source: Caselaw Access Project

author: SWEET, District Judge.

license: Public Domain

text:
    BANCO METROPOLITANO, S.A., Plaintiff, v. DESARROLLO DE AUTOPISTAS Y CARRETERAS DE GUATEMALA, SOCIEDAD ANONIMA, Through JUNTA INTERVENTORA OF DAG; and Banco De Guatemala, Defendants.
    No. 85 Civ. 1977 (RWS).
    United States District Court, S.D. New York.
    July 8, 1985.
    Shea & Gould, New York City, for plaintiff; Richard F. Czaja, Susan B. Ratner, George G. Nelson, New York City, of counsel.
    Sage, Gray, Todd & Sims, New York City, for defendants Junta Interventora; Jerry J. Strochlic, John A. Forlines, III, New York City, of counsel.
   OPINION

SWEET, District Judge.

Defendants Desarrollo de Autopistas y Carreteras de Guatemala, Sociedad Anonima (“DAG”) through Junta Interventora of DAG (“Intervention Commission”) and Banco de Guatemala (“Banco de Guatemala”) have moved under Fed.R.Civ.P. 12 to dismiss the complaint of plaintiff Banco Metropolitano, S.A. (“Banco Metropolitano”) for lack of in personam jurisdiction and on the grounds of forum non conveniens. Banco Metropolitano seeks to recover on two promissory notes issued by DAG and guaranteed by Banco Guatemala. The defendants’ motion to dismiss on the basis of forum non conveniens is granted for the reasons set forth below.

This action was initiated by Banco Metropolitano, a Guatemalan bank, in the Supreme Court of the State of New York, seeking recovery on the promissory notes in the respective amounts of $850,000 and $1,000,000 issued formally on February 19, 1981 by DAG to Estorial Associated, Inc. and Devco Development Co., Inc., respectively, in New York, payable February 19, 1982. Both notes were guaranteed by Ban-co de Guatemala, the central bank and monetary authority of the Republic of Guatemala. Banco Metropolitano alleges that it is the present holder of the notes, assigned for good and valuable consideration and that on the due date it became entitled to the amount with interest as provided in the notes at 18% from the due date.

The notes state, as translated:

Desarrollo de Autopistas y Carreteras de Guatemala, Sociedad Anonima, the Government of the Republic of Guatemala and Banco de Guatemala expressly waive any presentation, protest, notice of nonpayment or notice of refusal to pay this Promissory Note. They also waive any right of immunity from suit; and Desarrollo de Autopistas y Carreteras, Sociedad Anonima and Banco de Guatemala waive any right to be tried by their own courts and subject themselves to the jurisdiction of the Courts of the State of New York, United States of America.

On April 26, 1982 the Republic of Guatemala by Decree 23-82 revoked the concession agreement under which DAG was operating, finding it to be “detrimental to the Nation’s sovereignty and the country’s best interests ...” and finding that “appropriate steps must also be taken in order to prevent deterioration of the balance of payments, preserve public finances and protect the country’s economy in general.” The Republic also placed DAG under the control of an Intervention Commission, and on March 14, 1983 the Intervention Commission was authorized to take steps to recover all DAG assets, including all sums unspent. The following year a Claims Procedure was established for DAG creditors.

On February 7, 1983 Banco Metropolitano was advised that certain notes issued by DAG had been “immobilized.” The Bank challenged this procedure as to three DAG notes, and its effort to nullify the “immobilization” was denied. The denial was upheld on appeal, and the Bank was fined for seeking to enjoin the “immobilization.” These events followed the disclosure of the allegedly fraudulent activities of DAG which produced obligations of $50 million dollars but no highways and resulted in the August 1983 conviction of its former president.

On February 18, 1985 the General Manager of the Banco Metropolitano accompanied by its president and another person delivered a copy of the summons and complaint to a member of the Intervention Commission and to the Manager of the Banco Guatemala. The summons and complaint were in English, and it has been stated without contradiction that February 18, 1985 was one day before the expiration of the relevant statute of limitations under Guatemalan law. However, no proof has been adduced on the applicability or term of the Guatemalan statute of limitations and for the purposes of the pending motion it remains an unresolved issue, though the allegation is certainly relevant.

According to Banco Metropolitano, the summons and complaint were accepted at the Banco de Guatemala. The Banco de Guatemala’s Legal Counsellor advised the Banco Metropolitano officers that under an agreement between the governments of Guatemala and the United States notice of process had to be served on the Consulate of the Republic of Guatemala in New York. This was done the following day. The Legal Counsellor has denied rendering this advice. No further service was undertaken, nor has any authority been cited under which the consulate in New York can accept service for Banco de Guatemala.

The affidavits and memoranda submitted in support and in opposition have resolved at least two issues: the role of the Intervention Commission in this litigation and the status of DAG and Banco de Guatemala. DAG was named “through” the Intervention Commission and the Banco Metropolitano does not now maintain that the Commission itself is a party. There is also no contest concerning the status of Banco de Guatemala and the Intervention Commission as “foreign states” as defined by the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. § 1602 et seq. (“FSIA”). What is at issue initially is the adequacy under the FSIA of the service described above and, in the event that the service was not adequate, the ability of Banco Metropolitano to cure the inadequacy, nunc pro tunc. The resolution of those issues as set forth below also require consideration of the forum non conveniens contentions of the defendants.

Service of process on an agency or instrumentality of a foreign state, such as the Banco de Guatemala, must be made pursuant to § 1608(b) of the FSIA which provides:

(b) Service in the courts of the United States and of the States shall be made upon an agency or instrumentality of a foreign state:
(1) by delivery of a copy of the summons and complaint in accordance with any special arrangement for service between the plaintiff and the agency or instrumentality; or
(2) if no special arrangement exists, by delivery of a copy of the summons and complaint either to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process in the United States; or in accordance with an applicable international convention on service of judicial documents; or
(3) if service cannot be made under paragraphs (1) or (2), and if reasonably calculated to give actual notice, by delivery of a copy of the summons and complaint, together with a translation of each into the official language of the foreign state—
(A) as directed by an authority of the foreign state or political subdivision in response to a letter rogatory or request, or
(B) by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the agency or instrumentality to be served, or
(C) as directed by order of the court consistent with the law of the place where service is to be made.

Except as noted below, “no special arrangement” between the plaintiff and the agency exists, and it is Banco de Guatemala’s view that subsection (2) providing for delivery of the summons and complaint is limited to such delivery “in the United States,” the modifying phrase being construed to apply to the “by delivery” language, not simply the authorized agent language. Simple grammatical construction, presumably aided by punctuation and the plain language would appear to defeat Ban-co de Guatemala’s contention, and there are no decisions construing the language. The position is redeemed, however, by the legislative history and the construction of the entire section.

The only legislative history cited is the House Report related to the proposed FSIA, stating as follows:

If no such [special] arrangement [for service of process] exists, then service must be made under subsection (b)(2) which provides for service upon officers, or managing, general or appointed agents in the United States of the agency or instrumentality____
If there is no special arrangement and if the agency or instrumentality has no representative in the United States, service may be made under one of the three methods provided in subsection (b)(3).

1976 U.S.Code Cong. & Ad.News 6604, 6624.

This Report clearly implies that subsection 2 is to relate to delivery within the United States. Banco Metropolitano seeks to blunt the effect of the Report by pointing out the plain language of FSIA.

However, the logic and structure of the subsections compels the conclusion that subsection (b)(2) applies to delivery in the United States where it is presumed that officers of the foreign state will have familiarity with English, or at least access to such familiarity, while § (b)(3) applies to service in the country of the foreign state to be served. While the provisions are not explicitly alternative, the structure and logic of FSIA, together with the legislative history, support Banco de Guatemala’s position. The service under (b)(2) was therefore invalid.

Banco Metropolitano suggests, however, that service on the consulate be viewed as service under § (b)(3)(A), “as directed ... in response to a letter rogatory or request,” and Banco Metropolitano seeks to be permitted to correct the technical defects of this method of service, nunc pro tunc.

Although it could well be argued that the formalities contemplated by § (b)(3)(A) were not accomplished, because of the absence of a translation, a request pursuant to § (b)(3)(A) was made by the appearance of the Banco Metropolitano personnel on February 18, and the instruction there given by the Legal Advisor of the Banco de Guatemala to serve the consulate in New York. This constituted service “as directed by an authority or foreign state.” However, the fact of the instruction is now at issue, with affidavits of two of the actors at odds as to whether the instruction was ever given. Although the burden of establishing jurisdiction over a defendant, by a preponderance of the evidence, is on the plaintiff, until an evidentiary hearing is held the plaintiff need make only a prima facie showing that jurisdiction exists. Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55 (2d Cir.1985). In the absence of an evidentiary hearing, all doubts must be resolved in favor of the plaintiff. Id. Consequently, Banco Metropolitano’s affidavits will be taken as true, and service “as directed” is found to have occurred.

A nunc pro tunc cure of the failure to serve a translation would materially affect the substantive rights of the Banco de Guatemala in the event that the Guatemalan statute of limitations was held to be applicable. However, direct authority has been cited by Banco Metropolitano permitting a nunc pro tunc cure of service under the FSIA. In view of service on the consulate in New York, and in view of the receipt of actual knowledge of the summons and complaint in Guatemala, albeit not in a Spanish version, and without mailing by the clerk of the court, substantial compliance has been achieved, as it was in International Schools Service v. Government of Iran, 505 F.Supp. 178 (D.N.J.1981); Harris v. National Iranian Radio & Television, 691 F.2d 1344 (11th Cir.1982), and New England Merchants Nat. Bank v. Iran Power Generation and Transmission Co., 495 F.Supp. 73 (S.D.N.Y. 1980). Obviously, the facts here present none of the political justifications and difficulties of the sort encountered in the Iranian situation. Nonetheless, under the facts here presented, strict enforcement of the unconstrued provision of the FSIA would be inappropriate. The service can be found to have been accomplished nunc pro tunc to provide this court with jurisdiction. Given the nature of the issues presented and the problems intended to be addressed by the FSIA, strict enforcement of its technicalities here would be inappropriate.

However, Banco de Guatemala’s motion to dismiss on forum non conveniens ground is granted, despite the express submission to jurisdiction in New York as construed in the DAG notes The consent to jurisdiction in the notes differs from the choice of forum presented in The Bremen v. Zapata, 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972), and our Court of Appeals has recently sanctioned consideration of forum non issues where there has been a consent to jurisdiction. Proyecfin de Venezuela v. Banco Industrial, 760 F.2d 390 (2d Cir.1985). While finding that jurisdiction could be exercised where a contract waived jurisdictional objections, the court in Proyecfin also specifically noted that the principles of forum non could be raised on remand.

The notes themselves in form and terms provide the only connection to New York. There are no witnesses or documents or any evidence stated to be in New York. The parties are all Guatemalan entities, and there has already been litigation on the subject of these and similar notes in Guatemala. None of the events underlying the intervention of the government or the alleged fraud requiring the intervention have any connection with New York. The practical problems involved in this trial, the availability of compulsory process for mandating attendance of the unwilling, and the relative ease of access to proof all militate towards granting the motion to dismiss on grounds of forum non conveniens. See Gulf Oil v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947); Calavo Growers v. Belgium, 632 F.2d 963 (2d Cir.1980), cert. denied, 449 U.S. 1084, 101 S.Ct. 871, 66 L.Ed.2d 809 (1981).

Banco Metropolitano seeks to avoid the courts of its residence chiefly on the claim that no relief can be obtained there, citing the rulings related to “immobilization” of the notes. To this court’s untrained eye, these rulings do not appear to be dispositive of whatever claim Banco Metropolitano may have in Guatemala under Guatemalan law against the guarantor of the notes. While recovery may be difficult, the facts presented thus far have failed to demonstrate that ultimate recovery has been precluded. Indeed, if such were the case, it is probable that this action would also ultimately be barred under commonly applied rules of comity and res judicata. Murphy v. Gallagher, et al., 761 F.2d 878 (2d Cir., 1985); Kenner Products v. Societe Fonciere et Financiere, 532 F.Supp. 478 (S.D.N. Y.1982).

Consent to jurisdiction in New York does not preclude the application of a forum non conveniens defense, and here, despite the form of the notes at issue, all the relevant factors point to a Guatemalan resolution of the disputes between two of their banks.

Conclusion

The motion of the Banco de Guatemala and DAG to dismiss on grounds of forum non conveniens will be granted. The clerk is directed to enter judgment dismissing the complaint with costs.

IT IS SO ORDERED.


author: ANN ALDRICH, District Judge.

text:
    Kristy FANN, Plaintiff, v. The CITY OF CLEVELAND, OHIO, et al., Defendants.
    Civ. A. No. C83-4306.
    United States District Court, N.D. Ohio, E.D.
    July 8, 1985.

      Carl J. Character, Cleveland, Ohio, for plaintiff.

      Nick Tomino, Janet R. Beck, Kathleen A. Martin, Barbara Marsburger, Asst. Directors of Law, Cleveland, Ohio, for defendants.
   MEMORANDUM AND ORDER

ANN ALDRICH, District Judge.

Kristy Fann seeks damages under the Civil Rights Act of 1871, 42 U.S.C. § 1983, for alleged violations of her constitutional rights during a strip search that occurred following her arrest by Cleveland police officers on August 13, 1983. Pending before the Court are cross-motions for summary judgment and myriad ancillary motions. For the reasons set forth below, the strip search of Fann was unconstitutional and she is entitled to partial summary judgment on the issue of liability with respect to certain defendants. Other defendants are entitled to summary judgment themselves under the doctrine of qualified immunity.

Jurisdiction rests on 28 U.S.C. § 1331 and 1343.

I.

Fann’s complaint, filed on October 25, 1983, alleges that following her arrest she was strip searched “without reason or cause to believe that weapons and/or contraband were being concealed on or about her body; while bond was being posted for her, and in violation of her constitutional rights.” Complaint ¶ 1. She contends that she “was greatly embarrassed and humiliated, and suffered great emotional pain and distress,” id. 118, because of a search which “deprived Plaintiff of the following rights, privileges and immunities preserved to her by the Constitution of the United States:

a. The right of plaintiff to be secure in her person against unreasonable search and seizure under the Fourth and Fourteenth Amendments of the United States Constitution;
b. The right of plaintiff to privacy in her person against unreasonable intrusion under the Fourth, Fifth, Ninth and Fourteenth Amendments of the United States Constitution;
c. The right of plaintiff not to be deprived of life, liberty or property without due process of law and the right to the equal protection of the law secured by the Fourteenth Amendment of the Constitution of the United States;
d. The right of plaintiff not to be subjected to cruel and unusual punishment under the Eighth and Fourteenth Amendments of the Constitution of the United States.”

Id. at 1113.

The defendants are the City of Cleveland (“the City”); Mayor George Voinovich; Safety Director Reginald Turner; Chief of Police William T. Hanton; two police officers, David Hoke and Sharon Dickerson; and unnamed police officers and an unnamed jail matron. In a proposed amendment to her complaint, Fann seeks to substitute as “named defendants” both “Unknown Jail Matorn [sic] Mary Pritchett” and “Unknown Policeman Andrew Lang.” Each defendant (except the City) is sued both individually and in his or her official capacity.

Fann demands compensatory and punitive damages and attorney’s fees.

II.

Fed.R.Civ.P. 56(c) governs summary judgment motions and provides:

... The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law____

The nature of materials properly presented in a summary judgment pleading is set forth in Fed.R.Civ.P. 56(e):

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein____ The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. 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.

In reviewing summary judgment motions, this Court must view the evidence in the light most favorable to the non-moving party to determine whether a genuine issue of material fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 398 S.Ct. 144, 26 L.Ed.2d 142 (1970); Hasan v. CleveTrust Realty Investors, Inc., 729 F.2d 372 (6th Cir.1984). “[T]he party seeking summary judgment must conclusively show that there exists no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.” Bender v. Southland Corp., 749 F.2d 1205, 1210 (6th Cir.1984) (citing Smith v. Hudson, 600 F.2d 60, 63 (6th Cir.), cert. dismissed, 444 U.S. 986, 100 S.Ct. 495, 62 L.Ed.2d 415 (1979)) (emphasis in original).

III.

The following factual summary is based on the materials appended to the cross-motions for summary judgment and the defendants’ opposition to Fann’s motion: affidavits by Hanton, Hoke, Dickerson, and Pritchett, and Hanton’s answers to interrogatories. The defendants have moved to strike that portion of Fann’s motion designated “Statement of Fact” because it contains numerous unsworn allegations unsupported by the record. That motion is well-taken and is granted pursuant to Fed.R.Civ.P. 12(f), and this Court will examine only those facts found in the attached materials, rather than in Fann’s motion itself.

On August 13, 1983, Officers Hoke and Dickerson stopped Fann’s automobile and arrested her for allegedly disobeying a traffic signal and operating a vehicle without license plates. The arrest took place in the Third District, which has no detention facilities for holding prisoners, so the officers took Fann to the Central Prison Unit at 1300 Ontario Street in Cleveland for booking. After Fann was booked, Hoke escorted her from the booking officer, Lang, to the custody of a jail matron, Pritchett. According to defendants’ answers to interrogatories, Fann

... was taken by Matron Pritchett to the corridor behind the female cell block and searched. Matron Pritchett offered the plaintiff the opportunity to make a telephone call. The matron took the plaintiff into the office to make out her prisoner record card. Plaintiff was placed in Cell No. 8. This conduct was taken pursuant to the standard arrest, booking procedures and matrons’ duties in effect at the time under the authority of the Chief of Police.

The answers to interrogatories and Han-ton’s affidavit describe the search policy itself in greater detail. The latter states in part:

4. The booking procedures require every prisoner to be thoroughly searched during admission. All money, valuables and articles which might be used by prisoners to injure themselves and others or which can be used to damage the prison were to be confiscated and receipts given.
5. Jail matrons had the duty of conducting a thorough search of every female prisoner placed in their custody pursuant to booking.
6. The policy in effect on August 13, 1983, for jail matrons’ conduct of searches was as follows: Searches were to be conducted in the matrons’ lavatory or the corridor behind the female cell block, two private areas. No male officers were allowed in the matrons’ office or corridor area while a search was being conducted. Prisoners were required to pull up their brassiere and shake it, so as to permit any article secreted therein to fall out. Prisoners were required to lower any pants, pantyhose they were wearing, turn, and squat, thus causing any articles being concealed to fall to the floor. Pockets in clothing were to be turned out. Shoes and socks were to be shaken out. Purses and their contents were inspected, as well as any other belongings.
7. On August 13, 1983, I did not believe that the search policy described above caused violation of prisoners’ constitutional rights.
In her affidavit, Pritchett states in part:
3. I searched Fann according to the procedures in effect on August 13, 1983.
4. In order to conduct that search, I took Fann to the corridor behind the women’s cell block. No one was present in that area other than Fann and myself.
5. With Fann facing me, I asked her to hold her blouse up and to hold out her brassiere if she had one on. After she had done that, I asked her to lower her pants or shorts to the knees, and squat low.
6. After Fann had done that, I took her back to the matrons’ office to finish her admitting processing. Then I placed her in Cell No. 8.
7. I did not visually inspect this female’s vaginal or anal areas at any time. I did not touch her during this search.

IV.

This Court begins by examining the constitutionality of the strip-search policy utilized by the City at the time of Fann’s arrest. If that policy is deemed to be invalid, various defendants assertions of immunity, and other objections to Fann’s claims and pleadings, will then be examined.

Title 42 U.S.C. § 1983 provides

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

To recover under § 1983, Fann must demonstrate that the undisputed facts prove that the strip search deprived her of a constitutionally protected right, that one or more of the defendants are legally responsible for that deprivation, and that such deprivation was the proximate cause of her injury. While federal courts traditionally have been reluctant to interfere with the operation of state prisons, they must hear and decide constitutional challenges to prison procedures and conditions. Procunier v. Martinez, 416 U.S. 396, 404-05, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974); Kendrick v. Bland, 740 F.2d 432 (6th Cir.1984). Constitutional challenges to strip searches have been addressed most frequently and appropriately under the Fourth and Fourteenth Amendment ban against unreasonable searches and seizures. That aspect of Fann’s summary judgment motion is therefore addressed first.

The Fourth Amendment provides that: The right of the people to be secure in their persons ... against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment prohibits only unreasonable searches. Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). To determine reasonableness, courts balance the legitimate governmental interests promoted by the search against the intrusiveness of the search on the individual. Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A frequently-quoted definition of reasonableness appears in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979):

The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.

Id. at 559, 99 S.Ct. at 1884. Determining the severity of “the invasion of personal rights” involves two judgments: “first that a person have exhibited an actual (subjective) expectation of privacy, and second, that the expectation be one that society is prepared to recognize as ‘reasonable.’ ” Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring); Security and Law Enforcement Employees, District Council 82 v. Carey, 737 F.2d 187, 201 (2d Cir.1984).

Warrantless searches incident to arrest have been permitted to allow police to seize weapons which would enable arrestees to resist arrest or escape, and to prevent concealment or destruction of evidence. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 reh’g denied, 396 U.S. 869, 90 S.Ct. 36, 24 L.Ed.2d 124 (1969). In United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), the Court adopted a presumption that a “full search” incident to custodial arrest and aimed toward the discovery of weapons and contraband would be reasonable under the Fourth Amendment, but warned that “extreme or patently abusive” searches might not be. 414 U.S. at 227-36, 94 S.Ct. at 473-77. United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974), authorized warrantless searches of the clothing of arrestees who were confined overnight. As in Robinson, the court in Edwards reaffirmed that custodial searches incident to arrest must be reasonable. Neither Robinson nor Edwards specifically addressed “the circumstances in which a strip search of an arrestee may or may not be appropriate.” Illinois v. Lafayette, 462 U.S. at 646 n. 2, 103 S.Ct. at 2609 n. 2.

In 1979, the Court did address the permissibility of strip searches of inmates in Bell v. Wolfish. Federal pretrial detainees at the Metropolitan Correctional Center in New York City challenged the propriety of visual body cavity searches. Noting that the detainees were being held on serious federal charges, recognizing that a detention center is a “unique place fraught with serious security dangers,” 441 U.S. at 559, 99 S.Ct. at 1884, and considering the usefulness of searches in deterring the smuggling of weapons and contraband into the institution, the Court held that searches without probable cause could be conducted despite their undisputed intrusion on the detainees’ privacy interests. Id. at 560, 99 S.Ct. at 1885.

None of these precedents is clearly controlling. In Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.1983), the Seventh Circuit held unconstitutional a municipal policy of strip searching women arrested for misdemeanor offenses. The court ruled that the “full searches” authorized by prior cases “simply did not contemplate the significantly greater intrusions that occurred here,” id. at 1271, and stressed “that the balancing test prescribed in Wolfish does not validate strip searches in detention settings per se." Id. at 1272. The court added:

... Although the majority in Wolfish did not uphold the strip searches conducted there on less than probable cause, the detainees were awaiting trial on serious federal charges after having failed to make bond and were being searched after contact visits. In the cases before us, however, plaintiffs-appellees are minor offenders who were not inherently dangerous and who were being detained only briefly while awaiting bond. In light of the substantial nature of the intrusions involved, we believe these differences are sufficiently significant to compel our own inquiry as to whether the strip searches conducted by the City were “reasonable” under the fourth amendment.

Id. (footnotes omitted).

Examining the magnitude of the invasion of personal rights, the panel concluded that “we can think of few exercises of authority by the state that intrude on the citizen’s privacy and dignity as severely as the visual anal and genital searches practiced here.” Examining the City’s contention that strip searches were necessary to maintain security in its lockups, the court found that “the evidence does not support the view that those dangers are created by women minor offenders entering the lockup for short periods while awaiting bail.” Id. at 1273. Balancing these findings led the court to find insufficient basis “to justify the severity of the governmental intrusion.” Id. It concluded its discussion of Fourth Amendment issues as follows:

Balancing the citizen’s right to be free from substantial governmental intrusions against the mission of law enforcement personnel to ensure a safer society is often a difficult task. While the need to assure jail security is a legitimate and substantial concern, we believe that, on the facts here, the strip searches bore an insubstantial relationship to security needs so that, when balanced against plaintiffs-appellees’ privacy interests, the searches cannot be considered “reasonable.” ... The reasonableness standard usually requires, “at a minimum, that the facts upon which an intrusion is based be capable of measurement against ‘an objective standard,’ whether this be probable cause or a less stringent test.” ...
The more intrusive the search, the closer governmental authorities must come to demonstrating probable cause or believing that the search will uncover the objects for which the search is being conducted____ Based on these principles, we agree with the district court ... that ensuring the security needs of the City by strip searching plaintiffs-appellees was unreasonable without a reasonable suspicion by the authorities that either of the twin dangers of concealing weapons or contraband existed____

Id. (citations omitted).

As defendants acknowledge, Mary Beth G. is one of a number of cases invalidating visual body cavity searches of persons arrested for minor offenses. See, e.g., Hill v. Bogans, 735 F.2d 391 (10th Cir.1984); Logan v. Shealy, 660 F.2d 1007 (4th Cir.1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982); Sala v. County of Suffolk, 604 F.2d 207 (2d Cir.1979), vacated and remanded on other grounds, 446 U.S. 903, 100 S.Ct. 1827, 64 L.Ed.2d 256 (1980); Tinetti v. Wittke, 479 F.Supp. 486 (E.D. Wis.1979), aff’d, 620 F.2d 160 (7th Cir.1980) (per curiam); Security and Law Enforcement Employees v. Carey. They submit, however, that the Sixth Circuit rejected limitations on strip searches in Dufrin v. Spreen, 712 F.2d 1084 (6th Cir.1983), and further maintain that no case has invalidated a policy which—like the one in question here—involved neither touching nor visual inspection of the arrestee during the strip search. Both arguments fail to persuade.

In Dufrin, the court reversed a district court judgment under § 1983 in favor of a woman who was subjected to a visual body cavity search following her arrest on a felony charge. The court discussed Sala, Logan and Tinetti but found them inapplicable in the felony context because they “involved misdemeanors, traffic offenses, or similar minor offenses not normally associated with weapons or contraband.” Id. at 1088. It left the constitutionality of strip searches under those circumstances to another day, stating:

... Since this is a purely individual claim under § 1983, we are not asked—by declaratory judgment or otherwise—to make any rules of broad application or to lay down any bright line based the type of crime charged. It is enough here that (a) the arrestee was formally charged with a felony involving violence, (b) that her detention was under circumstances which would subject her potentially to mingle with the jail population as a whole, and (c) that the search actually conducted was visual only and was carried out discreetly and in privacy. Where these circumstances exist, we do not believe that the sheriff is obliged, as a matter of federal constitutional law, to make a subjective evaluation of the underlying nature of the offense or to determine whether a less intrusive search may be employed____

Id. at 1089.

The constitutional issue left unanswered in Dufrin must now be decided. Defendants suggest that because the record demonstrates neither touching nor visual examination of Fann’s vaginal or anal areas during the search, the City’s policy was appropriate under Giles v. Ackerman, 559 F.Supp. 226 (D.Idaho 1983), and is distinguishable from the policies declared unconstitutional in the cases discussed above. The Giles ruling, however, was reversed by the Ninth Circuit in Giles v. Ackerman, 746 F.2d 614 (9th Cir.1984) (per curiam), cert. denied, — U.S. —, 105 S.Ct. 2114, 85 L.Ed.2d 479 (1985), and the appellate decision enunciates a clear and appropriate “bright line” constitutional rule concerning all strip searches following minor offenses:

... Balancing [the jail’s security] interest against the privacy interests of arrestees, we hold that arrestees may be subjected to a strip search only if jail officials possess a reasonable suspicion that the individual arrestee is carrying or concealing contraband. Reasonable suspicion may be based on such factors as the nature of the offense, the arrestee’s appearance and conduct, and the prior arrest record____

Id. at 617 (citations omitted).

This ruling, citing Mary Beth G., Logan and Tinetti and an appropriate extension of their holding, is a proper rule to be applied in this case. Because the record indicates that Fann was strip-searched following arrest for minor offenses and that no police officer possessed any reasonable suspicion that she was carrying or concealing contraband, her Fourth and Fourteenth Amendment rights were violated.

V.

Having determined that Fann’s constitutional rights were violated, this Court must determine which defendants are subject to liability.

A. City of Cleveland

Municipal bodies, including counties, are not immune from § 1983 actions. Monell v. Dept. of Social Services of City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Owen v. City of Independence, Missouri, 445 U.S. 622,100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). But under Monell and its progeny, a municipal entity cannot be held liable solely on a respondeat superior theory.

... Local governing bodies, therefore, can be sued directly under § 1983 for monetary, declaratory,' or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers. Moreover, although the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, like every other § 1983 “person,” by the very terms of the statute, may be sued for constitutional deprivations pursuant to governmental “custom” even though such a custom has not received formal approval through the body’s official decisionmaking channels ____

Monell, 436 U.S. at 690-91, 98 S.Ct. at 2035-36. Hays v. Jefferson County, 668 F.2d 869, 873 (6th Cir.), cert. denied, 459 U.S. 833, 103 S.Ct. 75, 74 L.Ed.2d 73 (1982); id. at 876 (Merritt, J., dissenting); Dunn v. State of Tennessee, 697 F.2d 121, 128 (6th Cir.1982), cert. denied, 460 U.S. 1086, 103 S.Ct. 1778, 76 L.Ed.2d 349 (1983); see Rowland v. Mad River Local School Dist. Montgomery County, Ohio, 730 F.2d 444, 451 (6th Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 1373, 84 L.Ed.2d 392, reh’g denied, — U.S. —, 105 S.Ct. 2127, 85 L.Ed.2d 491 (1985); Taylor v. Canton, Ohio Police Dept., 544 F.Supp. 783, 788 (N.D.Ohio 1982).

The Supreme Court now has reaffirmed that “Monell’s ‘policy or custom’ requirement ... was intended to prevent the imposition of municipal liability under circumstances where no wrong could be ascribed to municipal decisionmakers.” City of Oklahoma City v. Tuttle, — U.S. —, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985). Here, however, there is no dispute but that the matron was implementing an established City policy and custom when she conducted the strip search of Fann. Accordingly, the City is liable under § 1983 for the deprivation of Fann’s constitutional rights. Such liability cannot be negated by a claim of good faith immunity, which is unavailable to municipalities under Owen.

B. Voinovich and Turner

The Sixth Circuit has recently reiterated that

.. the § 1983 liability of supervisory personnel must be based on more than the right to control employees. Section 1983 liability will not be imposed solely upon the basis of respondeat superior. There must be a showing that the supervisor encouraged the specific incident of misconduct or in some other way directly participated in it. At a minimum, a § 1983 plaintiff must show that a supervisory official at least implicitly authorized, approved or knowingly acquiesced in the unconstitutional conduct of the offending subordinate.

Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir.) (citing Hays v. Jefferson County, 668 F.2d at 872-74), cert. denied, — U.S. —, 105 S.Ct. 156 (1984), 83 L.Ed.2d 93; Smith v. Heath, 691 F.2d 220, 225 (6th Cir.1982).

Since there is no evidence in the record of any authorization, approval or acquiescence by Mayor Voinovich or Safety Director Turner in the strip search challenged here, summary judgment is entered in their favor.

C. Hanton and Police and Jail Officers

Police officers are entitled to qualified or “good faith” immunity from suits for damages arising out of their official acts. Pierson v. Ray, 386 U.S. 547, 557, 87 S.Ct. 1213, 1219, 18 L.Ed.2d 288 (1967). Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), clarified the circumstances under which a trial court may enter summary judgment for a defendant based upon a claim of qualified immunity:

... [Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known____ Reliance on the objective reasonableness of an official’s conduct, as measured by reference to clearly established law, should avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment. On summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred. If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to “know” that the law forbade conduct not previously identified as unlawful____

457 U.S. at 818, 102 S.Ct. at 2738 (citations and footnotes omitted). Decisions since Harlow have stressed that “[a] plaintiff who seeks damages for violation of constitutional or statutory rights may overcome the defendant official’s qualified immunity only by showing that those rights were clearly established at the time of the conduct in issue.” Davis v. Scherer, — U.S. —, 104 S.Ct. 3012, 3021, 82 L.Ed.2d 139, reh’g denied, — U.S. —, 105 S.Ct. 26, 82 L.Ed.2d 919 (1984); Mitchell v. Forsyth, — U.S. —, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).

In light of the Sixth Circuit’s Dufrin ruling, and the fact that many of the crucial rulings on the unconstitutionality of strip searches under the circumstances present here are of relatively recent vintage, this Court believes that the law was not clearly established at the time of Fann’s arrest and strip search on August 13, 1983. See Kathriner v. City of Overland, Missouri, 602 F.Supp. 124, 125 (E.D. Mo.1984); Bovey v. City of Lafayette, Indiana, 586 F.Supp. 1460, 1472 (N.D.Ind. 1984). Accordingly, summary judgment is entered in favor of Hoke, Dickerson, and unnamed defendants, and in favor of Han-ton with respect to all claims against him in his individual capacity. Since he is a supervisory official, however, Hanton’s actions in his official capacity must be “clearly equated ... with the actions of the City itself,” Brandon v. Holt, — U.S. —, 105 S.Ct. 873, 878, 83 L.Ed.2d 878 (1985), and like the City he is not entitled to immunity under Owen. As a practical matter, since Brandon presumes “that a judgment against a public servant ‘in his official capacity’ imposes liability on the entity that he represents,” id., the City must pay any judgment levied against Hanton in his official capacity. See also Kentucky v. Graham, — U.S. —, —, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985) (“an official capacity suit is, in all respects other than name, to be treated as a suit against the entity. Brandon ... ”); id. at —, 105 S.Ct. at 3108. Moreover, punitive damages are not available against either remaining defendant, City of Newport v. Facts Concert. Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981); Brandon, and the claim for them is stricken.

Still pending before the Court is Fann’s motion for leave to amend her complaint to include claims against Pritchett and Lang. Because those defendants would be entitled to summary judgment based upon qualified immunity, the motion is denied.

VI.

Partial summary judgment on the issue of liability is entered in favor of Fann against the City and against Hanton in his official capacity. Summary judgment is entered in favor of defendants Voinovich, Turner, Hoke, Dickerson, unnamed defendants, and Hanton in his individual capacity. Trial on the issue of damages is scheduled for August 5, 1985 (backup trial) and a status call is scheduled for July 22, 1985 at 4:30 p.m.

Defendants’ motion to compel answers to interrogatories is denied as moot pursuant to Fann’s having answered those interrogatories. Defendants’ motion for a protective order quashing notices to take depositions scheduled beyond the discovery cutoff in this case is granted. Defendants’ motion for leave to file reply brief on the statute of limitations issue is denied as moot given the subsequent dispositive holding in Wilson v. Garcia, — U.S. —, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985).

IT IS SO ORDERED.

      . As the record indicates, the City’s policy has been modified since Fann's arrest. Ohio Rev. Code § 2933.32, effective April 4, 1985, imposes stringent limitations on body cavity searches and strip searches. Section 2933.32(A)(2) provides this definition:
      "Strip search” means an inspection of the genitalia, buttocks, breasts, or undergarments of a person that is preceded by the removal or rearrangement of some or all of the person’s clothing that directly covers the person's genitalia, buttocks, breasts, or undergarments and that is conducted visually, manually, by means of any instruments, apparatus, or object, or in any other manner while the person is detained or arrested for the alleged commission of a misdemeanor or traffic offense ____
      Section 2933.32(B) then sets forth these limitations:
      (1) Except as authorized by this division, no law enforcement officer, other employee of a law enforcement agency, physician, or registered nurse or licensed practical nurse shall conduct or cause to be conducted a body cavity search or a strip search.
      (2) A body cavity search or strip search may be conducted if a law enforcement officer or employee of a law enforcement agency has probable cause to believe that the person is concealing evidence of the tools of a crime, contraband, or a deadly weapon, as defined in section 2923.11 of the Revised Code, that could not otherwise be discovered. In determining probable cause for purposes of this section, a law enforcement officer or employee of a law enforcement agency shall consider the nature of the offense with which the person to be searched is charged, the circumstances of the person’s arrest, and, if known, the prior conviction record of the person.
      (3) A body cavity search or strip search may be conducted for any legitimate medical or hygienic reason.
      ******
      (5) Unless there is a legitimate medical reason or medical emergency that makes obtaining written authorization impracticable, a body cavity search or strip search shall be conducted only after a law enforcement officer or employee of a law enforcement agency obtains a written authorization for the search from the person in command of the law enforcement agency, or from a person specifically designated by the person in command to give a written authorization for either type of search.
      (6) A body cavity search or strip search shall be conducted by a person or persons who are of the same sex as the person who is being searched and the search shall be conducted in a manner and in a location that permits only the person or persons who are physically conducting the search and the person who is being searched to observe the search.

      . The Fourth Amendment is enforceable against the states through the Fourteenth Amendment. Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963).

      . In light of its obligation not to decide unnecessary constitutional issues, Lowe v. Securities and Exchange Commission, — U.S. —, —, 105 S.Ct. 2557, 2563, 86 L.Ed.2d 130 (1985); Escambia County, Florida v. Millan, 466 U.S. 48, 104 S.Ct. 1577, 80 L.Ed.2d 36 (1984); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandéis, J., concurring), this Court declines to decide whether there is any validity to Fann’s claims under the Fifth, Eighth and Ninth Amendments.


author: LEVAL, District Judge.

text:
    In the Matter of the Complaint of UNITED STATES LINES, INC., As Bareboat Charterer of the S.S. AMERICAN TRADER for Exoneration From or Limitation of Liability, Plaintiff.
    Nos. 84 Civ. 0308 (PNL), 84 Civ. 2625 (PNL) and 84 Civ. 7273 (PNL).
    United States District Court, S.D. New York.
    July 9, 1985.
    As Amended Nov. 8, 1985.
    Kirlin, Campbell & Keating, New York City, for plaintiff.

      Tabak, Steinman & Mellusi, New York City, for Rose, claimants.
    Paul C. Matthews, New York City, for Valverde, claimant.
    Phillips & Cappiello, New York City, for Chang and Becker, claimants.
   MEMORANDUM AND ORDER

LEVAL, District Judge.

United States Lines, Inc., as owner and bareboat charterer of the vessel S.S. AMERICAN TRADER petitions in admiralty for limitation of its liability pursuant to 46 U.S.C. § 185. Death claimants Marcia J. Rose, Alfredo Valverde, Lieselotte Bello and Shirley Becker move to dismiss the petition as time-barred under 46 U.S.C. § 185.

Facts

The following facts are undisputed: On November 30, 1983, a large wave hit the vessel, S.S. AMERICAN TRADER, while she was en route from California to Hawaii causing the death of four crew members, Dennis Rose, Oscar Bello, Kaliko Chang, and Alfredo Valverde. On about December 24, 1983, Marcia Rose’s attorneys notified U.S. Lines by certified letter that they had been retained to represent her in “an adversarial proceeding” as to all matters arising out of the death of her husband, Dennis Rose.

The following suits were then filed against U.S. Lines seeking damages for the deaths of the four crew members: (1) in federal court on January 13,1984, by Lieselotte Bello for the death of her husband, crew member Bello, seeking $500,000 in damages; (2) in federal court on April 13, 1984 by Shirley Becker for the death of her uncle, crew member Chang, seeking $1 million in damages; (3) in New York state court on July 6, 1984 by Marcia Rose and her two children for the death of her husband, crew member Rose, seeking $35.5 million in damages; and (4) in New York state court on October 25, 1984 by the New York County Public Administrator on behalf of crew member Valverde for $2 million in damages.

On October 10, 1984, U.S. Lines filed this petition. It seeks to limit U.S. Lines’ liability for damages arising out of the accident to the value of the vessel, plus pending freight, the amount being $15,861,474.83, on the contention that the injuries were incurred without the privity or knowledge of the owner. The claimants move to dismiss the petition on the grounds it was not filed within six months after plaintiff received notice of the Bello lawsuit as required by 46 U.S.C. § 185(a).

The matter at issue is not necessarily the shipowner’s right to limitation of liability. Limitation of liability may also be pleaded by an owner in answer to a lawsuit without a six-month bar. See Deep Sea Tankers, Ltd. v. Long Branch, 258 F.2d 757, 772-73 (2d Cir.1958) (shipowner can raise plea of limitation under 46 U.S.C. § 183 in answer to complaint even where § 185 petition would be timed-barred), cert. denied, 358 U.S. 933, 79 S.Ct. 316, 3 L.Ed.2d 511 (1959). By this petition, U.S. Lines seeks certain procedural advantages and possibly also economic advantages resulting from the posture in which the limitation claim is raised.

Discussion

Title 46 U.S.C. § 185 provides, in relevant part:

The vessel owner, within six months after a claimant shall have given to or filed written notice of claim, may petition a district court of the United States of competent jurisdiction for limitation of liability within the provisions of this chapter.

When the shipowner receives written notice of a claim, he has six months “to investigate whether the amount of the claim or other claims likely to be the subject of litigation arising out of the same occurence may exceed the value of his ship.” Matter of the Complaint of Morania Barge No. 190, Inc., 690 F.2d 32, 33 (2d Cir.1982); see Grasselli Chem. Co. No. 4, 20 F.Supp. 394, 396 (S.D.N.Y.1937) (if shipowner fails to file petition within six months of receiving first claim, right to file petition is lost entirely as to all subsequent claims arising out of the same occurence). Moreover, the owner must file the petition within six months after receiving written notice of any claim even if it is not clear how many claims will be filed or what their total amount will be. See Morania Barge, 690 F.2d at 34; In re Allen Spooner & Sons, Inc., 253 F.2d 584, 586 (2d Cir.) (shipowner can file petition even when the notice of claim is equivocal and amount of claim is not stated), appeal dismissed, 358 U.S. 30, 79 S.Ct. 9, 3 L.Ed.2d 48 (1958).

In Morania Barge, however, the Court of Appeals made an exception to the six-month rule. It held that the limitations period begins to run “only upon its appearing that there is a reasonable possibility that the claims would exceed the value of the ship.” Id. at 34. There plaintiff had continually stated in the complaint and bill of particulars that he was seeking damages of $366,563.94, an amount substantially less than the value of the ship and freights. Four and one-half years after the action was begun, plaintiff amended the complaint to increase the amount of the damages to $2.5 million, which exceeded the amount of the shipowner’s fund. The shipowner filed a petition for limitation. The district court dismissed the petition as time-barred, but the Court of Appeals reversed, holding that the shipowner had a right to rely on the amount of damages stated in the complaint, noting that the shipowner had no reason to believe that the amount claimed would exceed the value of the fund.

U.S. Lines contends that the Morania Barge exception should apply in this ease. It argues that until the Rose lawsuit was filed in July 1984 claiming $35.5 million it had no reason to believe that the total number of claims would exceed the limitation value. Until July 1984, only two other claims had been filed, one (Becker’s claim) based on an attenuated relationship between the decedent and the claimant (uncle and niece). Moreover, when the ship had docked after the accident in January 1984, the United States Coast Guard had made an investigation and had issued findings absolving the shipowner from liability on the grounds that the accident was caused by a freak of nature.

In my view, the Morania Barge exception should not apply to this case. In that situation, the shipowner was misled by the claimant's initial small claim into believing that it was not at risk for a much larger amount. The Court of Appeals stated that the exception is limited to cases where “the claimant affirmatively states on the record that his total claims amount to a figure that is substantially less than the value of the ship and no other claims are in the offing." 690 F.2d at 34 (emphasis added). Even assuming the last clause goes too far and would not foreclose the exception where additional small claims were “in the offing,” it seems clear the Court of Appeals did not intend to give the shipowner the benefit of the exception where it knowingly faced a number of death claims that might predictably be asserted for amounts exceeding the limitation value. See Allen N. Spooner, 253 F.2d at 587 (J. Hand, concurring) (“where the owner makes no attempt of any kind to force the claimant to make his position clear” the risk is on the owner that the claimant may assert a claim above the value of the ship and her freight).

U.S. Lines was not misled into believing that the total amount of the claims would not exceed the value of the ship. It was well aware that four crew members had lost their lives and that claimants on behalf of all these decedents might file substantial claims. Even though the Bello and Becker complaints set forth smaller amounts in their ad damnum clauses, there was no reason for U.S. Lines to assume that the Rose and Valverde claimants would not seek greater amounts. Indeed, since Rose was the only crew member who left a wife and two children as survivors, it was predictable that the amount of the Rose claims would be much larger than those made by the other crew members’ families.

As to multiple claims, it is true that the rule first enunciated in Grasselli Chem. Co. No. 4, supra, requiring the owner to file the petition within six months after he receives his first written notice of a claim or lose the right to file a petition as to all subsequent related claims, has been criticized as representing an unnecessarily literal reading of the statute. See 3 Benedict on Admiralty § 15 at 2-18 (7th ed. 1985); G. Gilmore & C. Black, The Law of Admiralty § 10.16 at 861-62 (2d ed. 1975). This holding has, however, not been overruled and has been followed by various courts. See, e.g., Complaint of Peter Kiewit Sons’ Co., 1979 A.M.C. 1091, 1093-94 (D.Md. 1979); Petition of American M.A.R.C., Inc., 224 F.Supp. 573, 575 (S.D.Cal.1963). One court has stated that since § 185 was designed “to cut down the right of a shipowner to limit his liability, the time limit imposed by this [Section] should be strictly enforced.” Cincinnati Gas & Elec. Co. v. Abel, 533 F.2d 1001, 1005 (6th Cir.), cert. denied, 429 U.S. 858, 97 S.Ct. 158, 50 L.Ed.2d 136 (1976).

The petition for exoneration from or limitation of liability is dismissed as untimely.

      . Section 183(a) of Title 46 provides in turn that "[t]he liability of the owner of any vessel ... for any loss, damage, or injury ... incurred, without the privity or knowledge of such owner ... shall not [except in certain instances] exceed the amount or value of the interest of such owner in such vessel and her freight then pending." The right to limitation of liability may be pleaded in an answer to any complaint filed against the shipowner. It is not subject to the six month statute of limitations in § 185. Deep Sea Tankers, Ltd. v. Long Branch, 258 F.2d 757, 773 (2d Cir.1958), cert. denied, 358 U.S. 933, 79 S.Ct. 316, 3 L.Ed.2d 511 (1959).

      . In certain situations where the shipowner receives a written claim for a relatively small amount and soon thereafter settles the claim before he receives notice of any other claim, it might be considered too onerous to require the shipowner to file the petition (and post the requisite security, etc.) within six months after receiving the first notice of claim. See G. Gilmore & C. Black, supra. However, this is not the situation here. U.S. Lines never settled the Bello claim and it was well aware before the Bello claim was even filed that Marcia Rose had hired attorneys and might file a claim against it.


author: TOM S. LEE, District Judge.

text:
    Otis NICHOLSON, a/k/a William Nicholson, Plaintiff, v. AMALGAMATED LIFE INSURANCE COMPANY (The Amalgamated Cotton Garment Allied Industries Fund), Defendant.
    Civ. A. No. E83-0186(L).
    United States District Court, S.D. Mississippi, E.D.
    July 15, 1985.

      Louie M. Bishop, Bishop & Howard, Waynesboro, Miss., for plaintiff.
    John L. Maxey, Cupit & Maxey, Jackson, Miss., for defendant.
   MEMORANDUM OPINION

TOM S. LEE, District Judge.

This cause is before the court on the motion of the defendant, Amalgamated Life Insurance Company (Amalgamated), for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. After consideration of the briefs with attachments submitted by the parties, the court is of the opinion that the defendant’s motion for summary judgment should be granted.

Nicholson was hospitalized in December 1982 and incurred medical expenses in the amount of $498.90. Amalgamated was first notified of plaintiff’s claim on April 27, 1983 when it received a copy of Nicholson’s hospital bill. Since Blue Cross of Pennsylvania had paid $400.90 of the bill, Amalgamated directed its payor, Blue Cross of Philadelphia, to pay the remaining $98.00 which the defendant claims it understood to be due to Nicholson under its coordination of benefits provision. This provision states that, where an insured is covered under the Amalgamated Garment and Allied Industries Fund, which is insured by Amalgamated Life Insurance Company, and also by other group coverage, the benefits under the Fund’s group coverage and the benefits provided to the insured under his other group coverage are to be coordinated so that the insured receives no more money in insurance benefits than the actual amount of his incurred expenses. The defendant alleges that it discovered that Blue Cross of Pennsylvania insured Nicholson under individual coverage rather than group coverage after the plaintiff had obtained legal counsel. Therefore, Amalgamated directed Blue Cross of Philadelphia to pay him the remaining $400.90 due Nicholson under his group coverage insurance policy.

Nicholson was a member of the Amalgamated Clothing and Textile Workers Union and obtained his insurance coverage with Amalgamated Life Insurance Company as a benefit of that membership. James E. Jackson, International Vice President of the union, has, by affidavit, stated that Nicholson never filed a grievance under the collective bargaining agreement or supplemental agreement as to any complaint with regard to the payment or handling of his insurance claim. The plaintiff charges that the defendant willfully and deliberately failed to pay the amount owed under his group insurance policy in bad faith and seeks both actual and punitive damages.

The court is of the opinion that the plaintiff’s state based tort action for bad faith delay in making payment under the collective bargaining agreement is preempted by § 301 of the Labor Management Relations Act of 1947 (LMRA), 61 Stat. 156, 29 U.S.C. § 185, according to the recent U.S. Supreme Court decision in Allis-Chalmers Corp. v. Lueck, — U.S. —, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985). In Lueck, the plaintiff was a member of the United Automobile, Aerospace and Agricultural Implement Workers of America and was employed by Allis-Chalmers Corporation (Allis-Chalmers). Lueck’s union and employer were both parties to a collective bargaining agreement funded by Allis-Chalmers and administered by Aetna Life & Casualty Company (Aetna). After suffering a back injury, Lueck filed a disability claim with Aetna and subsequently began receiving disability benefits effective from the date of filing. Lueck later complained, however, that his employer would periodically order Aetna to terminate payments either because he failed to appear for a doctor’s appointment, required hospitalization for reasons unrelated to his back injury or for no reason at all. Lueck also complained of harassment by Allis-Chalmers in that he was repeatedly asked by his employer to submit to reexamination by different doctors. Instead of attempting to resolve his dispute by utilizing the grievance procedure, Lueck filed suit against Allis-Chalmers and Aetna in state court alleging that they had intentionally failed to make disability payments without a reasonable basis for withholding the payments. Subsequent to the filing of his suit, Lueck’s claims were all eventually paid.

On cross-motions for summary judgment, the state trial court ruled in favor of Allis-Chalmers and Aetna, holding that Lueck had stated a claim under § 301 of the LMRA but that, if his claim were “deemed to arise under state law instead of Section 301”, then the state law claim was preempted by federal law. On appeal, the Wisconsin Court of Appeals affirmed but the Supreme Court of Wisconsin reversed, reasoning that a § 301 suit arises from a violation of a labor contract, whereas Lueck’s claim was in tort for bad faith and that, under Wisconsin law, the latter was distinguishable from a bad faith breach of contract claim. — U.S. at —, 105 S.Ct. at 1908. The Wisconsin Supreme Court further determined that the bad faith claim was not preempted by federal law, concluding that the administration of claim procedures under a collective bargaining agreement was not of central concern to federal labor law or a mainstay of labor relations. On writ of certiorari, the U.S. Supreme Court reversed, holding that “when resolution of a state law claim is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract, that claim must either be treated as a § 301 claim ... or dismissed as pre-empted by federal labor-contract law.” — U.S. at —, 105 S.Ct. at 1916.

Nicholson, however, alleges that the facts in the instant case and those in Allis-Chalmers Corp. v. Lueck are distinguishable in that the defendant’s refusal to pay was not the result of any interpretation of the collective bargaining agreement but was simply a failure to pay in bad faith. A similar argument was advanced by Lueck before the Wisconsin Supreme Court and the U.S. Supreme Court. Justice Black-mun, writing for the majority, stated:

The Wisconsin court attempted to demonstrate by a proffered example, the way in which a bad-faith tort claim could be unrelated to any contract claim. It noted that an insurer ultimately could pay a claim as required under contract, but still cause injury through “unreasonably delaying payments” of the claim____ In such a situation, the courts reasoned, the state tort claim would be adjudicated without reaching questions of contract interpretation. Ibid. The court evidently assumed that the only obligations the parties assumed by contract are those expressly recited in the agreement, in this case the right to receive benefit payments for non-occupational injuries. Thus, the court reasoned, the good-faith behavior mandated in the labor agreement was independent of the good-faith behavior required by state insurance law because “[g]ood faith in the labor agreement context means [only] that parties must abide by the specific terms of the labor agreement.”
If this is all there is to the independence of the state tort action, that independence does not suffice to void the pre-emptive effect of § 301. The assumption that the labor contract creates no implied rights is not one that state law may make. Rather, it is a question of federal contract interpretation whether there was an obligation under this labor contract to provide the payments in a timely manner, and, if so, whether Allis-Chalmers’ conduct breached that implied contract provision. .
The Wisconsin court’s assumption that the parties contracted only for the payment of insurance benefits, and that questions about the manner in which the payments were made are outside the contract is, moreover, highly suspect. There is no reason to assume that the labor contract as interpreted by the arbitrator would not provide such relief.

— U.S. at —, 105 S.Ct. at 1913. In this case, as in the Supreme Court case, the plaintiff was eventually paid the total amount due under his insurance policies. The basic claim before this court, and the claim that was advanced in Lueck, is that the plaintiff was not timely paid, that he had to obtain an attorney before the defendants paid the claim and that the plaintiff incurred expenses and emotional distress as the result of the delayed payments. As the Supreme Court stated, the existence of an implied obligation under a collective bargaining agreement to pay in a timely manner is a question of federal contract interpretation. As such, Nicholson’s claim is preempted by § 301 of the LMRA; otherwise, as the Supreme Court held, Congress’ goal of a unified federal body of labor-contract law would be subverted. — U.S. at —, 105 S.Ct. at 1914-16.

The plaintiff alternately argues that, if his claim is under § 301, he should be allowed to proceed in the absence of compliance with the grievance requirements because the actions of the defendant’s officials demonstrated that the filing of a formal grievance would have been futile. In support of his contention, Nicholson states that the defendant, through the plant insurance representative, the joint board of the union in Hattiesburg, Mississippi and the company representative in New York, all informed Nicholson that the defendant would not pay the claim. Ordinarily, an employee claiming violation of a collective bargaining agreement by his employer must first exhaust his remedies provided in the agreement. Rabalais v. Dresser Industries, Inc., 566 F.2d 518, 519 (5th Cir.1978). No exhaustion is necessary, however, if (1) the union wrongfully refuses to process the employee’s grievance in violation of its duty of fair representation; (2) the employer’s conduct amounts to a repudiation of the remedial procedures stated in the contract; or (3) the exhaustion of remedies would be futile. Id. The court concludes, however, that since the plaintiff did not allege a claim under § 301 in his complaint, much less a charge of futility, to allow the plaintiff to proceed on this basis would be prejudicial to the defendant by not providing it with fair notice of the claim under F.R.C.P. 8(a)(2). See Rabalais v. Dresser Industries, Inc., 566 F.2d at 519 (futility exception does not apply since plaintiff did not allege futility in complaint).

Accordingly, it is the court’s opinion that the defendant’s motion for summary judgment on the claim that the state law claim is preempted by § 301 should be granted. A separate judgment shall be submitted in accordance with the local rules.

      . According to the defendant, Nicholson failed to attach a claim form or a statement concerning his individual insurance coverage, causing the defendant to assume mistakenly that Blue Cross of Pennsylvania had paid under group coverage.


author: EDWARD C. REED, Jr., District Judge.

text:
    Eugene GLICK, M.D., and Planned Parenthood of Washoe County, a non-profit Nevada corporation, Plaintiffs, v. Brian McKAY, Attorney General of the State of Nevada; Mills Lane, District Attorney of the County of Washoe, State of Nevada; Noel Waters, District Attorney for Carson City, State of Nevada; Michael B. Dinning, District Attorney for the County of Churchill, State of Nevada; Robert J. Miller, District Attorney for the County of Clark, State of Nevada; Brent T. Kolvet, District Attorney for the County of Douglas, State of Nevada; James E. Wilson, District Attorney for the County of Elko, State of Nevada; Jerrold Courtney, District Attorney for the County of Esmeralda, State of Nevada; Johnson W. Lloyd, District Attorney for the County of Eureka, State of Nevada; Virginia Shane, District Attorney for the County of Humboldt, State of Nevada; Hy Forgeron, District Attorney for the County of Lander, State of Nevada; Eileen Barnett, District Attorney of the County of Lincoln, State of Nevada; William G. Rogers, District Attorney of the County of Lyon, State of Nevada; Larry G. Bettis, District Attorney of the County of Mineral, State of Nevada; Andy Demetras, District Attorney of the County of Nye, State of Nevada; Richard Wagner, District Attorney of the County of Pershing, State of Nevada; Tom Wright, District Attorney of the County of Storey, State of Nevada; Steven G. McGuire, District Attorney of the County of White Pine, State of Nevada, Defendants.
    No. CV-R-85-33.
    United States District Court, D. Nevada.
    July 17, 1985.

      Stanley H. Brown, Sr., and Stanley H. Brown, Jr., Reno, Nev., for plaintiffs.
    Brian McKay, Atty. Gen., Carson City, Nev., James E. Wilson, Elko County Dist. Atty., Elko, Nev., Virginia Shane, Humboldt County Dist. Atty., Winnemucca, Nev., Larry G. Bettis, Mineral County Dist. Atty., Hawthorne, Nev., Noel Waters, Carson City Dist. Atty., Carson City, Nev., Robert J. Miller, Clark County Dist. Atty., Las Vegas, Nev., Jerrold Courtney, Esmeralda County, Dist. Atty., Goldfield, Nev., Eileen Barnett, Lincoln County Dist. Atty., Pioche, Nev., Andy Demetras, Nye County Dist. Atty., Tonopah, Nev., Michael B. Dinning, Churchill County Dist. Atty., Fallon, Nev., Brent T. Kolvet, Douglas County Dist. Atty., Minden, Nev., John W. Lloyd, Eureka County Dist. Atty., Eureka, Nev., William Rogers, Lyon County Dist. Atty., Yerington, Nev., Richard Wagner, Pershing County Dist. Atty., Lovelock, Nev., Thomas P. Wright, Storey County Dist. Atty., Virginia City, Nev., Brian McKay, Atty. Gen., Ellen F. Whittemore, Deputy Atty. Gen., Las Vegas, Nev., Mills Lane, Washoe County Dist. Atty., Reno, Nev., Hy T. Forgeron, Lander County Dist. Atty., Battle Mountain, Nev., Steven G. McGuire, White Pine County Dist. Atty., Ely, Nev.
   ORDER

EDWARD C. REED, Jr., District Judge.

I. Introduction

Plaintiffs seek declaratory and injunctive relief pursuant to the United States Constitution and 42 U.S.C. § 1983. Plaintiffs challenge the constitutionality of Sections 1, 2, 7, and 8 of Senate Bill 510 which amended certain provisions of NRS ch. 442. See Act of June 14, 1985, Ch. 681, 1985 Nev.Adv. Sheets 2306 (to be codified at NRS ch. 442).

The challenged statute prevents a physician from performing an abortion upon an unemancipated minor without first notifying the parents or receiving court authorization to perform the abortion. The plaintiffs challenge the constitutional sufficiency of the statute’s procedures whereby an unemancipated minor may seek an order from a state district court authorizing the physician to perform the abortion. If the order is denied, then the minor may petition the court seeking a decree for the waiver of the notification requirement. The court may waive the notification requirement if the court finds that the petitioner is mature enough to make the abortion decision on her own or that, even if immature, waiver of notification is in her best interests.

The plaintiffs are a physician, Dr. Eugene Glick, and a non-profit family planning clinic, Planned Parenthood of Washoe County. The defendants are the state and local officials charged with enforcing the challenged statute.

On June 28, 1985, this Court entered a Temporary Restraining Order pursuant to Fed.R.Civ.P. 65 restraining the statute. The challenged statute was to go into effect at midnight July 1, 1985. We subsequently extended the restraining order until July 18, 1985. On July 8, 1985, the Court held a hearing on the plaintiffs’ motion for preliminary injunction.

The following constitutes this Court’s findings of fact and conclusions of law.

At oral argument, defendants argued for the first time that neither plaintiff has standing to represent minor women patients. This argument is without merit. Plaintiff Dr. Glick has standing to assert both his own rights and those of his women patients to challenge the constitutionality of the sections at issue in this case. See Singleton v. Wulff, 428 U.S. 106, 112, 96 S.Ct. 2868, 2873, 49 L.Ed.2d 826 (1976); Planned Parenthood v. Danforth, 428 U.S. 52, 62, 96 S.Ct. 2831, 2837, 49 L.Ed.2d 788 (1976).

This Court will grant a preliminary injunction if the moving party demonstrates “either a combination of probable success on the merits and a possibility of irreparable injury, or that serious questions are raised and the balance of hardships tips sharply in the moving party’s favor.” Students of California School for the Blind v. Honig, 736 F.2d 538, 542 (9th Cir.1984) quoting Beltran v. Myers, 677 F.2d 1317, 1320 (9th Cir.l982)(emphasis in original). With this standard in mind, we review plaintiffs’ challenges.

II. Parental Notification and Bypass

The constitutional guarantee of personal liberty protects a woman’s right to terminate her pregnancy. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). The Supreme Court has not wavered from “the basic principle that a woman has a fundamental right to make a highly personal choice whether or not to terminate her pregnancy.” City of Akron v. Akron Center for Reprod. Health, 462 U.S. 416, 420 n. 1, 103 S.Ct. 2481, 2487 n. 1, 76 L.Ed.2d 687 (1983) (citations omitted). However, this right is not absolute and the Supreme Court has noted that “a State’s interest in protecting immature minors will sustain a requirement of a consent substitute, either parental or judicial.” Id. at 439, 103 S.Ct. at 2497. A state’s interest in protecting immature minors and in promoting family integrity gives the State a special interest in ensuring that the abortion decision is made with understanding and after careful deliberation. Id. at 443, n. 32, 103 S.Ct. at 2500, n. 32. Thus, Nevada’s parental notification statute is not per se unconstitutional and must be analyzed under the applicable constitutional analysis. We note, too, that “[wjhere fairly possible, courts should construe a statute to avoid a danger of unconstitutionality.” Planned Parenthood v. Ashcroft, 462 U.S. 476, 493, 103 S.Ct. 2517, 2526, 76 L.Ed.2d 733 (1983) (opinion of Powell, J.).

The parties sharply disagree as to whether the constitutional analysis applicable to parental consent statutes should be applied to a parental notification statute such as Nevada’s. Although there is some support in older cases for defendants’ argument that the consent analysis is inapplicable to notification statutes, the more recent opinions are contrary. The Seventh Circuit carefully considered this issue and found it had been settled:

“In City of Akron v. Akron Center for Reproductive Health, Inc., [462] U.S. [416], 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983), the Court said that the state’s interest in encouraging parental involvement—either through a consent or notification statute—in a minor’s decision to have an abortion ‘must give way to the constitutional right of a mature minor or of an immature minor whose best interests are contrary to parental involvement.’ Id. [103 S.Ct.] at 2491 n. 10. The Court went on to hold that a procedure whereby parents would be notified when a minor filed a petition seeking court approval of an abortion would be unconstitutional as applied to a mature minor. Id at 2498 n. 31.”

Indiana Planned Parenthood Affiliates Ass’n, Inc. v. Pearson, 716 F.2d 1127, 1132 (7th Cir.1983) (footnote omitted). The Seventh Circuit carefully reasoned through the applicable Supreme Court opinions in reaching this conclusion. This Court also carefully reviewed the complex body of applicable law. We conclude that “a State may not validly require notice to parents in all cases, without providing an independent decisionmaker to whom a pregnant minor can have recourse if she believes that she is mature enough to make the abortion decision independently or that notification otherwise would not be in her best interests.” H.L. v. Matheson, 450 U.S. 398, 420, 101 S.Ct. 1164, 1177, 67 L.Ed.2d 388 (1981) (Powell, J., concurring). Thus, we will apply the Supreme Court’s analysis with respect to consent bypass procedures to determine the constitutional sufficiency of Nevada’s notification bypass procedures.

The Supreme Court holds that a state’s interest in protecting immature minors will sustain a requirement of a consent substitute, either parental or judicial. City of Akron, 462 U.S. at 439, 103 S.Ct. at 2497. It is clear, however, that “the State must provide an alternative procedure whereby a pregnant minor may demonstrate that she is sufficiently mature to make the abortion decision herself or that, despite her immaturity, an abortion would be in her best interests.” Id. at 439-440, 103 S.Ct. at 2497-2498. The question presented is whether Nevada’s statute provides a judicial alternative that is consistent with this legal standard.

A. NRS § 442.255

The alternative provided by the Nevada statute is a two-tiered judicial procedure.

The first step the minor woman must meet is to request a state district court to issue an order authorizing an abortion. NRS § 442.255(2). The court is directed to interview the woman within two judicial days. Id. The order authorizing or denying the abortion shall be entered within one judicial day of the interview. NRS § 442.-255(3). If the district court neither grants nor denies authorization in writing within one judicial day, then authorization is deemed to have been granted. Id.

The statute directs the court to “take the necessary steps to ensure that the interview and any other proceedings held pursuant to this subsection or section 1 of this act are confidential.” NRS § 442.255(4).

Defendants argue that this first step is intended as an informal procedure designed for flexibility. However, the statute requires an order from a district court judge which is a traditional judicial act.

Further, the provision for a “pocket approval” puts the physician in a difficult position. If the district court does nothing, authorization for the physician to perform the abortion is deemed to have been granted. NRS § 442.255(3). The physician is subjected to liability if the abortion is performed without authorization, but the physician has nothing tangible to rely upon to prove compliance with the law. In the case of “pocket approval,” no record is made of the authorization.

Second, the statute fails to provide for an adequate confidentiality. The court is vaguely directed to “take the necessary steps” to ensure confidentiality. NRS § 442.255(4). The United States Supreme Court requires specific assurances of anonymity in consent bypass procedures. See Bellotti v. Baird (Bellotti II), 443 U.S. 622, 644, 99 S.Ct. 3035, 3048, 61 L,Ed.2d 797 (1979). The plurality in Bellotti II required that the alternative to parental consent must “assure” that the resolution of this question “will be completed with anonymity and sufficient expedition to provide an effective opportunity for an abortion to be obtained.” Id. Thus, plaintiffs raise serious questions as to the constitutionality of NRS § 442.255(2), (3), (4) and hardships tip in favor of plaintiffs. These provisions, therefore, should be enjoined.

B. Section 2, Senate Bill 510

If the court denies authorization of the abortion under NRS § 442.255, section 2 of Senate Bill 510 provides that a petition may. be made by the minor to the court. At this point, the statute provides that counsel may be appointed to help the minor prepare her petition. A hearing on the merits and on the record must be held within 5 judicial days after the filing of the petition. The district court hears evidence relating to emancipation, maturity, and any other useful information. The court then issues a decree either granting or denying the petition. If the petition is granted, the physician may perform the abortion. If the petition is denied, the court must set forth grounds for the denial. An appeal may then be taken to the Nevada Supreme Court. The notice of intent to appeal must be made within one judicial day and the record must be perfected within five judicial days. The act directs the court (presumably the Nevada Supreme Court) to provide for a confidential and expedited appellate review of cases appealed.

However, the statute fails to set forth any time frame for the district court to render its decision on the petition. This raises serious questions as to whether the Nevada statute assures that the petition will be completed with sufficient expedition to provide an affective opportunity for an abortion to be obtained. In a best case analysis, the minimum time for the two-step judicial procedure is fourteen judicial days. This is assuming the district court enters its order on the petition the same day as the hearing. Thus, if denied, the minor woman has expended approximately three weeks of her first trimester. This alone raises serious questions of the statute’s constitutionality because time lost in the first trimester is crucial. See e.g. H.L. v. Matheson, 450 U.S. at 412, 101 S.Ct. at 1172 (noting that time is likely to be of the essence in an abortion decision).

In Ashcroft, the United States Supreme Court upheld the Missouri parental consent statute’s provision providing for expeditious appeals because the court found that the framework for a constitutionally sufficient means of expediting judicial proceedings was contained in the statute. Ashcroft, 462 U.S. at 491 n. 16, 103 S.Ct. at 2525 n. 16. However, that statute provided that:

The notice of intent to appeal shall be given within twenty-four hours from the date of issuance of the order. The record on appeal shall be perfected within five days from the filing of notice to appeal. Because time may be of the essence regarding the performance of the abortion, the supreme court of this state shall, by court rule, provide for expedited appellate review of cases appealed under this section.

Mo.Rev.Stat. § 188.028.2(6) (Supp.1982). Nevada’s general instruction to the Nevada Supreme Court “to provide for a confidential and expedited appellate review of cases appealed” is insufficient. Citing Ashcroft, the Third Circuit states that “[t]o pass constitutional muster, the alternative judicial procedure must be an established and practical avenue and may not rely solely on generally stated principles of availability, confidentiality, and form.” American College of Obstetricians v. Thornburgh, 737 F.2d 283, 297 (3d Cir.1984); jur. post. — U.S. —, 105 S.Ct. 2015, 85 L.Ed.2d 297 (1985). Other courts that have been faced with the absence of rules governing expedited appeals have enjoined the statute until such time as the rules are promulgated. See Zbaraz v. Hartigan, 763 F.2d 1532 (7th Cir.1985); Thornburgh, 737 F.2d 283; Indiana Planned Parenthood v. Pearson, 716 F.2d 1127 (7th Cir.1983) (striking down an Indiana parental notification statute because, among other grounds, it did not even mention appeals). This Court agrees with the analysis used by these courts and finds their reasoning persuasive.

This Court finds that until the Nevada Supreme Court promulgates rules or orders in accordance with Section 2, the absence of such rules is a fundamental defect in that section. Thus, we find that plaintiffs have raised serious questions as to the constitutionality of Section 2 and that the hardships tip in favor of plaintiffs. Section 2 is, therefore, enjoined.

C. Severability

Defendants argued at the hearing on the preliminary injunction that even if this Court decided to enjoin Section 2 and NRS § 442.255 (2), (3), (4), the Court should not enjoin NRS § 442.255(1). NRS § 442.-255(1) requires that a physician personally notify parents of all minors (both mature and immature).

In support of this contention defendants argue: (1) that plaintiffs failed to seek an injunction of NRS § 442.255(1), and (2) that standing alone NRS § 442.255(1) is constitutional.

Unconstitutional provisions in a statute shall be severed if it appears that the legislature would have enacted the constitutional provisions of the statute independently of those provisions. Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 931-32, 103 S.Ct. 2764, 2774-75, 77 L.Ed.2d 317 (1983) (citing Buckley v. Valeo, 424 U.S. 1, 108, 96 S.Ct. 612, 677, 46 L.Ed.2d 659 (1976)). Nevada law contains a general severability section which applies to any provision of the Nevada Revised Statutes. NRS § 0.010. Although there is no severability provision in the parental notification statute, NRS § 0.020 evidences the intent that the Nevada legislature intends the constitutional provisions of the Act to go into effect without the unconstitutional provisions.

The bypass procedure has been enjoined by this Court. Without that procedure, plaintiffs raise serious questions as to whether the requirement of parental notification to mature minors can stand alone. Thus, regardless of the severability provided in NRS § 0.020, the Court must enjoin NRS § 442.255(1) until the constitutional infirmities of the bypass procedure have been rectified.

Because this Court will enjoin the above-named provisions, we find that NRS § 442.-257 (which provides for criminal penalties) should also be enjoined.

III. NRS § 442.253(l)(c)

Under NRS § 442.253(l)(c):

“The attending physician or a person meeting the qualifications established by regulations adopted by the health division shall accurately and in a manner which is reasonably likely to be understood by the pregnant woman:
c) Explain the physical and emotional implications of having the abortion.”

The Supreme Court holds that a state may require a physician to make certain that his patient understands the physical and emotional implications of having an abortion. City of Akron, 462 U.S. at 445, 103 S.Ct. at 2500-01. Plaintiffs argue that Nevada, by using the word “explain” rather than “understand,” have placed an unconstitutional burden on the physician. This Court disagrees. The requirement that the physician explain the physical and emotional implications conforms to the Supreme Court’s allowance that a state has an interest in insuring that the abortion decision is made with “full knowledge of its nature and consequences.” Planned Parenthood v. Danforth, 428 U.S. at 67, 96 S.Ct. at 2840.

Thus, this Court concludes that the plaintiffs have failed to show a probable success on the merits or to raise serious questions on their claim that NRS § 442.253(l)(c) is unconstitutional. Because of the Court’s finding that the Nevada legislature intended the constitutional provisions to be severed, we will not enjoin NRS § 442.-253(l)(c).

IV. CONCLUSION

IT IS, THEREFORE, HEREBY ORDERED that in accordance with the above order, and to the extent therein stated, plaintiffs’ motion for preliminary injunction is granted and a preliminary injunction shall be issued by the Court.

      . Defendants argue that there are two different alternatives: (1) an independent decision maker and (2) a judicial bypass. This argument is without merit. The minor, if wishing to avoid parental notification, must first go to the "independent decision maker—a district judge—before proceeding with a petition before the district court. The first step found in NRS § 442.-255(2), (3), (4) is not a separate alternative as argued. Rather, this provision is a judicial condition precedent to Section 2 of Senate Bill 510. The defendants characterization of this alternative as "non-judicial” also raises questions as to whether or not the district judge would also lose his or her judicial immunity and could, therefore, be sued in their capacity as an “independent decision-maker."

      . This step is so flexible that the district court and the minor woman is given no guidance as to the procedure to be followed. The defendants argue that the minor need only phone the district judge’s secretary for an interview appointment and need not even give her name. It is difficult to believe that a district court could conduct its business in this manner.

      . The directive by the Nevada legislature to the Supreme Court to either promulgate rules or issue an order to provide for a confidential and expedited review of cases appealed may violate the separation of powers in Nevada's constitution. Under the Nevada constitution, the legislature is charged with prescribing the law and the manner in which appeals may be taken from the district courts. Nev. Const. Art. 6, § 8. Thus, the legislature may be required to provide for the expedited review so as not to unconstitutionally delegate its power to the Nevada Supreme Court.


author: JAMES LAWRENCE KING, Chief Judge.

text:
    UNITED STATES of America, Plaintiff, v. Daniel RODRIGUEZ and Felix Gonzalez, Defendants.
    No. 84-793-CR-KING.
    United States District Court, S.D. Florida.
    July 19, 1985.
    Gary H. Nunes, Asst. U.S. Atty., Miami, Fla., for plaintiff.
    Steven H. Haguel, Miami, Fla., for defendants.
   ORDER GRANTING GOVERNMENT’S MOTION FOR RECONSIDERATION: UPON RECONSIDERATION, THIS COURT’S ORDER OF JUNE 25, 1985, IS VACATED AND THE MAGISTRATE’S REPORT AND RECOMMENDATION GRANTING DEB'END-ANTS’ MOTION TO SUPPRESS IS HEREBY REVERSED

JAMES LAWRENCE KING, Chief Judge.

THIS CAUSE arises before this Court upon the Government’s motion for reconsideration of this Court’s order of June 25, 1985, wherein the Magistrate’s report and recommendation granting the defendants’ motion to suppress was approved and adopted. However, in light of two recent Eleventh Circuit opinions on the issue of standing, which were rendered subsequent to defendants’ motion to suppress hearing, this Court finds that its order of June 25 must be vacated and the Magistrate’s report and recommendation reversed.

In light of United States v. Sarda-Villa, 760 F.2d 1232 (11th Cir.1985) and United States v. Lopez, 761 F.2d 632 (11th Cir. 1985), the issue before the Court is whether defendants established standing—and thus a reasonable expectation of privacy in the hidden compartment, at the motion to suppress hearing before Chief U.S. Magistrate Peter R. Palermo on March 11, 1985.

Factual Background

On November 8, 1984, at approximately 11:30 at night, the defendants were attempting to pull defendant Gonzalez’ 21’ pleasure boat from the water at the Dinner Key boat ramp. It was at this time that certain events transpired which led Customs officers Alaimo and Maschi to board the boat. Once on board, Alaimo viewed the cabin area of the boat and it was at this time that he smelled a very strong odor of fiberglass. After viewing the storage area compartment in the cabin, he observed what appeared to be recent fiberglass work on the inner wall of the storage compartment. After asking defendant Rodriguez to ask defendant Gonzalez if they had had any, or had done any, recent fiberglass work on the boat, whereupon defendant Rodriguez responded “No, they had not,” officer Maschi then confirmed Alaimo’s observations. At this time the officers began breaking the interior wall of the storage compartment and, upon breaking the wall, they could see and smell marijuana.

Reasonable or Justifiable Expectation of Privacy Defined

As the Government suggests, based on the case law at the time the defendants’ argued at the motion to suppress hearing that the requisite standing had been met since (1) they had a legitimate right to be on board the boat, (2) they held a possessory interest in the marijuana, and (3) they had an expectation of privacy due to the fact that the marijuana was in the hidden compartment for the sake of privacy, the Magistrate granted the motion to suppress. However, in light of Sarda-Villa and Lopez, the Government has withdrawn its concession that the defendants’ had established standing and now asserts otherwise.

In Sarda-Villa, the Eleventh Circuit reemphasized the Supreme Court’s decision in New Jersey v. T.L.O., — U.S. —, —, 105 S.Ct. 733, 742, 83 L.Ed.2d 720 (1985), that a defendant’s subjective expectations of privacy are not protected under the Fourth Amendment when unreasonable or otherwise illegitimate. Consequently, in order to properly allege standing, two conditions precedent must be met before the Court finds that the expectation of privacy is reasonable or justifiable: “(1) an actual or subjective expectation by the defendant; and (2) the expectation is one that ‘society is prepared to recognize as reasonable. Hudson v. Palmer, — U.S. —, —, 104 S.Ct. 3194, 3199, 82 L.Ed.2d 393 (1984) (quoting Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d [576], 579 (1967).” Sarda-Villa, 760 F.2d at 1236.

Although the defendants have satisfied the first condition by asserting an expectation of privacy in the hidden compartment, the Court finds the second condition unsatisfied since

society [is not] prepared to recognize a justifiable expectation of privacy soley on the basis of [defendants] efforts to secret the contraband. Drug smugglers can not assert standing soley on the basis that they hid the drugs well and hoped no one would find them.

Sarda-Villa, 760 F.2d at 1236-37. Likewise, in Lopez, the Eleventh Circuit held that

[a] secret compartment constructed within the confines of the hull of the ship is totally unlike a personal dufflebag or footlocker in terms of the uses to which it may be put, and the expectations of exclusive control to which it gives rise. We cannot imagine that society would recognize a reasonable expectation of privacy in the use of ‘dead space’ in the hull of a ship, sealed with permanent fiberglass and painted to match the surrounding surfaces, for the legitimate storage of personal items.

Lopez, 761 F.2d at 636.

For the aforementioned reasons, the Court finds that standing being absent, it is ORDERED and ADJUDGED that the Government’s unopposed motion for reconsideration be, and it is hereby, GRANTED. Upon this Court’s reconsideration of its order of June 25 in light of Sarda-Villa and Lopez, it is

ORDERED and ADJUDGED that this Court’s order of June 25 be, and it is hereby, VACATED and, accordingly, the Magistrate’s report and recommendation is hereby REVERSED and the defendants’ motion to suppress is hereby DENIED.

DONE and ORDERED in chambers at the United States Courthouse, Federal Courthouse Square, Miami, Florida, this 19th day of July, 1985.