author: ACKER, District Judge.

text:
    Nancy SNELL and Timothy A. Snell, Plaintiffs, v. G.D. SEARLE & CO., Defendant.
    Civ. A. No. 81-AR-0983-S.
    United States District Court, N.D. Alabama, S.D.
    Sept. 28, 1984.
    On Motion to Dismiss Oct. 10, 1984.

      R. Gordon Pate, Hare, Wynn, Newell & Newton, Birmingham, Ala., for plaintiffs.
    Lawrence B. Clark, Augusta S. Dowd, Lange, Simpson, Robinson & Somerville, Birmingham, Ala., for defendant.
   MEMORANDUM OPINION

ACKER, District Judge.

On March 13, 1984, this court denied Searle’s motion for summary judgment as to two of plaintiffs’ claims or causes of action, the first based on an alleged breach of an implied warranty and the second based on Searle’s alleged wilful or wanton conduct in that Searle is charged with continuing to market the IUD after notice of its dangerous propensities. After further discovery, Searle has now refiled its motion for summary judgment as to each of the said remaining two counts and has filed an alternative motion to dismiss the so-called wanton count as a sanction for plaintiffs’ having failed to comply with an order of this court bearing crucially on the wanton count.

The Breach of Warranty Claim

As to the Snells’ claim for breach of implied warranty, the undisputed fact is that they failed to notify Searle within a reasonable time after they discovered or should have discovered any breach. Ala. Code § 7-2-607(3)(a) (1975) provides:

The buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy.

Nancy Snell would escape from this notice requirement by saying that there is no evidence which can support an ultimate finding of fact that she was a “buyer” of Searle’s IUD within the meaning of § 7-2-607(3)(a). There are no Alabama cases precisely on point. While it is undisputed that Nancy Snell was the ultimate consumer, there is no evidence that she bought the IUD directly from Searle, or, for that matter, from anybody else. Therefore, she must be given the benefit of the doubt under Rule 56. For the sake of the argument, the court will assume that, as alleged in the complaint, she was “fitted” with the device, implying that the device was prescribed and dispensed by her physician. There is as yet no factual development as to whether or not the cost of the IUD was included in the physician’s charge or was ordered and paid for by Nancy Snell at a pharmacy. While this court in Scroggins v. A.H. Robins Co., CV 83-AR-2304-S did, in granting summary judgment for another IUD manufacturer, suggest that notice of a breach of warranty must be given within a reasonable time under the requirements of § 7-2-607(3)(a), the real basis for the decision in Scroggins was the absolute bar of the four year statute of limitations under the U.C.C. for . a breach of warranty, and the court will not bootstrap a decision in the instant case from its dictum in Scroggins.

The most important case which requires analysis on the notice issue is the case cited by the Snells, namely, Simmons v. Clemco Industries, 368 So.2d 509 (Ala.1979). In Clemco, the Supreme Court of Alabama construes the word “buyer” as used in § 7-2-607(3)(a) literally and excuses a simple “warranty beneficiary” from the notice requirement. Clemco does not answer the question in the instant case. The Alabama court there dealt not with an injury sustained by an owner or an actual consumer of an allegedly defective product, but rather with a separate, third party beneficiary of the implied warranty, namely, an employee of the ultimate consumer. The Alabama court expressly recognized the statutory definition of a “buyer” as “a person who buys or contracts to buy goods”. 368 So.2d at 513; Ala.Code § 7-2-103(1)(a) (1975). If Nancy Snell here paid the slightest consideration to her physician or to her pharmacist for her IUD, she thereupon became a “buyer” in the chain of distribution, as opposed to a simple third party beneficiary of any implied warranty of merchantability or of fitness which may have accompanied the product and ran to the benefit of the indirectly exposed public. In all likelihood, Nancy Snell “bought” this IUD from her physician. At this point, however, this crucial factual issue remains unresolved, and therefore there is no basis for a Rule 56 determination. While Nancy Snell’s case is similar to Clemco in that she did not buy the product from the defendant, her case is dissimilar in a much more important and crucial respect, namely, in that she was not an employee or a simple bystander injured by a defective product owned by someone else. In Clemco the Alabama court made sense when it concluded that a non-buyer who is injured should not be required to notify the seller. As to a non-buyer there logically can be no “seller”. This rationale in Clemco is echoed in Mattos, Inc. v. Hash, 279 Md. 371, 368 A.2d 993 (1977); Frericks v. General Motors Corp., 278 Md. 304, 363 A.2d 460 (1976); McKnelly v. Sperry Corp., 642 F.2d 1101 (8th Cir.1981); and Tomczuk v. Town of Cheshire, 26 Conn.Sup. 219, 217 A.2d 71 (1965). Unfortunately, Clemco, Mattos, Frericks, McKnelly and Tomczuk provide no final answer as to what notice of breach Nancy Snell was required to give, if any. As stated, Nancy Snell was probably not simply a third party beneficiary of an implied warranty, but was a “buyer”, who “bought” the IUD from her physician or from her pharmacist. If the evidence demonstrates that she was such a “buyer”, she was obligated under § 7-2-607(3)(a) to notify her “seller” of any breach of warranty which took place. The leading case on point is from Illinois, which like Alabama, acknowledges the demise of ‘ privity” as a prerequisite for recovery in personal injury actions grounded on breach of warranty. Goldstein v. G.D. Searle & Co., 62 Ill. App.3d 344, 19 Ill.Dec. 208, 378 N.E.2d 1083 (1978). However, the Illinois court speaks directly to the notice requirement of § 7-2-607(3)(a) [for Nancy Snell] by recognizing that a remote manufacturer [Searle] may raise as a defense to the maintenance of a suit by a subpurchaser based on the subpurchaser’s failure reasonably to notify his immediate seller of the alleged breach of warranty. The Illinois court says that “such a rule obviates placing a duty upon a consumer to notify a party with whom he has not dealt”, citing Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal. Rptr. 697, 377 P.2d 897 (1963). The reasonable assumption in Illinois, as it should be in every U.C.C. jurisdiction, is that the seller who sold directly to the injured, complaining consumer will transmit the complaint upwards in the chain of distribution so that notice ultimately will reach the true culprit. This expectation, which is implicit in § 7-2-607(3)(a) is well articulated in Firestone Tire & Rubber Co. v. Cannon, 53 Md.App. 106, 452 A.2d 192, 195 (1982). In the instant case, the Snells have filed no affidavit to suggest that either of them ever notified the physician or the pharmacy of any alleged breach of implied warranty, but the pertinent facts as to the existence or nonexistence of such notice not having been developed, and the pertinent facts with respect to whether or not the IUD was purchased by Nancy Snell as opposed to being inserted in her uterus as an experiment or as a gift, are not undisputed. Thus the warranty claim does not permit Rule 56 treatment. For what it may be worth to the parties, the court is of the opinion that if Nancy Snell paid any consideration whatsoever for the IUD, she became a “buyer” and was under an obligation to give reasonable notice to the “seller”, whoever that may have been, and that if she did not do so within a reasonable period from her discovery of the breach, she is barred under § 7-2-607(3)(a) as against Searle. For the moment, however, defendant’s motion for summary judgment as to the implied warranty claim must be denied.

The Wanton Count

Searle’s motion for summary judgment aimed at the claim for wilful or wanton conduct is based on Searle’s contention that any such cause of action is barred by the Alabama one year statute of limitations for trespass-on-the-case. Ala.Code 6-2-39 (1975). The court is faced with a dilemma, whether to follow the Fifth Circuit in Doucet v. Middleton, 328 F.2d 97 (5th Cir.1964), where the Fifth Circuit stated that an allegation of wilful or wanton conduct states a cause of action in trespass in Alabama and therefore is controlled by the Alabama six year statute of limitations, or to follow subsequent Alabama court decisions such as Sasser v. Dixon, 290 Ala. 17, 273 So.2d 182 (1973); City of Fairhope v. Raddcliffe, 48 Ala.App. 224, 263 So.2d 682 (1972); Cochran v. Hasty, 378 So.2d 1131 (Ala.Civ. App.1979); Stozier v. Marchich, 380 So.2d 804 (Ala.1980); Dumas v. Southern Guaranty Ins. Co., 408 So.2d 86 (Ala.1981); and Citizens Bank and Sav. Co. v. Wolfe Sales Co., 394 So.2d 941 (Ala.1981), which badly muddy, erode or eliminate this rigid way to achieve a longer period of limitations. The distinction between trespass and case often is a difficult one. Nancy Snell alleges in paragraph 5(g) of her complaint that Searle continued to market its IUD in reckless disregard of her health and the health of others after Searle had notice or should have had notice of the dangerous propensities of its device. Such conduct, if proven, would clearly not be an invasion of plaintiff’s person or property and is closer akin to a wanton failure to inspect, or a wanton failure to supervise, or a wanton failure to pay an insurance claim, or a wanton failure to provide adequate safety measures, the kinds of misconduct discussed in the more recent Alabama decisions which have found the one year statute of limitations for trespass-on-the-case applicable. This court is satisfied that the more recent expressions by the Alabama courts take away from personal injury plaintiffs the right to select a six year statute of limitations simply by averring and proving some “wanton” or “wilful” conduct, but rather require allegation and proof of an intentional, direct application of force. In the instant complaint, the Snells do not even use the word “wanton” or the word “wilful” to describe Searle’s conduct, but rather allege that Searle “continued to market this product in gross and reckless disregard of the health of the plaintiff and other citizens”. This conduct, if proven, constitutes case and not trespass, as this court understands the present law of Alabama. This court finds no Alabama decision which holds that such allegations state a cause of action for trespass as opposed to case. On this basis, defendant’s motion for summary judgment as to the paragraph 5(g), the so called “wanton count”, should be granted, but the Rule 56 question is mooted by the fact that Searle’s motion to dismiss the said count will be granted for the reasons which will next be discussed.

Paragraph 5(g), the so-called “wanton count”, if it has any efficacy whatsoever, depends upon on the allegation that Searle “had notice or should have had notice of the dangerous propensities of this device”. On August 11, 1981, Searle propounded interrogatories clearly designed to obtain from plaintiffs the information upon which they base the said allegation and can prove it. On December 2, 1981, plaintiffs answered by merely stating: “See medical records and complaint”. On September 7, 1984, Searle moved to require plaintiffs to respond more fully, and on September 11, 1984, this court issued the following order:

FURTHER ORDERED that plaintiffs fully answer defendant’s interrogatories and fully respond to defendant’s requests for production within 5 days from the date of this order.
Defendant’s motion to dismiss is RESERVED. .
Failure by plaintiffs to comply with this order will result in the automatic dismissal of this action.

On September 14, 1984, approximately three weeks before trial, plaintiffs responded to this interrogatory designed to obtain the information upon which plaintiffs propose to prove that the marketing of the product was in “reckless and gross disregard of the health of the plaintiff ... after the defendant had notice or should have had notice of the dangerous propensities of this device ...” by simply saying: “Unknown at this time”. This “answer” three weeks before trial is wholly unsatisfactory. The court wonders when plaintiffs expect to come by proof of this most crucial allegation, which was first made on June 25, 1981. The court cannot avoid the conclusion that defendant’s motion to dismiss the so-called “wanton count”, paragraph 5(g), is well taken, and is due to be granted, as the only sanction now appropriate under Rule 37, F.R.Civ.P.

An appropriate order will be entered.

ON MOTION TO DISMISS

When this case came on for trial on October 9, 1984, two facts appeared, one from statement of counsel in open court and the other by written stipulation. First, plaintiffs never furnished to defendant the name of any expert witness. Secondly, plaintiffs concede that no notice of breach of warranty was given by plaintiffs to anyone as to the IUD in question, in particular to the physician who inserted the offending IUD and whose bill plaintiffs paid.

The first fact is significant because of defendant’s pending motion for the sanction of dismissal for plaintiffs’ failure to offer their expert for deposition as required by the orders of this court. The second is significant because the court allowed defendant to refile its motion for summary judgment as to the remaining count or cause of action based on breach of warranty in light of plaintiffs’ admission of a failure to notify the “seller” of any breach of warranty.

Although the court would not allow plaintiffs now to present an expert witness in this case if it were remanded after any appeal by plaintiffs, the court is not prepared to grant defendant’s motion to dismiss, particularly when the motion is rendered moot by the granting of defendant’s motion for summary judgment because of plaintiff’s failure to provide any notice of breach of warranty even to the immediate seller, the reasons for which have previously been stated.

An appropriate order will be separately entered.


source: Caselaw Access Project

author: JOYCE HENS GREEN, District Judge.

license: Public Domain

text:
    Yen L. SNEAD, et al., Plaintiffs, v. UNITED STATES of America, Defendant.
    Civ. A. No. 81-2549.
    United States District Court, District of Columbia.
    Sept. 28, 1984.

      Ira S. Saul, Saul & Barclay, Fairfax, Va., for plaintiffs.
    Diane M. Sullivan, Asst. U.S. Atty., Washington, D.C., for defendant.
   MEMORANDUM OPINION

JOYCE HENS GREEN, District Judge.

Plaintiffs Yen L. Snead and Jack R. Snead bring this medical malpractice action under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq., alleging negligence in medical services performed by defendant’s agents. Specifically, plaintiffs claim that Drs. Joseph Sheffery and Thomas Wilson, both gynecologists performing medical services for the United States Department of State Health Clinic in 1979, failed to practice medicine in accordance with the required standard of care in their examinations of the female plaintiff, Yen Snead. The Sneads further allege that those physicians’ departure from the required standard of care resulted in their failure to detect Yen Snead’s existent but preinvasive cervical cancer and was a substantial factor bringing about the progression and metastasis of that malignancy. Plaintiffs seek recovery of Yen Snead’s current and future medical expenses as well as special damages including compensation for lost future income and the value of her homemaking services, compensation for her physical, mental and psychological suffering and Jack Snead’s loss of consortium and anguish, and payment of monies lost as a result of the female plaintiff’s inability to live overseas.

Plaintiff Yen Snead is a thirty-eight year old American citizen of Vietnamese birth. She is the wife of plaintiff Jack Snead, a civil engineer employed by the Agency for International Development (“AID”), an agency of the United States Government, and by virtue of her marriage is covered by the Department of State Medical Program and its regulations concerning medical examinations and treatment for AID employees and their dependents. Stip. 4-6. She is the mother of two children, whose ages were 13 and 19 at the time of trial.

The Sneads married in Vietnam on January 17, 1973 and left that country in July, 1974 when Jack Snead was assigned to an AID post in Yemen. Two years later they moved to an AID post in Egypt, where they lived until 1980. Since 1980 they have lived in the United States.

Prior to 1978, Yen Snead enjoyed good health and had no known gynecological problems. However, in 1978 her menstrual periods became heavier and increased in length from five days per month to six or seven days per month. At the recommendation of a nurse at the State Department Clinic in Cairo, Egypt, Mrs. Snead had a Papanicolaou smear (“pap smear”) taken at that clinic on November 21, 1978, for the purpose of detecting the presence or absence of gynecological pathology. The specimen was submitted to a State Department gynecologist, who interpreted the pap smear as “Negative Class I” with a low estrogen reading.

On June 29, 1979, while in the United States on home leave, the plaintiff visited the State Department Health Clinic (“the Clinic”) in Washington, D.C. for her routine and required World Wide Medical Clearance physical examination. She told the examining physician of her excessive and prolonged menstrual bleeding, and he, an internist by specialty, referred her back to the State Department Office of Medical Services for that office to arrange for a gynecological examination. The Office of Medical Services referred Mrs. Snead to Joseph Sheffery, M.D., a gynecologist performing medical services for the Clinic. Stip. 11.

Dr. Sheffery performed a gynecological examination of Yen Snead on July 2, 1979, in response to her specific complaint of excessive and prolonged bleeding with her menstrual period. As will be discussed below, the thoroughness of that examination is the subject of dispute; however, the parties fully agree that Dr. Sheffery neither performed a pap smear nor ordered a pap smear to be taken. Stip. 12. After examining Mrs. Snead, Dr. Sheffery reported his findings in her clinical record as follows:

Uterus fibrotic but no tumor found. Suggest Provera [an oral synthetic progesterone compound] 10 mg. daily [beginning on the 16th day of the patient’s menstrual cycle] and see if helps [ — ] if so repeat Provera 1 month [ — ] if not relieved should have diagnostic curettage.

In accordance with his consultation notes, Dr. Sheffery prescribed for Yen Snead medroxyprogesterone acetate tablets (Prov-era) to be taken orally. A nurse at the Clinic scheduled Mrs. Snead for a follow-up gynecological visit on July 30, 1979. Stip. 17-20.

Dr. Thomas A. Wilson, M.D., a gynecologist who was at that time associated with Dr. Sheffery and who also provided services to the Clinic, performed the July 30 follow-up examination of Mrs. Snead at the Clinic. At that visit, Dr. Wilson noted that Mrs. Snead’s problem of excessive menstrual bleeding had been arrested by the Provera and that no further treatment was necessary. Stip. 21-24. He did not recommend or arrange for follow-up treatment of Mrs. Snead overseas. PX-1, p. 52, Dep. of Yen Snead at 39. Based on the medical record, including the examinations of Doctors Sheffery and Wilson, the State Department Office of Medical Services granted Yen Snead Class I World Wide Medical Clearance on July 31, 1979. Stip. 25.

Following the grant of World Wide Medical Clearance, Yen Snead returned to Cairo, Egypt, the location of her husband’s AID assignment. According to her testimony, she continued to take Provera (brought from the United States) for a “couple of months” and experienced light periods when using the Provera but increased menstrual flow when not. In early 1980, Mrs. Snead began to experience postcoital bleeding and on March 12, 1980 she visited the American Embassy clinic in Cairo with complaints of abnormal bleeding. The record of the nurse who received Mrs. Snead’s complaint states the following:

Complains of heavy, irregular periods. Has been on Provera — prescribed by Gyn doctor in U.S. Was told D & C should be accomplished if no improvement. Now experiencing some spotting after intercourse. Referred to Dr. Younis. [Stip. 30].

The Egyptian gynecologist to whom Mrs. Snead was referred recommended that she undergo a diagnostic curettage. Worried that the facilities at his office did not appear to be sterile, Mrs. Snead asked the referring nurse at the Embassy clinic what options were available, and was advised that she could travel to Germany or the United States for the curettage. Hoping to minimize disruption to her family, and with the approval of the Embassy clinic nurse, Mrs. Snead decided to postpone the procedure until after her youngest child’s school year ended. She returned to the United States in July, 1980 and was examined by Dr. George Speck, a gynecologist, on July 29, 1980. Dr. Speck explored Mrs. Snead’s pelvic organs both bimanually and using a speculum, and in the course of his examination located a cervical lesion of unknown nature. Two days later, at Alexandria Hospital, in Virginia, Dr. Speck removed tissue from Mrs. Snead’s cervix; a biopsy was performed. The pathology report revealed the presence of a cervical tumor, measuring 2.5 X 3 cm., described as a “poorly differentiated adenocarcinoma of the cervix, Stage I-B.” Stip. 33. Dr. Speck referred Mrs. Snead to George Washington University Medical Center and Larry McGowan, M.D. On August 26, 1980, Dr. McGowan performed a radical hysterectomy, pelvic lymphadenectomy, and salpingo-oophoectomy on Mrs. Snead, and the accompanying pathology report contained the following diagnosis: “Cervix: poorly differentiated adenocarcinoma (glassy cell carcinoma).” Stip. 34-35. After the hysterectomy, Mrs. Snead returned to Dr. McGowan for follow-up examinations at 3-month intervals and took medication to relieve pelvic pain for approximately IV2 months. In January, 1983, Dr. McGowan changed the interval of her follow-up examinations to 6 months. Less than three months later, in March 1983, Mrs. Snead consulted another physician with complaints of chest pain, and that physician took a series of chest and lung x-rays, revealing a spot on Mrs. Snead’s right lung. Yen Snead was referred back to the George Washington University Medical Center, where she was hospitalized and underwent extensive (and sometimes painful) diagnostic procedures, including a lung tissue biopsy. On or about April 14, 1983, it was determined that Mrs. Snead suffers from malignancies in the lung extending into the mediastinal lymph nodes. Stip. 43. The histology of that lung carcinoma is consistent with metastasis from the uterine cervical carcinoma removed surgically in 1980. Stip. 41-44.

Since May 1983, Mrs. Snead has repeatedly undergone chemotherapy and radiation therapy in an attempt to arrest the spread of her cancer. She continues to suffer not only from the physical side effects of those treatments but also from emotional distress; she takes sleeping pills and anti-depressant medications regularly. Both Sneads testified that their sexual relations have been “drastically reduced” as a result of her illness, Tr.Vol. 3-A, pp. 17, 34. Jack Snead testified at length that his wife’s illness had devastated the relationship they once enjoyed as husband and wife. Tr.Vol. 3-A, pp. 6-34. Because of her ongoing need for oncological care, Yen Snead has been denied unrestricted World Wide Medical Clearance since July 27,1982. She is cleared to travel only to those overseas posts with adequate oncological medical facilities, none of which are posts to which Jack Snead would likely be assigned in light of his seniority and job expertise. Stip. 36-40. Because of her condition, the Sneads have remained in the United States since 1982 despite Mr. Snead’s eligibility for overseas assignment.

In this action for medical malpractice plaintiffs contend that defendant’s doctors failed to treat the female plaintiff with that degree of skill, care, or knowledge required of a doctor, which, in turn, resulted in her injury. Essentially, plaintiffs allege that the acts and omissions of defendant’s agents involved in the medical care of Mrs. Snead constitute actionable negligence. The specific issues presented at trial were (1) whether the gynecological services provided by Drs. Sheffery and Wilson on July 2, 1979 and July 30, 1979 fell below required standards of care and, if so, (2) whether the failure of Drs. Sheffery and Wilson to comply with required standards of care proximately caused Yen Snead’s injuries.

The plaintiffs bear the burden of presenting evidence “which establishes the applicable standard of care, demonstrates that this standard has been violated, and develops a causal relationship between the violation and the harm complained of.” Kosberg v. Washington Hospital Center, Inc., 394 F.2d 947, 949 (D.C.Cir.1968), quoted in Haven v. Randolph, 494 F.2d 1069, 1070 (D.C.Cir.1974). The standard of care by which the defendant’s conduct is measured in ordinary negligence cases is that which is reasonable under the circumstances, Washington Hospital Center v. Butler, 384 F.2d 331, 335 (D.C.Cir.1967). It is also applicable in the law of professional negligence, requiring those with special training and experience to conform to conduct commensurate with such qualifications.

In medical malpractice, which transfers ordinary negligence elements to medical diagnosis and treatment, the duty of care is that degree of reasonable care and skill expected of members of the medical profession under the same or similar circumstances.

Medical standards are largely nationalized through national board certification. The federal courts of the District of Columbia have, for some time, applied the national standard of care to board certified specialists. See Robbins v. Footer, 553 F.2d 123 (D.C.Cir.1977). Kecently the District of Columbia Court of Appeals replaced the “locality rule”, holding that as to board certified physicians and hospitals, inter alia, the standard of care is to be measured by the national standard. Morrison v. MacNamara, 407 A.2d 555, 565 (D.C. App.1979).

Nationally-certified specialists in gynecology, like Drs. Sheffery and Wilson, are required to have and to exercise that degree of care, skill and learning ordinarily possessed and used by a nationally-certified specialist in gynecology acting in the same or similar circumstances. See Morrison v. MacNamara, supra; Robbins v. Footer, supra.

A plaintiff asserting medical malpractice must “affirmatively prove the relevant recognized standard of medical care exercised by other physicians and that the defendant departed from that standard when treating the plaintiff.” Robbins v. Footer, 553 F.2d at 126, citing Price v. Neyland, 320 F.2d 674, 677 (D.C.Cir.1963).

Due to the technical complexity of the case (as in many malpractice actions), the general rule is that expert testimony is required to support a claim that defendant’s conduct did not meet the applicable standard of care. Robbins v. Footer, 553 F.2d at 126-127. Although a physician need not be a specialist in the field of which he speaks in order to testify, Baerman v. Reisinger, 363 F.2d 309 (D.C.Cir.1966), and specialization goes to the weight rather than to the admissibility, in order to give an opinion on whether the defendant complied with the applicable standard of care, the witness must be familiar with that standard. The qualifications of the witness are weighed by the court and a determination made as to whether he is qualified to express an opinion on the subject. Sher v. DeHaven, 199 F.2d 777, 782 (D.C.Cir.1952), cert. denied, 345 U.S. 936, 73 S.Ct. 797, 97 L.Ed. 1363 (1953).

As mentioned before, the particulars of Dr. Sheffery’s July 2, 1979 examination of Yen Snead are in dispute. For example, Yen Snead testified that Dr. Sheffery did not perform a bimanual or speculum pelvic examination, but only palpated her abdomen to feel for lumps or tumors. Although he had no clear memory of the details of that examination of Mrs. Snead, Dr. Sheffery claims that he routinely includes bimanual and speculum pelvic examinations as part of an overall gynecological examination, and reasons that without having done so, he could not have concluded and recorded that Mrs. Snead’s uterus was fibrotic. Furthermore, Mrs. Snead recalls that Dr. Sheffery examined her breasts, but Dr. Sheffery has testified that breast examinations are conducted by other physicians at the Clinic, but not by him. These matters need not, however, be resolved since this cause can be determined through focus on the legal consequences of the undisputed facts that (1) Dr. Sheffery’s examination of Mrs. Snead did not include a pap smear, (2) Dr. Sheffery instituted, and Dr. Wilson continued, Provera treatment to relieve Yen Snead’s condition of heavy and frequent menses, and (3) neither Dr. Sheffery nor Dr. Wilson advised Mrs. Snead to seek follow-up care after the Provera treatment regardless of the apparent effect of that drug.

At trial, plaintiffs presented the highly persuasive testimony of Herbert A. Goldfarb, M.D., an expert in the field of obstetrics and gynecology with experience as an Army physician and in private practice. In response to a hypothetical question, Dr. Goldfarb testified that a gynecologist treating a patient with Yen Snead’s history and complaints would deviate from proper medical standards by proceeding with Provera treatment instead of performing diagnostic tests (including a Pap smear) to detect cytological causes of Mrs. Snead’s menstrual problems. According to Dr. Goldfarb, prolonged and heavy menstrual bleeding is a “prime sign” of some abnormality occurring in the gynecological tract, and use of the drug Provera, which may well mask the presence of gynecological cytology, is contraindicated in cases of abnormal bleeding. Tr.Yol. 2-A pp. 8-9. Dr. Goldfarb’s testimony is supported by other evidence (the Provera package insert and pages of Physician’s Desk Reference, 33rd ed., 1979; PX-2C) and is further buttressed by the testimony of Dr. Barry Singer, another expert in the field of gynecology. Defendant’s expert witness, Dr. Robert C. Park, testified that use of Provera as a therapeutic test in Mrs. Snead’s case comported with the applicable standard of care. The totality of the record on this issue, by the preponderance of the evidence, compels the conclusion that a reasonably competent gynecologist presented with Mrs. Snead’s symptoms and menstrual history would have ruled out the possibility of bleeding caused by organic pathology before prescribing Provera.

While this conclusion could be reached without more support, nonetheless it is additionally fortified here by State Department and AID regulations, standards and guidelines governing examinations for purposes of World Wide Medical Clearance. Considered as a whole, those regulations and the implementing standards and guidelines direct that a pap smear is a required element of any World Wide Medical Clearance examination of a female AID employee or dependent age 21 or over. In light of that requirement, Dr. Sheffery’s belief that Yen Snead’s condition was treatable with Provera provides no justification for his decision to forego the required pap smear. Finally, the fact that Mrs. Snead’s last pri- or pap smear predated the July 2, 1979 examination by only eight months does not excuse Dr. Sheffery’s failure to perform the same test. Although medical literature current in 1979 advised annual pap smears as a screening procedure, the evidence presented at trial indicates that a pap smear for diagnostic purposes is indicated whenever a patient presents symptoms suggesting possible abnormal cytology of the gynecological tract. In sum, the preponderance of the evidence shows that Dr. Sheffery’s and Dr. Wilson’s failure to obtain a pap smear and their use of Provera as the sole treatment for Mrs. Snead’s abnormal bleeding in July, 1979 did-not satisfy the standard of care governing board-certified gynecologists at that time. Their breach of the duty of care was compounded by their failure to specifically direct Yen Snead to seek further treatment, regardless of apparent improvement, in light of the possibility that Provera could mask gynecological abnormalities.

Plaintiffs must next prove that the treatment Mrs. Snead received in July, 1979 was the proximate cause of her injuries. See Johnson v. United States, 547 F.2d 688, 692 (D.C.Cir.1976). In cases involving alleged medical mismanagement of a patient’s existing and potentially fatal condition, the appropriate test for causation is the “substantial factor” test. Under this test, plaintiffs must show that the defendant’s deviation from the standard of care was a “substantial factor” bringing about Mrs. Snead’s present condition. Daniels v. Hadley Memorial Hospital, 566 F.2d 749, 757 (D.C.Cir.1977). In applying the “substantial factor” test the Court “must at least take into account both the patient’s chances of survival [had she been properly treated] and the extent to which defendant has interfered with those chances [by departing from the standard of care].” Id. at 758.

The first inquiry in the causation analysis is whether in July 1979 Yen Snead had a discoverable and potentially fatal condition which Drs. Sheffery and Wilson failed to detect. Defendant, supported by the testimony of Dr. Park, argues that even had Drs. Sheffery and Wilson performed diagnostic tests to determine the cause of Yen Snead’s bleeding, they could not have prevented the cancer from which she now suffers, because it was not present at that time. Specifically, defendant argues that there is no evidence that Mrs. Snead’s specific form of cancer, poorly differentiated glassy-cell adenosquamous carcinoma, passes through a recognizable prolonged preinvasive state which could have been detected by cervical cytology in 1979.

Refuting that contention, a host of credible physicians testified, including Myron R. Melamed, M.D., the Chairman of the Pathology Department at Memorial Sloan-Kettering Cancer Center in New York, Margrit A. David-Nelson, M.D., the pathologist who examined the cervical tumor removed from Yen Snead on July 31, 1980, George Speck, M.D., the surgeon who removed that tumor, and Drs. Goldfarb and Singer. The totality of that testimony, as summarized below, establishes that the nature, size and growth rate of the malignancy removed from Yen Snead’s cervix is not consistent with the rapidly invasive growth envisioned by Dr. Park.

Dr. David-Nelson testified that her examination of representative samples of the polypoid mass surgically removed in 1980 revealed that it originated in a benign adenomatous endocervical polyp. Tr.Vol. 5, pp. 165-66. Over time, malignant cells replaced the normal tissue of that polyp, transforming it into the adenoepidermoid carcinoma removed by Dr. Speck. Tr.Vol. 5, p. 166. Dr. Speck confirmed the pathologist’s testimony as to the size of the mass he removed (approximately three centimeters or IV2 inches in diameter) and further described it as a pedunculated, movable lesion (arising from the surface of the cervix on a stalk) large enough to obscure the opening of the cervix. Tr.Vol. 5, pp. 159-161. Based on the size of the lesion, Dr. Speck testified that “it had been there for some time” before being removed. Id. at 161.

The critical question is how long Yen Snead’s polyp had been present; that is, whether it could and should have been discovered in July, 1979. Based on the growth process (staging) and doubling time (rate of growth) of adenoepidermoid tumors, Dr. Goldfarb stated, with reasonable medical certainty, that some sign or symptom of Mrs. Snead’s cancer was discoverable in July, 1979. Tr.Vol. 2-A, pp. 24-25. This testimony is consistent with that of Dr. Melamed, that invasive cervical cancer such as Mrs. Snead’s exists “in situ” at the surface epithelium for “some period of time” before progressing to invasion of the underlying connective tissue. Melamed Dep. at 16. This conclusion corroborates the testimony of Dr. Singer, who held the opinion that Yen Snead’s cervical carcinoma “certainly was present”, at least in situ, in June of 1979. Tr.Vol. 2-A at 51.

Other relevant testimony as to the growth rate of Yen Snead’s cancer supports plaintiffs’ case as well. Defendants do not contest (and in fact their own expert witness agrees) that the growth rates of Mrs. Snead’s primary and metastatic adenoepidermoid carcinoma would be roughly equivalent, and evidence indicates that the tumor cells which metastasized from Yen Snead’s cervix to her lung and mediastinum did not display rapid growth: as late as April, 1982, 20 months after removal of the primary cervical cancer, the metastatic tumors were still too small to appear on a chest x-ray. See PX-1, p. 148 and Report of E. Grant, M.D. contained in PX-1. Those facts simply do not support Dr. Park’s conclusion that Mrs. Snead’s polyp transformed from an undiscoverable benign polyp to an enlarged and invasive adenoepidermoid carcinoma in less than a single year.

Finally, Dr. Park’s reliance on literature from the American College of Obstetrics and Gynecology to the effect that cervical adenocarcinoma is not preceded by a prolonged preinvasive stage is of no assistance in this matter since Yen Snead’s form of cancer is not a adenocarcinoma but rather an adenoepidermoid or adenosquamous variety, bearing traits of squamous cell carcinoma as well. The growth process described by Drs. Melamed and Singer accounts for the nature of that tumor.

The weight of the testimony capsulized above compels the conclusion, through credible and persuasive testimony offered with reasonable medical certainty, that in July, 1979, Yen Snead’s cervical carcinoma existed in some preinvasive and discoverable stage. Given that Mrs. Snead already suffered from a potentially fatal condition in July, 1979, the issue is whether the actions and omissions of Drs. Sheffery and Wilson substantially contributed to her present condition. See Daniels v. Hadley Memorial Hospital, 566 F.2d at 757.

We look first to the likely effect of timely proper treatment. Dr. Barry Singer stated unequivocally that

a pap smear properly performed at that time [July, 1979] would have revealed the presence of abnormal cells, leading to a more complete examination of the cervix which would have included curettage or biopsy, to determine the source of the abnormal cells ____ Within reasonable medical probability, a curettage at that time would have been curative, since the tumor, by definition, would have been smaller at that time. Assuming growth of these tumors to be sequentially over time and metastases to occur after a tumor grows to a certain size, at that time the tumor would have been confined to the cervix, would not have metastasized, and should have been curable by curettage.

Tr.Vol. 2-A p. 51. Dr. Singer’s conclusion was confirmed by the testimony of Dr. Goldfarb:

[W]ith reasonable medical certainty it’s my opinion that the subsequent cancer that was found in Mrs. Snead would have been picked up at the time or its precursors would have been picked up [upon performance of a dilatation and curettage] in 1979. It would have established the nature of the cells of the uterus, it would have ruled out upper uterine pathology and if, as was described in the pathology report, the cancer was growing in a polyp and the polyp was present in the endocervix the polyp would have been removed and she would have been cured and not required a hysterectomy and her life would not have been in danger.

Id. at 22. Given that the decision to forego a pap smear, dilatation and curettage, or other means of testing Yen Snead’s cervical tissue for malignancies rested with Drs. Sheffery and Wilson, it is clear that their selected course of treatment, which deviated from the standard of care, was a substantial factor bringing about the progression of Yen Snead’s cervical cancer. Furthermore, overwhelming evidence in the record indicates that Mrs. Snead’s lung and mediastinal carcinomas are metastases from the primary cervical cancer. See e.g., Melamed Dep. at 10-15; Testimony of Oliver Alabaster, M.D., at Tr.Vol. 3 pp. 2-5. As early detection of the primary carcinoma at the preinvasive stage would have allowed its removal before the occurrence of metastasis through the blood stream, the medical decisions made by Drs. Sheffery and Wilson must be viewed as a substantial factor bringing about the development of Mrs. Snead’s lung and mediastinal cancer as well. Accordingly, defendant’s liability for plaintiff’s injuries relating to her cervical, lung and mediastinal cancer is established by a preponderance of the evidence.

Remaining for resolution by the Court is the measure of plaintiffs’ recoverable damages. The parties have stipulated that the medical expenses of Yen Snead incurred and documented as of the date of trial, in the amount of $48,647.00, will be accepted without dispute as reasonable and necessary. Stip. 49. Based on the reasoned and persuasive testimony of Dr. Oliver Alabaster as to Mrs. Snead’s life expectancy and anticipated medical needs, including the likelihood of future radiation therapy, chemotherapy and surgery, Tr. Vol. 3 at 10, the future medical expenses, including chemotherapy costs incurred but not yet billed, are estimated at $38,342.00.

In addition, plaintiffs seek recovery of the following nonmedical economic losses:

(a) Yen Snead’s lost future income (recoverable, if proven, under District of Columbia v. Barriteau, 399 A.2d 563 (D.C. App.1979));

(b) the value of Yen Snead’s lost homemaking services;

(c) losses resulting from the Sneads’ inability to live overseas, including:

1. state income taxes paid by the Sneads which would not have been assessed had they lived overseas;

2. the fair rental value of the Sneads’ home (stipulated at $600/month in 1983, Stip. 58) which they would have gained had they lived overseas with furnished housing; and

3. overseas hardship allowance (“post differential”) or economic value of retirement benefits for which Jack Snead would have been eligible had the Sneads lived overseas.

The testimony presented at trial, particularly that of plaintiff Jack Snead, establishes that each of the losses itemized above has been incurred as a direct consequence of Yen Snead’s illness, inability to perform her accustomed functions and inability to travel overseas. The non-medical economic losses have been discounted to present value at a rate of 6.5%. Plaintiffs’ economic expert totaled those losses, using four different sets of assumptions as to Yen Snead’s life expectancy and Jack Snead’s election of a post differential or retirement benefits had he been assigned overseas after 1982. See PX-18, 18A. In light of Dr. Alabaster’s testimony that, at the time of trial, the likelihood of Yen Snead’s survival beyond late 1985 was less than 50% (Tr.Vol. 3, p. 8) (that is, that it is more likely than not that she will not survive beyond the year 1985), we focus on those damages incorporating an assumption of Yen Snead’s death in 1985 rather than those (higher) figures assuming death in later years. Adding those values to the total current and projected medical expenses, the testimony overwhelmingly reflects total economic losses approximating $380,000.

Additionally, compensation is warranted for the extraordinary pain and suffering of the plaintiff, Yen Snead. No one challenges the depth of pain and suffering of this young woman who awaits, tragically, the certainty of death, if not imminent, then more likely than not, within the next year. Deprived of a viable marital relationship with his wife, Jack Snead is entitled to substantial compensation for his loss of consortium, which embraces not only the loss of the services of his wife, the loss of her active social and personal companionship, but also the impact on the expression of love, affection and sexual relations. In short, he is entitled to compensation for such loss to him.

Accordingly, judgments shall be entered herein, on the accompanying Judgment, in favor of the plaintiffs and against the defendant.

JUDGMENT

In consideration of the Memorandum Opinion of this date, the 28th day of September, 1984,

Judgment be and it hereby is entered in favor the plaintiff, Yen L. Snead, and against the defendant, United States of America, in the amount of $1,200,000.

Judgment be and it hereby is entered in favor of plaintiff, Jack R. Snead, and against defendant, United Stares of America, in the amount of $200,000.

      . AID employees and their dependents are required to undergo a biennial physical examination by and through the Department of State Office of Medical Services to gain medical clearance for overseas assignment. Stip. 8.

      . As is required under the Federal Tort Claims Act, plaintiffs sought redress of their claim through administrative processes: their claim for administrative settlement with the United States Department of State for one million dollars and two million dollars, respectively, was denied by the Department of State. Stip. 52-53.

      . Under the Federal Tort Claims Act, liability is determined "in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b) (1976). Accordingly, the liability of the United States depends on an application of District of Columbia law. See Hernandez v. United States, 636 F.2d 704, 706 n. 5 (D.C.Cir.1980).

      . Those standards are found in the following manuals:
      a. Volume 3 Foreign Affairs Manual §§ 680-688;
      b. Form FS-436, Guidelines for the Examining Physician;
      c. Medical Examination Standards for the Foreign Service;
      d. Form DS-1686, now known as Optional Form 264, Medical History and Examination for Foreign Service.
      The parties have stipulated that these regulations are authentic and were in place in 1979. Stip. 7.

      . Dr. Speck testified as a factual witness rather than as an expert.

      . The deposition of Dr. Melamed was presented at trial on videotape. While Dr. Melamed does not appear to concur with the opinion that Mrs. Snead’s tumor originated in a polyp, he assumes that its source was a lesion in the wall of the cervix. The Court accepts the testimony as to the polypoid nature of the mass presented by Drs. Speck and David-Nelson. To the extent that Dr. Melamed disagrees with their view (and he does not expressly refute it), that difference of opinion has no bearing on his testimony as to the staging and metastasis of adenoepidermoid carcinomas. That testimony is relevant, uncontroverted, and valuable.

      . Dr. Goldfarb’s testimony indicates that the cervical lesion had reached the stage of "significant invasion” by the time that Yen Snead began to experience postcoital spotting in the spring of 1980. Tr.Vol. 2-A, pp. 24-25.


author: ROY, District Judge.

text:
    Edward HOPPER v. TIMEX CORPORATION.
    No. LR-C-84-347.
    United States District Court, E.D. Arkansas, W.D.
    Sept. 28, 1984.
    Robert K. McCalla and Howard Shapiro of McCalla, Thompson, Pyburn & Ridley, New Orleans, La., Kathlyn Graves of Wright, Lindsey & Jennings, Little Rock, Ark., for defendant.
    Philip E. Kaplan and Karen L. Arndt of Kaplan, Brewer & Miller, Little Rock, Ark., for plaintiffs.
   ORDER

ROY, District Judge.

Pending before the Court is the motion of the defendant for summary judgment dismissing class action allegations. Defendant asserts that the undisputed material facts demonstrate plaintiff has abused the judicial process and that plaintiff cannot represent a class of similarly situated employees who were allegedly separated from employment. The plaintiff has responded and defendant replied. The matter is now ripe for determination.

The Court has carefully considered the views and authorities cited by both parties and has reviewed the documents attached to the motion. It is clear that the present action is based upon the same conduct complained of in Hopper I, except as to the addition of class allegation claims. In Hopper I, the plaintiff filed a motion to dismiss without prejudice which the Court granted with certain conditions imposed:

The plaintiff has conducted little discovery although he had ample time to prepare for trial. It would be unfair to the defendant to allow the backpay damages to continue to increase (if relief is eventually granted) so the Court finds it to be equitable to provide that if a subsequent action is refiled then April 17, 1984 will be the date used to compute backpay and liquidated damages if applicable.

Defendants first point is that the plaintiff’s conduct in prosecuting Hopper I and the Court ordered sanctions compel dismissal of class claims. The idea is that the Court’s limitation of remedies establishes he is not “similarly situated” to other individuals who may assert damage claims for prospective relief postdating April 17, 1984. Although the defendant’s argument is persuasive, it is possible that prospective relief for each class member could be molded so as to fit each plaintiffs case. However, because of the following holding, the Court does not address this point at length.

The next point raised by defendant is that plaintiff’s EEOC charge limits any subsequent litigation. Plaintiff’s EEOC charge was limited to claims of an alleged individual unlawful discharge. No class pattern or practice discharge claims were alleged or suggested in plaintiff’s EEOC charge. The plaintiff did not respond to this particular point in his brief. The defendant cited various cases dealing with the failure to raise issues in the EEOC charge. The Eighth Circuit has provided guidance in this regard with respect to Title VII claims :

The Eighth Circuit Court of Appeals has ruled that a plaintiff may file a Title VII suit on those claims which are ‘like and related to the substance of (plaintiff’s) EEOC charge’. Satz v. ITT Financial Corp., 619 F.2d 738, 742, 22 FEP Cases 929 (8th Cir.1980).... The Eighth Circuit has not ruled on a case with analogous facts, nor has there been any elaboration after Satz of what constitutes ‘like or related’ claims____
The Court is mindful that a “lay complainants’ charges are to be construed broadly in a liberal manner in order to effect the ‘remedial and humanitarian underpinnings of Title VII and of the crucial role played by the private litigant in the statutory scheme.’ ”...
The Fifth Circuit Court of Appeals has adopted a test similar to the one referred to by the Eighth Circuit in Western Publishing Co. Noting the administrative and judicial framework of Title VII and its goal of encouraging voluntary compliance through conciliation, that court has held that the scope of a Title VII suit may extend as far as, but no further than, the scope of the EEOC investigation which could reasonably grow out of the administrative charge. [Citations omitted].
In this Court’s view, the tests of the Eighth and Fifth Circuits are essentially the same____
Paulino v. Miller, 568 F.Supp. 687, 32 FEP Cases 1230 (E.D.Ark.1983).

The EEOC charge in the present case appears to be specifically related to his treatment alone and not conclusory. As Judge Eisele stated in Pickney v. American District Telegraph Company of Arkansas, 32 FEP Cases 1232, 1235 (E.D.Ark.1983):

When an employee files a highly specific charge he thereby circumscribes the number of claims that might “relate” to it.

Id. at 1235.

It follows from this Court’s interpretation that the plaintiff’s charge could not serve as a jurisdictional basis for a subsequent class action. The defendant recognizes the split among the circuits as to who may opt into an ADEA class action. The Fifth Circuit holds each opt in plaintiff must timely file his own charge of discrimination. McCorstin v. U.S. Steel Corp., 621 F.2d 749, 755 (5th Cir.1980); Price v. Maryland Casualty Co., 561 F.2d 609, 611 (5th Cir.1977). The Ninth and Tenth Circuits have held that similarly situated plaintiffs may opt in to an ADEA class action if the named plaintiff timely complied with the ADEA notice requirements set forth in 29 U.S.C. § 626(d). Naton v. Bank of California, 649 F.2d 691, 697 (9th Cir.1981); Mistretta v. Sandia Corp., 639 F.2d 588, 593-95 (10th Cir.1980); Bean v. Crocker National Bank, 600 F.2d 754, 759-60 (9th Cir.1979). The Court could find no Eighth Circuit opinion addressing this specific question. However, the Court is of the opinion that even under the more liberal analysis of the Ninth and Tenth Circuits, the instant plaintiff’s EEOC charge is legally insufficient as a jurisdictional foundation for an alleged ADEA class action. In Bean v. Crocker National Bank, 600 F.2d 754, 20 FEP Cases 533 (9th Cir.1979) [Bean], the Department of Labor received notices from an attorney alleging age discrimination against five employees and all other persons similarly situated. Bean, 600 F.2d at 756, 28 FEP Cases at 534. The Ninth Circuit panel permitted these notices to serve as jurisdictional basis for a subsequent class action because defendant and the DOL:

... were put on notice that the discrimination charges encompassed a pattern of unlawful conduct transcending an isolated claim and that they should act accordingly. Such notice gave the Department the opportunity to informally mediate and conciliate the dispute...

Bean, 600 F.2d at 760, 20 FEP Cases at 537. Instant plaintiff’s charge of discrimination did not put defendant on notice of claims transcending his individual discharge, and nullified any opportunity to conciliate on a class basis. The Court also agrees with the defendant’s analysis and distinctions made between this case of Na-ton and Mistretta. The instant plaintiff’s charge of discrimination complains of an individual employment action, and never suggests or implies subsequent class litigation, or provided defendant with an opportunity to conciliate the class claims asserted in the complaint. Further, during a deposition taken in Hopper I, plaintiff answered affirmatively when asked whether the only issue he seeks to litigate in this case is his alleged wrongful layoff.

Based upon the foregoing, the Court grants defendants Motion for Summary Judgment and dismisses the class claims.

      . See fn. 1 in Looney v. Commercial Union Assurance Companies, 428 F.Supp. 533 (E.D.Mich. 1977) noting parallel relationship between Title VII and ADEA cases.


author: LIMBAUGH, District Judge.

text:
    C.L. CRAFT, Plaintiff, v. AUTOMOTIVE, PETROLEUM AND ALLIED INDUSTRIES EMPLOYEES UNION, LOCAL 618, et al., Defendants.
    No. 84-1410C(5).
    United States District Court, E.D. Missouri.
    Sept. 28, 1984.

      C.L. Craft, pro se.
    George O. Suggs, St. Louis, Mo., John O. Harris, Chesterfield, Mo., for defendants.
   MEMORANDUM

LIMBAUGH, District Judge.

This case is before the Court on the motions of the defendants for summary judgment. The defendants argue that the plaintiff’s claim is barred by the statute of limitations.

The plaintiff’s cause of action arose out of a strike vote held on November 22,1983, after which the union representative told the plaintiff he had exhausted all contractual alternatives and that the union would no longer pursue plaintiff’s grievance. The facts indicate that plaintiff was discharged from his employment on or around August 12, 1981. The Collective Bargaining Agreement between plaintiff’s union and employer provided that plaintiff had five days in which to file his discharge grievance with his employer. Plaintiff’s employer refused to consider the grievance, stating that it was not timely filed following which the union brought an action in federal court on the plaintiff’s behalf. Ultimately, the Eighth Circuit Court of Appeals ordered the employer and union to submit the plaintiff’s discharge grievance to arbitration in accordance with the terms of the Collective Bargaining Agreement.

On November 14, 1983, the Automobile Dealers Association Committee considered the plaintiff’s grievance and was unable to agree upon whether it was timely filed. According to the provisions of the Collective Bargaining Agreement, Article VI, section 6, if the joint committee could not arrive at a majority decision within the allotted time, the union could go out on strike. On November 22, 1983, the union held a meeting to allow its members to decide whether or not to strike on plaintiff’s behalf. The plaintiff attended the meeting and was allowed to vote. The majority of the members voted not to strike.

Following the vote count, David L. Lindsey, a trustee and assistant business representative of the union, informed plaintiff of the strike vote results and that the union would not take any further action for plaintiff. Mr. Lindsey sent the plaintiff a letter on December 1, 1983, reiterating the union’s position regarding the plaintiff’s matter.

On June 15, 1984, plaintiff filed complaint in this Court against his former employer and the union. Plaintiff alleged that the union should not have allowed the members to decide whether or not to strike and urged other grievances. These acts are alleged to be in violation of § 301 of the Labor Management Relations Act of 1947 (LMRA). 29 U.S.C. § 185. The defendants have moved for summary judgment on the ground that the plaintiffs claim is barred by the statute of limitations.

Under Rule 56 of the Federal Rules of Civil Procedure, a movant is entitled to summary judgment if he can “show that there is no genuine issue as to any material fact and that [he] is entitled to a judgment as a matter of law.” F.R.Civ.P. 56(c). See also Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962). In passing upon a motion for summary judgment, a court is required “to view the facts in the light most favorable to the party opposing the motion.” Vette Co. v. Aetna Casualty and Surety Co., 612 F.2d 1076 (8th Cir.1980).

In DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), the Supreme Court considered the question of what period of limitations should govern in an employee’s hybrid § 301/fair representation suit against an employer and a union. The Court held in DelCostello that the six-month period of limitation provided in § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b), should govern in hybrid § 301/fair representation suits.

The defendants rely on DelCostello to support their argument that the plaintiff’s complaint is barred by the statute of limitations. Summary judgment will be granted since there is no genuine issue of material fact with respect to the statute of limitations question. The sole legal issue involved in the case concerns the time that the plaintiff’s cause of action accrued.

It is clear that a hybrid § 301/fair representation claim against both an employer and a union accrues on the date the employee’s grievance is finally rejected and his avenues of recourse through the grievance procedure outlined in the Collective Bargaining Agreement are exhausted. Butler v. Local Union 823, International Brotherhood of Teamsters, 514 F.2d 442, 449 (8th Cir.1975), cert. denied 423 U.S. 924, 96 S.Ct. 265, 46 L.Ed.2d 249 (1975); Collins v. American Freight System, Inc., 559 F.Supp. 1032, 1036 (W.D.Mo.1983); Wilcoxen v. Kroger Food Stores, 545 F.Supp. 1019, 1021 (E.D.Mo.1982). The accrual rule has remained the same since the DelCostello decision. In this case, the plaintiff’s grievance was finally rejected on November 22, 1983, when the union members voted not to strike. After the strike vote, the union representative orally informed the plaintiff that the union would no longer pursue the plaintiff’s grievance and confirmed this by letter of December 1, 1983.

Accordingly, this Court finds that the plaintiff’s claim accrued, at the very latest, on December 1, 1983. As this case was filed on June 15, 1984, more than six months after the claim accrued, plaintiff’s claims are barred by the applicable six-month period of limitations and defendants’ motion for summary judgment is granted.

Dated this 28th day of Septembér, 1984.

      . Automotive, Petroleum and Allied Industries Employees Union, Local 618, etc. v. Town and Country Ford, Inc., 543 F.Supp. 256 (E.D.Mo. 1982).

      . 709 F.2d 509 (8th Cir.1983).


author: KANNE, District Judge.

text:
    Mark J. McKECHNIE, Plaintiffs, v. Thomas M. McDERMOTT, et al., Defendants.
    No. H 84-60.
    United States District Court, N.D. Indiana, Hammond Division.
    Oct. 1, 1984.

      Robert Berger, Straley M. Thorpe, Munster, Ind., for plaintiffs.
    Charles A. Myers, Joseph M. McGovern, Hammond, Ind., for defendant Thomas M. McDermott, City of Hammond, Ind.
   ORDER DENYING PRELIMINARY INJUNCTION

KANNE, District Judge.

The plaintiff, Mark J. McKechnie, was employed by the City of Hammond, Indiana, as the “transportation coordinator.” In that position he coordinated the operation of a city bus system financed by federal grants. While serving in that capacity Mr. McKechnie vigorously supported the political campaign for re-election of Edward J. Raskosky as the mayor of the City of Hammond.

Mr. Raskosky lost the race on November 8, 1983, and Mr. McKechnie was subsequently fired by the newly elected mayor, the defendant, Thomas M. McDermott.

Mr. McKechnie asserts that his discharge as a city employee was politically motivated and that he had a constitutionally protected right in that position to use his influence in the mayoral election and actively support the re-election of Mr. Raskosky.

Mayor McDermott argues that the discharge of Mr. McKechnie from city government was not politically motivated but rather that it was budgetary in nature and necessitated by a reorganization within the city administration.

For the purpose of deciding the request for preliminary injunction the court rejects the argument of the defendants and accepts the underlying assertion of Mr. McKechnie that his discharge as a city employee was substantially motivated by political considerations as some of the evidence strongly suggests.

However, the court must examine the key premise of Mr. McKechnie which is that he had a constitutionally protected right, notwithstanding his governmental employment, to use his influence in the mayoral election and actively support the re-election of his political leader and “employer” — Mayor Raskosky.

There is no question that some of Mr. McKechnie’s political activities were protected by the First Amendment. However, reasonable inferences drawn from the evidence presented thus far leads the court to the preliminary conclusion that Mr. McKechnie improperly used his official authority and influence to support Mr. Raskowsky for re-election.

Elrod v. Burns, 427 U.S. 847, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) established the general rule that a non-policymaking, non-confidential government employee cannot be discharged from a job satisfactorily performed upon the sole ground of his political belief. The Seventh Circuit has stated the reasoning behind the Elrod rule, with its exception for policymaking or confidential employees, is that “the dismissal of public employees for reasons of political patronage violates the first amendment,” Livas v. Petka, 711 F.2d 798, 800 (7th Cir.1983), and, that a “termination based solely on an employee’s political affiliation would be a deprivation of his first amendment rights to freedom of association and freedom of belief,” McClure v. Cywinski, 686 F.2d 541, 544 (7th Cir.1982).

Nevertheless, federal laws which limit the right of nonpolicy making and nonconfidential governmental employees to engage in political activity have been upheld as constitutionally acceptable. See CSC v. Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973). In the Letter Carriers case, which reviewed the rights of federal employees under Title 5 U.S.C. § 7324, commonly known as the “Hatch Act,” the Supreme Court stated:

Neither the right to associate nor the right to participate in political activities is absolute____

Id. at 2891, 93 S.Ct. 2880. The validity of the limitation on First Amendment rights approved in Letter Carriers was later acknowledged in Elrod and distinguished as a proper legislative restraint on political activity.

Parallel Hatch Act legislation also imposes restrictions on political activities of certain state and local governmental employees. The aspect of the Hatch Act which applies to local governmental employees is set forth in Title 5 U.S.C. §§ 1501-1508. More specifically § 1502(a)(1) states:

A ... local official or employee may not—
use his official authority or influence for the purpose of ... affecting the result of an election or a nomination for office.

Section 1501(4) defines an official as:

[A]n individual employed by a state or local agency whose principal employment is in connection with an activity which is financed in whole or in part by loans or grants made by the U.S. or a Federal agency.

By his own admission, Mr. McKechnie falls within the scope of the Hatch Act. Specifically Mr. McKechnie states that he was “paid in connection with an activity which was financed in part by grants made by the U.S. or a federal agency.” (Plaintiff’s Reply Brief in Support of Application for Preliminary Injunction p. 17.) Further, testimony by Mr. McKechnie at the hearing indicated that the position of transportation coordinator involved making applications for federal and state funding to finance the Hammond transportation system for which he was responsible. Mr. McKechnie then agrees that the provisions of the Hatch Act apply to him.

However, a city employee’s active participation in a political campaign is not in itself sufficient to cause a violation of the Hatch Act even if the agency for which the employee works is federally funded. The question the court must address is whether Mr. McKechnie used his “official authority or influence” to affect the mayoral campaign in violation of § 1502(a)(1) of Title 5.

Mr. McKechnie readily admits that while he served as transportation coordinator he actively participated in the Raskosky campaign. During testimony he stated that he attended two fundraisers for Raskosky including a $250.00-a-plate dinner; that he worked at Raskosky’s headquarters one night a week; that he displayed a sign and a bumper sticker for Raskosky; that he attended several political rally bingoes; and that he wore an “Eddie” button to show support for Mr. Raskosky. Prior to the 1974 amendment, some of these activities certainly would have been violations of the Hatch Act — they are no longer.

However, other activities in which Mr. McKechnie’s official authority and influence could be used to affect the mayoral election were disclosed by the evidence.

First, as transportation coordinator Mr. McKechnie had control over advertising and promotion for the bus line. This specifically included control over advertising on city buses. In addition, Mr. McKechnie participated in commercial radio broadcasts regarding Hammond bus services. During the campaign free bus service coupons were made available. Although a policy had been adopted which did not permit paid advertising on city buses, Mayor Edward J. Raskosky’s name was displayed prominently on city buses. The city was not compensated for this “free advertisement.”

Second, Mr. McKechnie was involved in a “walking campaign” for Mayor Raskosky. The “walking campaign” consisted of a group of campaign workers walking through different neighborhoods, knocking on doors, and talking with the public to see whether or not they wished to speak with Mayor Raskosky who was usually present. Mr. McKechnie testified that the walking campaign occurred during weekdays between 10:00 A.M., and 2:00 P.M., which were ordinarily his working hours. The evidence presented at the preliminary hearing does not disclose whether or not Mr. McKechnie identified himself as the coordinator for bus service in the City of Hammond during the “walking campaign” nevertheless, this activity was conducted during the time Mr. McKechnie would have been carrying out his activities as transportation coordinator.

Third, Mr. McKechnie stated that he solicited money for the political campaign by selling tickets for Mayor Raskosky’s $50.00 per ticket fundraiser. If this solicitation of funds for the Raskosky campaign was directed to employees of a federally funded city agency there could be a violation of subsection (a)(2) of § 1502 of Title 5 which prohibits a city employee in a federally funded program from directly or indirectly coercing other such employees to contribute to any organization for political purposes. There is, however, no evidence at this point to suggest that the solicitation engaged in by Mr. McKechnie was improper.

At a minimum, based on the evidence produced at the preliminary hearing, the inference is that Mr. McKechnie’s use of his official authority and influence regarding the operation of the bus system constituted a violation of the Hatch Act.

It is well-established that a party seeking a preliminary injunction has the burden of establishing (1) a reasonable likelihood of success on the merits; (2) irreparable injury and absence of an adequate remedy at law; (3) that the threatened harm to plaintiff outweighs the harm the injunction may cause defendant; and, (4) that the granting of the injunction will not disserve the public interest. Ciechon v. City of Chicago, 634 F.2d 1055, 1057 (7th Cir.1980), Fox Valley Harvestore v. A.O. Smith Harvestore Products, Inc., 545 F.2d 1096, 1097 (7th Cir.1976). Further, the party seeking the preliminary injunction must carry the “burden of persuasion as to all the prerequisites.” Ciechon v. City of Chicago, 634 F.2d at 1057, Fox Valley Harvestore v. A.O. Smith Harvestore Products, Inc., 545 F.2d at 1097. Plaintiff has failed to meet this burden on at least one of these elements and accordingly his motion for a preliminary injunction must be denied.

In order to receive the benefit of injunctive relief, plaintiff must show that granting an injunction would not disserve the public interest. See Ciechon v. City of Chicago, 634 F.2d at 1057. Public interest would clearly be disserved where a plaintiff sought injunctive relief as a means of insulating himself from the consequences of his own wrongdoing. “A preliminary injunction is an equitable remedy which need not be granted where the parties lack clean hands.” Clairol, Inc. v. Gilette Co., 270 F.Supp. 371 (D.C.N.Y.) affd 389 F.2d 264 (Cir.1967). A plaintiff cannot seek relief against the wrong of another where he himself has engaged in the same wrong or a wrong with reference to the same matter. See generally Republic Molding Corp. v. B.W. Photo Utilities, 319 F.2d 347 (9th Cir.1963).

At this stage of the case, plaintiff McKechnie does not appear to come to equity with clean hands. Specifically, it appears likely that he violated a federal statute by engaging in prohibited political activity while employed as the Hammond transportation coordinator. Mr. McKechnie complains that Mr. McDermott interfered with his first amendment rights by firing him for campaigning for ex-mayor Raskosky. However, before Mr. McKechnie can be granted relief from this alleged wrong, he must show that he himself did not commit a wrong by engaging in the limited area of prohibited political activities. This Mr. McKechnie has not done. Where, as here, it appears that a federal statute has been violated by activities Mr. McKechnie had no right to engage in, no public interest would be served in granting plaintiff injunctive relief from the consequences of his apparent violation, to-wit: discharge. Although the determination that plaintiff’s activities constituted the use of his position to influence an election was for a federal administrative agency, it appears from the evidence that he may have used his office in an attempt to obtain the re-election of Mr. Raskosky. In light of Mr. McKechnie’s apparent wrongdoing, no public interest would be served by preliminarily reinstating him to office regardless of defendant’s motivation for firing him. Two wrongs have never made a right and neither wrongdoer is entitled to benefit at the expense of the public. As the court stated in Republic Molding Corp. v. B. W. Photo Utilities, 319 F.2d at 350, “The relative extent of each party’s wrong upon the other and upon the public should be taken into account and an equitable balance struck ... (citations omitted).” The laws of the United States apply to all its citizens equally. Each person is expected to conform to the laws and cannot claim an exemption based on someone else’s wrongdoing. But this is precisely what plaintiff McKechnie seeks to do. Mr. McKechnie cannot ask this court to overlook what appears to be his wrongful activity and allow him preliminary equitable relief which in effect would shield him from the consequences of a Hatch Act violation.

Mr. McKechnie has thus far failed to meet the burden of persuasion on an element necessary for the granting of a preliminary injunction. Mr. McKechnie cannot show that granting a preliminary injunction would not do disservice to the public where it appears that he violated a federal statute which forbids the activities he engaged in.

IT IS THEREFORE ORDERED that the motion of plaintiff, Mark J. McKechnie, for Preliminary Injunction is hereby DENIED.

      . Mayor McDermott was sworn in on January 1, 1984, and continues to serve presently. On January 1, 1984, plaintiff was informed that he was fired.

      . Mr. Raskosky approved the hiring of Mr. McKechnie in 1982 and in testimony Mr. McKechnie stated that he was campaigning for Mr. Raskosky because, "I like to support my employer."

      . A significant amendment to the Hatch Act applying to certain state and local governmental employees occurred in 1974. Specifically, subsection (a)(3) of Section 1502 was amended by substituting as the prohibited conduct that a state or local employee could not, "be a candidate for public elective office” for "take an active part in political management or in political campaigns.” To the contrary federal employees may still not "take an active part in political management or political campaigns.” 5 U.S.C. § 7324(a)(2).

      . This and later described conduct shows that Mr. McKechnie was a partisan and active political supporter of the mayor who employed him for the federally funded program — Mr. Raskosky.
      As this case discloses, federal tax money in the form of block grants is directly applied by local officials to the employment of loyal political supporters. It is ironic that Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), combined with the 1974 amendment of § 1502(a)(3) of Title 5 has fostered a "political civil service" which has been imposed on state and local governments. In this "political civil service” employees are hired with federal funds for partisan political reasons, function as political operatives and politics cannot be used as a basis for discharge.
      This is a curious use of federal funds for job security based on political activity.

      . Mr. McKechnie states that he was using "comp time" to be with Mr. Raskosky during this "walking campaign."

      . Under 5 U.S.C. § 1504, the question of whether Mr. McKechnie violated the Hatch Act by using his official authority or influence while participating in Mr. Raskosky's campaign was for the Merit System Protection Board to decide upon recommendation of the special counsel.


author: FILIPPINE, District Judge.

text:
    COMMODITY FUTURES TRADING COMMISSION, et al., Plaintiffs, v. Thomas D. MORSE, et al., Defendants.
    No. 83-0312C(2).
    United States District Court, E.D. Missouri, E.D.
    Oct. 1, 1984.
    Peter Lumaghi, St. Louis, Mo., Constantine J. Gekas, Regional Counsel, James A. McGurk, Chief Trial Atty., Dennis Robb, Sr. Trial Atty., Commodity Futures Trading Comm., Chicago, 111., Wesley Wedemeyer, Asst. U.S. Atty., St. Louis, Mo., for plaintiffs.
    Joseph F. Devereux, Jr., Thomas M. Utterback, St. Louis, Mo., for defendants.
   MEMORANDUM AND ORDER

FILIPPINE, District Judge.

This matter is before the Court on the application of Thomas Morse for the payment of attorneys’ fees out of the assets in the control of Gerhard J. Petzall, the Permanent Equity Receiver.

This Court by its Memorandum and Order dated June 14, 1984, 587 F.Supp. 391, has held that Morse violated Section 4b of the Commodity Exchange Act, 7 U.S.C. § 6b; as a result of this violation Morse’s customers suffered financial losses. The assets of Morse that are controlled by the Permanent Equity Receiver are not sufficient to restore to Morse’s customers the losses they have incurred as the result of Morse’s willful violations of the law. Thus, this Court believes that it would be unjust to further deplete the amount of money that can be returned to Morse’s customers by the payment of Morse’s attorneys’ fees out of the fund.

Accordingly,

IT IS HEREBY ORDERED that the application of Thomas Morse for payment of attorneys’ fees be and is DENIED.


author: DEVITT, District Judge.

text:
    CONCORD, INC., Plaintiff, v. DAKOTA STATE BANK, a South Dakota hanking association, Defendant.
    Civ. No. 6-84-1141.
    United States District Court, D. Minnesota, Sixth Division.
    Oct. 1, 1984.

      Ronald H. McLean, and Maureen Holman, Fargo, N.D., submitted defendant’s brief.
    William A. Schlossman, Jr., Fargo, N.D., submitted plaintiff’s brief.
   MEMORANDUM & ORDER

DEVITT, District Judge.

Defendant moves the court for an order dismissing plaintiff’s complaint for lack of personal jurisdiction or, in the alternative, a change of venue. Plaintiff opposes both motions.

Both parties submitted their arguments on briefs, without oral arguments.

The court has considered the parties’ legal memoranda, affidavits and all of the files, records and proceedings in the case. For the reasons which follow, defendant’s motion for an order dismissing plaintiff’s complaint for lack of jurisdiction is GRANTED.

Plaintiff Concord, Inc. (Concord) is a North Dakota corporation with its principal place of business in Fargo, North Dakota. Concord manufactures agricultural implements, including air seeders.

Defendant Dakota State Bank is a South Dakota banking association located in Mil-bank, South Dakota. Milbank is twelve miles from the Minnesota border.

Sometime before March 1984, Concord learned that two Minnesota farmers, Dave and Jack Zehringer, wished to purchase one of its air seeders. The nature and duration of the negotiations concerning this transaction are unclear, but in about March 1984 arrangements were made for the Zehringers to purchase a Concord air seeder. Because Concord prefers not to sell its products directly to retail purchasers, Concord made arrangements to sell the Zehringers’ air seeder to Valley International, Inc. (Valley International), a farm implement dealer in Milbank, South Dakota. Valley International was to in turn sell the air seeder to the Zehringers, paying Concord from the proceeds of the sale.

Before agreeing to go ahead with this deal though, Concord sought assurances that it would be paid by Valley International. Valley International had been having financial difficulties and in fact has since gone through liquidation. Defendant Dakota State Bank allegedly provided Concord the assurances it sought. Dakota State Bank was in part financing Valley International’s operations and was a secured creditor of Valley International. Plaintiff claims that Dakota State Bank assured it that it would be paid by Valley International as soon as the air seeder was delivered to the Zehringers.

The air seeder was delivered. Concord was not paid. Concord has sued Dakota State Bank on three theories, promissory estoppel, fraud and restitution/implied contract. Neither the Zehringers nor Valley International are parties to this lawsuit.

Concord filed its lawsuit in Minnesota District Court for the Seventh Division, Clay County. Dakota State Bank removed the case to this court and now moves to dismiss plaintiff’s complaint for lack of personal jurisdiction or, in the alternative, for an order changing venue.

As a preliminary matter, the court notes that defendant did not waive its objections to jurisdiction by removing the case to this court. Cunningham v. Bethlehem Steel Co., 231 F.Supp. 934 (S.D.N.Y. 1964).

The court further notes that removal jurisdiction is

a derivative jurisdiction. Where the state court lacks jurisdiction of the subject matter or of the parties, the federal court acquires none, although in a like suit originally brought in a federal court it would have had jurisdiction.

Leach v. Federal Crop Insurance Corp., 741 F.2d 200 at 201 (8th Cir.1984) (per curiam), citing Minnesota v. United States, 305 U.S. 382, 389, 59 S.Ct. 292, 295, 83 L.Ed. 235 (1939). Therefore, the threshold question for this court is whether the state court properly had jurisdiction before removal. The court finds that it did not.

Jurisdiction of Minnesota state courts over a foreign defendant is governed by Minnesota’s long arm statute, Minn.Stat. § 543.19. This statute “provides any court in the state with personal jurisdiction over a foreign corporation which, among other things, transacts any business within the state, as long as the cause of action ‘arises from’ the corporation’s enumerated contact with the state.” Medtronic, Inc. v. Mine Safety Appliances Co., 468 F.Supp. 1132, 1143 (D.Minn.1979). This statute has been construed to extend jurisdiction to the maximum limits consistent with constitutional limitations. Wendt v. County of Osceola, Iowa, 289 N.W.2d 67, 69 (Minn.1979).

The proper constitutional test to use in determining whether a forum state may exercise personal jurisdiction over a foreign corporation is the “minimum contacts” test enunciated in International Shoe v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Under that test, due process requirements are satisfied when in personam jurisdiction is asserted over a nonresident corporate defendant that has “certain minimum contacts with [the forum] such that maintenance of the suit does not offend ‘traditional notices of fair play and substantial justice.’ ” Id. at 316, 66 S.Ct. at 158, quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940).

The application of the minimum contacts test varies, however, depending upon whether or not the claim asserted is related to or arises out of a defendant’s contact with the forum state. When a controversy is related to or arises out of a defendant’s contact with the forum, the court must consider whether the “relationship among the defendant, the forum, and the litigation” makes it fair to compel a defendant to defend a lawsuit in the forum. When a claim does not arise out of or relate to the foreign corporation’s activities in the forum state, a different standard is applied. In that instance, the court must first find “continuous and systematic general business contacts” before it may constitutionally assert jurisdiction. See, generally, Helicópteros Nacionales de Colombia, S.A. v. Hall, — U.S.-, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984).

As noted, when a claim arises out of or is related to a defendant’s contacts with the forum, the court must consider the “relationship among the defendant, the forum and the litigation” to determine whether assertion of jurisdiction would be proper. This analysis must focus on the defendant’s contact with the forum state, not on the defendant’s contacts with residents of the forum. West American Insurance Company v. Westin, Inc., 337 N.W.2d 676, 679 (Minn.1983) citing Hanson v. Denckla, 357 U.S. 235, 250-55, 78 S.Ct. 1228, 1237-40, 2 L.Ed.2d 1283, 1294-99 (1958); Aaron Ferer and Sons, Co. v. Atlas Scrap Iron, 558 F.2d 450, 455 n. 6 (8th Cir.1977). The Supreme Court of Minnesota approaches this analysis by applying what it calls the “purposeful availment standard.” West American Insurance Co., 337 N.W.2d at 680. The Supreme Court of Minnesota adopted this standard from the Supreme Court of the United States’ holding in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). “Purposeful availment” is present when a defendant “invoke[s] both the benefits and the protections of the forum state’s law.” West American Insurance Co., 337 N.W.2d at 680. In making the constitutional determination of whether such purposeful availment is present, the court applies the five-factor test set out in Aftanase v. Economy Baler Co., 343 F.2d 187 (8th Cir.1965). Dent-Air, Inc. v. Beech Mountain Air Service, 332 N.W.2d 904, 907 (Minn.1983) citing Vikse v. Flaby, 316 N.W.2d 276, 282 (Minn.1982).

Due to its proximity to the Minnesota border, Dakota State Bank has a variety of contacts with the state. Approximately 1% of its outstanding loans are to Minnesota residents. Plaintiffs Memorandum at page 2. Approximately 3% of its depositors are Minnesota residents who account for roughly 3% of the bank's total deposits. Id. The bank holds various security interests and mortgages on property located in Minnesota. Id. The bank advertises on the Ortonville, Minnesota, radio station KDIO. Id. Plaintiff’s claim does not arise out of or relate to these contacts that defendant has with the state of Minnesota.

Plaintiff’s complaint does not allege any claims relating to defendant’s banking relations with Minnesota residents, nor to the foreclosure of any mortgages or security interests on property located in Minnesota. Plaintiff’s complaint does not allege any claims relating to defendant’s advertising contracts or practices. No Minnesota residents are parties to this action.

Plaintiff’s claim is based on a purported agreement between itself and defendant which only incidentally involved Minnesota residents. The court finds that this is an insufficient nexus upon which to base jurisdiction. See, generally, Toro Company v. Balias Liquidating Co., 572 F.2d 1267 (8th Cir.1978).

Plaintiff asserts that its claim “lies in the wake of” defendant’s commercial activities in Minnesota, and that there is therefore a sufficient connection upon which to base jurisdiction. See, Medtronic, Inc. v. Mine Safety Appliances Co., supra, at 1144-45. The court disagrees. The court fails to see how guaranteeing the payment of a North Dakota company which made an isolated sale in Minnesota “lies in the wake” of any of defendant’s limited contacts with the state.

Finding that plaintiff’s claim does not relate to or arise out of defendant’s contacts with Minnesota, the court must complete its analysis by determining whether defendant has established “continuous and systematic general business contacts” with the state, such that jurisdiction could be asserted in any event. The court finds that it has not.

Defendant’s contacts with Minnesota, although they apparently occur on a regular and on-going basis, fall short of those instances in which courts have found “continuous and systematic business contacts” for purposes of jurisdiction. See, e.g., Helicopteros Nacionales de Colombia, S.A. v. Hall, supra; Perkins v. Benguet Consolidated Mining Company, 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485 (1952).

What constitutes sufficient “continuous and systematic general business contacts” warranting the assertion of jurisdiction is illustrated by the two above-cited cases. The defendant in Helicópteros transacted extensive business in the state of Texas, having purchased more than 80% of its aircraft fleet there, at a cost of more than $4,000,000, and also sent propective pilots to Texas for flight training. Nevertheless, the United States Supreme Court held that the Texas courts lacked jurisdiction to hear a tort action against defendant where the action did not arise out of defendant’s activities within the state and, notwithstanding the extensive business defendant transacted in Texas, there was no “continuous and systematic business contact.” In Perkins a foreign corporation was subject to Ohio state court’s jurisdiction in an action wholly unrelated to its activities in the state. The court emphasized the fact that the president of the defendant corporation, a Philippine mining company, virtually ran the company from an office in Ohio during the Japanese occupation of the Philippine Islands.

Defendant’s contacts with Minnesota do not constitute “continuous and systematic general business contacts” with the state and, therefore, cannot be a basis upon which this court may assert jurisdiction.

Defendant’s motion for an order dismissing plaintiff’s complaint for lack of personal jurisdiction is granted. The court being without jurisdiction in this matter, it is without authority to order a change of venue.

Upon the foregoing,

IT IS ORDERED:

That defendant’s motion for an order dismissing plaintiff’s complaint for lack of personal jurisdiction is GRANTED:

Let judgment be entered accordingly.