 1985, three years after Nathan’s death, to reopen this action.

To the extent that the complaint implicitly alleges common law torts or a state law wrongful death action against the three federal defendants, these claims are also dismissed. The only conceivable bases of jurisdiction are diversity jurisdiction, 28 U.S.C. § 1332, or pendent jurisdiction. The first is not alleged, and no facts are present to indicate its appropriateness. The second is insufficient because the underlying federal claim has been dismissed. See United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). Additionally, the wrongful death claim, like a surviving claim, must be brought by a legally appointed representative, N.Y.E.P.T.L. § 5-4.1, and any tort claims could be brought only as surviving actions and thus must be dismissed for the same reasons as the constitutional claims. Therefore all claims against the three federal defendants are dismissed, without prejudice to reopening by a properly appointed representative before August 25, 1985.

The other defendants, Ronald Schiavone, Theodore Geiser, Marcia Kramer, Philip Buono, Salvatore Odierno, John Doe, Joe Doe and Frank Doe have not brought motions to dismiss. The Court nonetheless dismisses these claims sua sponte because no basis for jurisdiction has been alleged. See Fed.R.Civ.P. 12(h)(3).

CONCLUSION

Defendants’ motion to dismiss is granted. Fed.R.Civ.P. 12(b)(6).

The action is dismissed against all defendants, Fed.R.Civ.P. 12(h)(3), and the Clerk of the Court is directed to enter Judgment dismissing the complaint.

SO ORDERED.

      . Complaint at ¶ 4.C., 84 Civ. 5958 (JMC) (filed Aug. 20, 1984).

      . Id., at ¶ 4.F.

      . If the statute of limitations will expire less than one year after death, a representative bringing a surviving action is given a full one year after decedent’s death within which to bring the action. N.Y.C.P.L.R. § 210 (McKinney’s 1972). In light of the Court’s decision, this exception is irrelevant.

      . The federal defendants also allege that they are absolutely immune from suits based upon common law torts. Because of the vagueness of the complaint and the outcome of the motion, the Court need not reach this issue at this time.


author: WILLIAM C. CONNER, District Judge:

text:
    Daniel P. CORRIGAN and James McQuade, Plaintiffs, v. NEW YORK UNIVERSITY MEDICAL CENTER, Defendant,
    No. 83 Civ. 6360 (WCC).
    United States District Court, S.D. New York.
    March 28, 1985.

      Harold M. Weiner, New York City, for plaintiffs.
    S. Andrew Schaffer, New York City, for defendant; Terrance J. Nolan, New York City, of counsel.
   OPINION AND ORDER

WILLIAM C. CONNER, District Judge:

This is an action commenced pursuant to the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., by plaintiffs Daniel P. Corrigan (“Corrigan”) and James McQuade (“McQuade”) against the New York University Medical Center (“the Medical Center”). Corrigan and McQuade allege that they both applied for positions as nursing attendants/orderlies at the Medical Center, and that the Medical Center refused to hire them because of their ages. At the time of the alleged discrimination, Corrigan was fifty-one and McQuade was fifty-three; the ADEA establishes a class of protected individuals between the ages of forty and seventy.

According to the complaint, both plaintiffs were interviewed by Kathleen Ames (“Ames”), the staffing coordinator in defendant’s department of nursing, and both were asked their ages during the interview. Each “perceived a chilling in the interview climate” after he responded to this question, and several days later, each was rejected. Complaint at ¶!¶ 8, 13.

The matter is now before the Court on the Medical Center’s motion for summary judgment. Defendant contends that it had several reasons for refusing to offer plaintiffs employment, none of which was related to their ages. The Medical Center, through the affidavit of Kathleen Ames, denies that either plaintiff was asked his age during his interview. Ames Aff. at II2. It insists that neither plaintiff made a favorable impression, that each was vague about his previous employment history, and that both repeatedly expressed dissatisfaction with previous positions in which they were required to work with Filipinos who insisted on speaking Tagalog rather than English in plaintiffs’ presence. Brantley Aff. at 11114, 5; Sanchez Aff. at ¶¶ 4, 5; Ames Aff. at H114, 5, 8, 9. According to defendant, these factors rendered Corrigan and McQuade unqualified and undesirable for the position of nursing attendant. Ames Aff. at ¶ 13.

Moreover, the Medical Center asserts that Kathleen Ames learned shortly after interviewing plaintiffs that the temporary position for which they had applied was no longer open; apparently, the woman whose position was to be filled temporarily had been on medical disability leave, and she unexpectedly announced she would be returning to work a few days later. Ames Aff. at II10. In further support of the motion, Ames avers that the next two openings for nursing attendants were filled by individuals over the age of forty. Id. at U 9. Defendant argues, on the basis of all these facts, that plaintiffs cannot establish a prima facie case of age discrimination, and that defendant is therefore entitled to summary judgment. For the reasons below, I must agree.

Legal Standards

Summary judgment is appropriate only where the Court is satisfied there exists no genuine issue with respect to any material fact, and the moving party is entitled to judgment as a matter of law. Rule 56, F.R.Civ.P. Rule 56(e) provides for the submission of affidavits supporting and opposing summary judgment, made on personal knowledge and setting forth such facts as would be admissible in evidence. By considering these affidavits and other relevant documentary materials, the Court can determine whether the nonmoving party has any real support for its version of the facts. Rule 56(e) further provides:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

Although these principles can be simply stated, they are not always easily applied in the context of employment discrimination actions. This is because the United States Supreme Court has established a three-step process for presenting proof and evaluating evidence at the trial of Title VII claims, see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and a court’s summary judgment analysis must therefore be tailored to reflect this framework.

Under McDonnell Douglas, as applied to ADEA cases, a plaintiff has the burden of making out a prima facie case of discrimination by showing: (1) that he is in the protected age group; (2) that he applied and was qualified for a job for which the employer sought applicants; (3) that he was rejected; and (4) that after his rejection, the position remained open and the employer continued to seek applicants with the same qualifications, or filled the position with someone outside the protected age group. Id. at 802, 93 S.Ct. at 1824; see also Reich v. New York Hospital, 513 F.Supp. 854, 859 (S.D.N.Y.1981). The prima facie showing is designed to set forth “proof of actions taken by the employer from which we infer discriminatory animus because experience has proved that in the absence of any other explanation it is more likely than not those actions were bottomed on impermissible considerations.” Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978).

If the plaintiff makes out a prima facie case, the burden of production shifts to the defendant to come forward with some evidence of a legitimate, non-discriminatory reason for its employment decision. If the defendant succeeds in rebutting the prima facie case, the burden then shifts back to the plaintiff to demonstrate by a preponderance of the evidence that the reason proffered is merely a pretext for discrimination. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981).

Discussion

As noted above, the principles governing summary judgment can be applied to claims brought under Title VII. However, it is necessary for a court considering such a motion to determine, as to each of the three steps in the McDonnell Douglas formulation, whether there exists a genuine issue with respect to any material fact. In the context of this particular case, then, defendant must establish the absence of any genuine issue with respect to whether Corrigan and McQuade can make out all the elements of a prima facie case. Reich, 513 F.Supp. at 860. Of course, the Court must draw all inferences in favor of plaintiffs, as they are the nonmoving parties. Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 444 (2d Cir.1980).

There is no doubt but that Corrigan and McQuade would be able to establish two of the four McDonnell Douglas elements; both men were between the ages of forty and seventy when the alleged discrimination occurred, and both were rejected after applying for employment with defendant. Whether plaintiffs would be able to demonstrate their qualifications for the position is far from certain; however, I am satisfied for present purposes that granting summary judgment in favor of defendant on this point would be inappropriate. I must look, then, to the fourth and final issue in a prima facie ease: whether the position in question remained open and the Medical Center sought other applicants after rejecting plaintiffs, or whether the Medical Center filled the position with someone outside the protected age group.

Defendant asserts that plaintiffs cannot establish the final element because the temporary full-time position for which they applied dematerialized before any action was taken on their applications. The affidavits of Angelyce Brantley (“Brantley”) and Nancy Sanchez (“Sanchez”), both of whom are employed in defendant’s personnel department, indicate that Corrigan and McQuade were referred to the hospital by District 1199 of the National Union of Hospital and Health Care Employees (“the Union”), and that the full-time position for which they applied had been temporarily vacated by an employee on medical disability leave. Sanchez Aff. at 116; Brantley Aff. at 113. Sanchez conducted a preliminary screening interview of McQuade on or about March 30, 1982, and Brantley interviewed Corrigan on or about March 31, 1982.

Plaintiffs were referred from the personnel department to Kathleen Ames, whose affidavit states that she was seeking to fill a position temporarily vacated by Jacqueline Armstrong. Ames Aff. at 11113, 7. Defendant’s Exhibit S, a copy of the Employee Requisition Form signed by Ames on March 23, 1982 requesting a temporary full-time employee to replace Armstrong, supports this contention. Ames interviewed Corrigan on April 19, 1982 and McQuade the following day; she told them to contact her by telephone on April 23rd regarding the status of their applications. Ames Aff. at 11113, 5, 7, 9.

According to Ames, she was notified sometime before speaking with plaintiffs on April 23rd that Jacqueline Armstrong would be returning to work on April 27, 1982. Ames Aff. at ¶ 10. The fact of Armstrong’s return is documented by defendant’s Exhibit U, a Disability and Workmen’s Compensation Form. In any event, when plaintiffs called Ames on April 23rd, she advised them that the position was no longer open.

Plaintiffs’ affidavits state that Corrigan and McQuade were informed by the Union that “the jobs [they] were applying for were both full and part time.” Corrigan Aff. at 117. They aver, moreover, that the Union’s referral card listed the job as “T/P,” meaning there were temporary and permanent jobs available. Id. The first contention is inadmissible as hearsay, at least for purposes of establishing the availability of other positions or the fact that the Medical Center solicited applicants. As such, it cannot be used under Rule 56(e) to stave off summary judgment. The second contention is belied by defendant’s Exhibit T, a photocopy of the Union’s referral slip for McQuade, which reflects only a full-time temporary nursing attendant position at the Medical Center. For these reasons, I conclude that there exist no genuine issues with respect to whether plaintiffs applied for a particular position, and whether that position subsequently became unavailable. Thus, at best, plaintiffs could hope to establish that if there had been an opening, they would have been denied the job because of their ages. Certainly such a claim is not actionable under the ADEA.

One additional point should be noted. Defendant has never taken the position that plaintiffs would have been hired but for the evaporation of Jacqueline Armstrong’s temporary vacancy. Indeed, Kathleen Ames admits having decided not to hire Corrigan and McQuade even before she learned that Armstrong would be returning to work. Ames Aff. at ¶¶ 6, 10. While plaintiffs might have wished to use this admission to create an inference that they were impermissibly denied consideration for subsequent vacancies, such an argument would not satisfy the prima facie requirement because, according to Ames, the next available openings for nursing attendants were filled by women forty-one and fifty-three years old. Ames Aff. at ¶ 9. Thus, notwithstanding Corrigan’s conclusory allegation that “there were and have been literally dozens of jobs the defendant could have given [plaintiffs],” Corrigan Aff. at tl 22, and further notwithstanding the considerable discovery already undertaken in this action, plaintiffs have not produced a scintilla of evidence giving rise to an inference of discriminatory animus on the part of the Medical Center. Therefore, I am satisfied that no genuine dispute exists as to plaintiffs’ inability to make out a prima facie case, and that summary judgment is appropriate.

Defendant’s motion for an award of attorney’s fees as the prevailing party in this action is denied. Although the Court has concluded that plaintiffs would not be able to make out a prima facie case if this matter were to go to trial, it appears that the evidence upon which the Court primarily based this conclusion — proof that Jacqueline Armstrong returned to work unexpectedly, thereby filling the “vacancy” in question, and that the next available nursing attendant positions were filled by members of the class protected under the ADEA — was only elicited in the context of this motion for summary judgment. Indeed, defendant’s Exhibits S, T and U, all cited by the Court above, were provided only in reply to plaintiffs’ papers in opposition to the motion. While I recognize the burden placed on parties who are forced to engage in substantial motion practice before unmeritorious claims are disposed of, I am not convinced that plaintiffs persisted in maintaining an unreasonable position and thereby increased expenses to defendant after they should have realized the flaws in their case.

Accordingly, defendant’s motion'for summary judgment is granted, and each party is to pay its own attorney’s fees. The Clerk of the Court is directed to enter judgment in favor of defendant.

SO ORDERED.

      . In order to create an inference that defendant’s decision not to offer plaintiffs employment was motivated by discriminatory animus, plaintiffs have urged the Court to look only at such information relating to plaintiffs’ qualifications as was before the Medical Center when the employment decision was made. Although plaintiffs have not denied telling their interviewers of difficulties in getting along with co-workers, and have not rebutted defendant’s contention that their applications were incomplete, they are correct that the Court could not possibly find, on the basis of the undisputed information relied on by the Medical Center in making its decision, that no genuine factual issue exists with respect to their qualifications.

        On the other hand, defendant has properly noted that in order for plaintiffs to prevail at trial, they will have to demonstrate that they are, indeed, qualified. See East Texas Motor Freight v. Rodriguez, 431 U.S. 395, 404 n. 9, 97 S.Ct. 1891, 1897 n. 9, 52 L.Ed.2d 453 (1977) (“Even assuming, arguendo, that the company's failure even to consider the applications was discriminatory, the company was entitled to prove at trial that the [plaintiffs] had not been injured because they were not qualified and would not have been hired in any event.") Thus, in considering this motion, the Court may examine all available information regarding plaintiffs’ qualifications, whether elicited before or after the employment decision.
      Some of the information presented by defendant with the intent of demonstrating plaintiffs’ lack of qualifications is quite damaging, and the question whether the Court could find Corrigan and McQuade unqualified as a matter of law is a close one. Nonetheless, plaintiffs have contested the validity of much of the information, and I am unwilling to conclude that summary judgment is appropriate on the basis of the uncontested information.