text:
    UNITED STATES of America, Plaintiff, v. Gary G. DYER, Defendant.
    No. 80-CR-105.
    United States District Court, E.D. Wisconsin.
    Oct. 7, 1985.
    Joseph P. Stadtmueller, U.S. Atty. by Jan E. Kearney, Asst. U.S. Atty., Milwaukee, Wis., for plaintiff.
    Stephen E. Kravit, Milwaukee, Wis., for defendant.
   DECISION and ORDER

MYRON. L. GORDON, Senior District Judge.

Gary Dyer is serving a three-year sentence imposed by this court on October 10, 1984. He now moves for vacation of that sentence on various grounds, pursuant to Rule 35(a), Federal Rules of Criminal Procedure. The motion will be denied.

On August 26, 1980, pursuant to a plea agreement, Mr. Dyer pleaded guilty to a one-count information charging him with possession and distribution of cocaine, in violation of 21 U.S.C. § 841. I sentenced him to a three-year prison term, a three-year special parole term, and fined him $5000. Imposition of sentence was suspended, and he was placed on probation for three years.

On August 24, 1983, the United States Probation Department presented me with a Petition for Probation Action, indicating that Mr. Dyer still owed $2,950.00 on his $5,000.00 fine. On August 25, 1983, I authorized the issuance of a summons for judicial review of Mr. Dyer’s probation experience.

On September 1, 1983, Mr. Dyer signed a document requesting that I extend his probation for one year, to August 25, 1984, in order to give him additional time to pay the $2,950.00 balance remaining on his fine. Defendant’s Brief at Exhibit B. This document expressly provided for waiver of Mr. Dyer’s right to a hearing, to notice thereof, and to the assistance of counsel. Fed.R. Crim.P. 32.1(b). Pursuant to Mr. Dyer’s execution of this request and the incorporated waiver, the probation department petitioned for an extension of his probation for one year. On September 14, 1983, I signed an order withdrawing the summons previously issued and formally extending Mr. Dyer’s probation for one year, to August 25, 1984.

On July 5, 1984, before the extended probationary term had expired, Mr. Dyer was convicted of a felony in the United States District Court for the Northern District of Illinois, Case No. 84-CR-94-1. On October 10, 1984, following a hearing held pursuant to Fed.R.Crim.P. 32.1, I found him to be in violation of the conditions of probation imposed on August 26, 1980. Revoking probation, I imposed the sentence originally suspended on August 26, 1980, setting the fine at the $2,950.00 balance and ordering that the three-year prison term run concurrently with the five-year sentence imposed in the Northern District of Illinois.

Mr. Dyer now claims that extension of his probation without a hearing and assistance of counsel was illegal under Fed.R. Crim.P. 32.1(b). He urges the court to utilize its authority under Fed.R.Crim.P. 35(a) to vacate the September 14, 1983, order approving the extension, thus rendering the subsequent October 10, 1984, order revoking probation and imposing sentence null and void. See Yates v. United States, 308 F.2d 737, 738 (10th Cir.1962). Alternatively, he argues that he was denied due process because the extension took place after completion of his original three-year probationary term.

Fed.R.Crim.P. 32.1(b) provides that “A hearing and assistance of counsel are required before the terms or conditions of probation can be modified, unless the relief granted to the probationer upon his request or the court’s own motion is favorable to him.” In United States v. Warden, 705 F.2d 189 (7th Cir.1982), where, as here, the defendant had failed to pay fines imposed as part of his original sentence, the court of appeals found that a one-year extension of the defendant’s probation was not favorable to him within the meaning of Rule 32.1(b). The court thus vacated the district court’s order extending Mr. Warden’s probation because he had not received a hearing and assistance of counsel as required by the rule. Warden, supra, 705 F.2d at 191.

It should be noted that Mr. Warden challenged the extension of his probation under Rule 32.1(b) by direct appeal of the district court’s order. Warden, supra, 705 F.2d at 190. Here, by contrast, Mr. Dyer did not appeal from my September 14, 1983, order extending his probation. An order extending probation is final and appealable. United States v. Miller, 454 F.Supp. 440, 444 (N.D.Ill.1978). The question presented thus concerns Mr. Dyer’s right collaterally to attack the extension of his probation, from which no appeal was taken, by way of a Rule 35(a) motion for correction of an illegal sentence, which may be made at any time. See Yates, supra, 308 F.2d at 738.

An error that may justify relief on direct appeal does not necessarily support a collateral attack on a final judgment. United States v. Addonizio, 442 U.S. 178, 184, 99 S.Ct. 2235, 2239, 60 L.Ed.2d 805 (1979). However, a fundamental defect which inherently results in a complete miscarriage of justice does provide a basis for collateral attack. Addonizio, supra, 442 U.S. at 185, 99 S.Ct. at 2240; Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962). Although it does not explicitly allege such a defect, Mr. Dyer’s motion does raise two issues which, arguably, could support a collateral attack under this stringent standard. The first issue involves the validity of Mr. Dyer’s waiver of his Rule 32.1(b) rights to a hearing and assistance of counsel, and the second his contention that extension of his probation after expiration of the original three-year probationary term was a violation of due process. -

According to Mr. Dyer’s affidavit, his probation officer “advised and urged” him to request a one-year extension of his probation and to sign a waiver of his Rule 32.1(b) rights to a hearing and assistance of counsel, lest it be revoked for failure to pay his fine. Mr. Dyer contends that had he been provided an opportunity to consult counsel, he would have learned that under Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983), his probation could not automatically have been revoked for failure to pay his $5,000.00 fine. Therefore, he concludes, his execution of the waiver was not a “knowing, intelligent act done with sufficient awareness of the relevant • circumstances and likely consequences.” Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970).

It is not disputed that Mr. Dyer executed the waiver. There is no question that Mr. Dyer failed to pay his fine and received notice of his rights to counsel and a hearing. What Mr. Dyer really objects to is that a judge did not conduct a separate inquiry to determine if his waiver was knowingly and intelligently given. Under these circumstances, the issue must be viewed as whether due process requires that a separate judicial hearing be held to determine if the waiver is knowing and voluntary. United States v. Chambliss, 766 F.2d 1520, 1521 (11th Cir.1985).

In Chambliss, the Court of Appeals for the Eleventh Circuit found that due process does not require the defendant to be given any such hearing regarding the modification of his probation conditions. Where, as here, there is no question that the defendant actually executed the waiver, that he had not complied with the terms of his probation within the original time period, and that he was provided with clear notice of the terms of the proposed modification and of his statutory rights to a hearing and assistance of counsel, Chambliss holds that the defendant’s probation conditions can be modified without a hearing and assistance of counsel. Under Chambliss, therefore, Mr. Dyer’s contention that the waiver of his Rule 32.1(b) rights was not sufficiently knowing and voluntary must be rejected.

Mr. Dyer also argues that he was denied due process because his probation was extended after completion of his original three-year probationary term. However, because he failed to discharge his $5,000.00 fine within the prescribed three-year period, and because the probation department likewise initiated proceedings for judicial review of his probation experience within that period, the court retained jurisdiction to order the extension outside the original three-year term. United States v. Miller, 454 F.Supp. 440, 443 (N.D.Ill.1978). The due process claim asserted is thus without merit.

Mr. Dyer’s motion thus fails to allege any error that is sufficiently fundamental to come within the narrowly limited grounds for collateral attack on final judgments and orders. Addonizio, supra, 442 U.S. at 184, 99 S.Ct. at 2239. By accepting the extension, now challenged, without earlier seeking appellate review, Mr. Dyer is foreclosed from attacking it collaterally under Fed.R.Crim.P. 35(a). Cf. United States v. Steiner, 239 F.2d 660, 661 (7 Cir.1957); see also, Yates, supra, 308 F.2d at 738. Consequently, now, almost two years after entry of the extension order, and almost a year after his final revocation hearing, the instant challenge cannot be sustained. Miller, supra, 454 F.Supp. at 444. Mr. Dyer does not contend that he was denied a meaningful opportunity to litigate this issue previously.

Therefore, IT IS ORDERED that the defendant’s motion for correction and vacation of his sentence, pursuant to Rule 35(a), Federal Rules of Criminal Procedure, be and hereby is denied.


source: Caselaw Access Project

author: KEVIN THOMAS DUFFY, District Judge.

license: Public Domain

text:
    CHRISTIAN DIOR-NEW YORK, INC., Plaintiff, v. KORET, INC., Defendant.
    No. 85 Civ. 2645 (KTD).
    United States District Court, S.D. New York.
    Oct. 8, 1985.
    Windels, Marx, Davies & Ives, New York City, for plaintiff; Raymond T. Munsell, Todd B. Sollis, of counsel.
    Spengler, Carlson, Gubar, Brodsky & Frischling, New York City, for defendant; William J. McSherry Jr., of counsel.
   MEMORANDUM & ORDER

KEVIN THOMAS DUFFY, District Judge.

Plaintiff, Christian Dior-New York, Inc. (“Dior”), moves for an order pursuant to Fed.R.Civ.P. 56 granting summary judgment and a permanent injunction enjoining defendant, Koret, Inc. (“Koret”), from infringing upon Dior’s registered trademarks. Koret opposes Dior’s motion and cross-moves pursuant to Fed.R.Civ.P. 60 requesting modification of the preliminary injunction order. For the reasons that follow, plaintiff’s motion is granted.

On or about January 1, 1980, Dior and Koret entered into a license and distributorship agreement (the “Agreement”), which expired by its terms on December 31, 1984 without any option for renewal. Under the Agreement, Koret had the right to manufacture or have manufactured in the United States or Japan leather handbags and beaded bags for sale in the United States and the right to distribute (in the United States) Dior baggage made in France under the Dior name.

Although the Agreement provided that the license would expire on December 31, 1984, it gave Koret a three month grace period after that date to sell any remaining merchandise with a restriction that Koret not manufacture or have on hand more merchandise than it would reasonably expect to sell during that three month period.

This court heard brief testimony from Dior on April 23, 1985 and entered a preliminary injunction prohibiting Koret from disposing of Dior merchandise. Koret has not denied that it used the trademarks after all its rights under the License expired. Koret, however, seeks to avoid summary judgment, pointing to the economic harm which it allegedly will suffer should a permanent injunction issue.

Although it has infringed Dior’s trademarks, Koret contends that it should not be precluded from disposing of the inventory it has on hand, because Dior purportedly misled Koret into believing that Dior might change its mind and renew the License. Koret argues that it relied upon asserted promises by Dior in building up the inventory it now has on hand and, because of this, Dior should be estopped from preventing Koret from disposing of the merchandise.

From early 1983 until early 1985, Koret and Dior frequently communicated to each other in reference to the renewal of the Agreement. Koret maintains that Ms. Nicholas, the president of Dior-New York, repeatedly assured Koret in these correspondences that there would either be a License renewal or an extended sell-off period. Koret asserts that although Ms. Nicholas’ promises were oral, they are confirmed in part by her letters to Koret. The record, however, reflects no such confirmation. Indeed, it establishes that Dior repeatedly informed Koret of Dior’s intention not to renew the License unless new, mutually satisfactory terms could be agreed upon. In a letter to Koret dated April 11, 1983, Dior expressed its doubt as to the “continuation of the license after its expiration due to the unsatisfactory performance of Koret and major differences in styling and marketing philosophies.” Plaintiff Dior’s Exh. A at 1. Dior’s expressed “intention in informing” Koret of “Dior’s views regarding its future relationship with Koret” was “to provide Koret with sufficient time to phase out its Dior operations and pursue new opportunities prior to expiration of the license.” Id. at 2.

In a letter dated May 4, 1983, Koret made several proposals to improve the working relationship between Dior and Koret. Dior responded by stating that Dior was willing to consider a number of proposals, and expressed a desire to meet with Koret in March of 1984 after the proposals had time to yield results. Again by letter, dated March 21, 1984, Dior contacted Koret in reference to the License Agreement. After citing to numerous areas of Koret’s business operations over the 1983 period, Dior expressed its dissatisfaction with the results, and concluded “that we cannot agree at this time to a three-year renewal of our License Agreement dated January 1, 1980, which expires December 31, 1984.”

Koret further contends that Dior-New York knew that Koret’s inventory was normal in size for the industry and could not possibly be sold through normal channels of distribution in a three month period, especially given the seasonal nature of the merchandise. Koret maintains that its excessive inventory was directly attributable to Dior’s request that Koret increase its inventory to anticipate sales that would be guaranteed by a 1,000,000 piece Dior advertising mailer. Koret also points to its investment of $400,000 in its license activities during 1983 and 1984, an additional $30,000 in a national sales promotion, and the ongoing License renewal negotiations as other examples of how Dior misled Koret into believing a renewal was forthcoming.

Defendant’s arguments are unpersuasive. Paragraph 16 of the Agreement is very explicit. It restricted the amount of the inventory Koret could have on hand during the last quarter of 1984 and gave Koret a three month period to sell off that inventory. The intent of this provision, as expressly stated in the Agreement, was to prevent Koret from having a large inventory of Dior articles at the expiration of the Agreement.

In effect Koret is asking this court to reform the Agreement it entered into with Dior so that Koret may be relieved of the economic burden it now experiences. However, Koret has given no adequate justification for such a reformation. Any action taken by Koret in complying with Dior’s request to increase its inventory or its advertising can only be viewed as a unilateral act by Koret in the hope of renewal. Koret was provided with more than sufficient notice that a renewal of the Agreement was not probable. From the evidence on record, it cannot be said that any promise— whether expressed or implied — was made by Dior. Any adverse economic consequences Koret may suffer because of the substantial inventory remaining after the expiration of the Agreement can only be attributed to Koret’s own actions. Plaintiff’s motion for summary judgment is granted and permanent injunction will enter.

Settle order on five (5) days’ notice within fifteen (15) days of the date hereof.

SO ORDERED.

      . Paragraph 16 of the Agreement provides in part:
      Upon expiration or termination of this agreement Licensee shall cease the manufacture of Dior articles but, except in the event of termination for breach, may continue to sell or offer for sale, only through prestigious channels ... for a period of three (3) months, all the Dior Articles set forth on the inventories referred to in subdivisions (1) and (2) of sub-paragraph (b) above ... (Finished goods, merchandise in process of manufacture and uncut piece goods).
      ******
      During the three month period immediately preceding the expiration of the term of this agreement (hereinafter “Final Quarter”) Licensee shall not have in hand (a) an inventory of Dior Articles in excess of the inventory of such Articles which it possessed during the three month period immediately preceding said Final Quarter; or (b) an inventory of uncut piece goods or unfinished Dior Articles and sell in accordance with the terms of this agreement during said Final Quarter. The intent of this provision is to prevent the Licensee’s having a large inventory of Dior Articles at the expiration of this agreement, thereby facilitating the orderly disposition of Licensee’s inventory thereof.

      . I should note that Koret asserts with no explanation that the trademark registration information which was submitted by plaintiff was defective on its face. Koret, however, cites to no specific defect, nor is there any readily apparent.


author: HAIGHT, District Judge:

text:
    FEDERATION OF TURKISH-AMERICAN SOCIETIES, INC., on Behalf of itself, its members and others similarly situated, Plaintiff, v. AMERICAN BROADCASTING COMPANIES, and Columbia Pictures industries, Inc., Defendants.
    No. 84 Civ. 5771-CSH.
    United States District Court, S.D. New York.
    Oct. 10, 1985.
    Melih Dogan, New York City, for plaintiff.

      Pryor, Cashman, Sherman & Flynn, New York City, for defendants; Stephen F. Huff, Tom J. Ferber, of counsel.
   MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge:

At the heart of this litigation lies a motion picture, “Midnight Express.” “Midnight Express” is a motion picture dramatization of the experiences of a real-life American student, Billy Hayes. Hayes was prosecuted by Turkish authorities for attempting to smuggle hashish out of Turkey. The film was produced by defendant Columbia Pictures Industries, Inc. It was first exhibited in movie theaters in the United States in the fall of 1978. Subsequently, defendant American Broadcasting Companies purchased the television broadcast rights to the film from Columbia. ABC exhibited the film on its television network on September 21, 1980; August 14, 1983; and July 22, 1984.

It is perhaps an understatement to say that “Midnight Express” portrays certain Turkish law enforcement and governmental authorities in an unflattering light.

This action was commenced by plaintiff Federation of Turkish-American Societies, Inc. on its own behalf and on behalf of a purported class which, according to ¶ 9 of the complaint, consists of:

"... approximately 300,000 Turkish-Americans residing in the United States whom [sic] have been discriminated against in the showing of the film ‘Midnight Express’ and will continue to suffer recurrent discrimination at the hands of the defendants unless this Court grants the relief requested herein.”

The relief requested, in addition to certification as a class action, includes an injunction against further distribution or showing of the film in the United States, and the award of compensatory and punitive damages.

Plaintiff Federation of Turkish-American Societies, Inc. is alleged to be a not-for-profit New York corporation, serving as an umbrella organization for twenty-three not-for-profit corporations concerned, in one way or another, with Turkish-American individuals, organizations, and affairs.

The complaint contains three counts. The first count invokes the federal civil rights laws, specifically, 42 U.S.C. § 1985(3). The second count invokes the New York Civil Rights law, § 40-c. The third count alleges a common-law claim for “mental and emotional distress and financial injuries to Turkish-Americans in all walks of American society_” Complaint, 1Í 27.

Defendants now move to dismiss the complaint pursuant to Rule 12(b)(6), F.R. Civ.P., for failure to state a claim upon which relief can be granted. Because the motion is accompanied by affidavits and other materials falling outside the pleadings, the Court treats the motion as one for summary judgment pursuant to Rule 56.

Plaintiff opposes the motion, and cross-moves for leave to amend the complaint and conduct certain discovery.

For the reasons which follow, defendants’ motion for summary judgment is granted. Plaintiff’s cross-motion is denied. The complaint will be dismissed.

I.

Motion pictures constitute a form of speech protected by the First Amendment to the United States Constitution. Schad v. Borough of Mount Ephraim, 452 U.S. 61, 66, 101 S.Ct. 2176, 2181, 68 L.Ed.2d 671 (1981); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952); United States v. A Motion Picture Film Entitled “I am Curious-Yellow,” 404 F.2d 196 (2d Cir.1968); Natco Theaters, Inc. v. Ratner, 463 F.Supp. 1124, 1128 (S.D.N.Y.1979); Man v. Warner Bros. Inc., 317 F.Supp. 50, 52 (S.D.N.Y.1970).

In the circumstances of the case at bar, the First Amendment protection afforded to “Midnight Express” is absolute, and forecloses any conceivable theory of liability available to the plaintiff or to the class for which the plaintiff attempts to speak.

That is because the motion picture, either in its conception and original exhibition by defendant Columbia Pictures, or in its subsequent exhibition by defendant ABC, is uncomplicated by the presence of any of the limited factors which would abrogate the constitutional protection afforded to the free dissemination of ideas.

That reflection brings me immediately to the one case upon which plaintiff relies in resisting defendants’ appeal to a First Amendment protection. That case, Vietnamese Fishermen’s Association v. The Knights of the Ku Klux Klan, 518 F.Supp. 993 (S.D.Tex.1981), final judgment reported at 543 F.Supp. 198 (S.D.Tex.1982), is characterized by plaintiff in its opposing brief at 4 as authority which “breaks through” any barrier erected by the First Amendment “and protects the plaintiffs rights to be free from ethnic discrimination.”

The facts and rationale of the Vietnamese Fishermen’s case are entirely inappo-site. A group of Gulf fishermen, disturbed by the competition generated by Vietnamese refugees fishing in Gulf waters, embarked upon a conspiracy of physical intimidation of the Vietnamese. The strategems relies upon included boat burning; cross burnings; threats of violence against Vietnamese fishermen, their families and friends; and “boat rides” with guns and small cannons, prominently displayed and, according to the district judge’s findings, intended to frighten Vietnamese fishermen in the Gulf, and to interfere with their fishing operations. The district court, not surprisingly, enjoined such activities. At one point, the defendants sought First Amendment protection for their conduct. The district court, rejecting that contention, held that public shows of force did not constitute “speech” within the meaning of the First Amendment; and that, even if such military operations could be so characterized, “defendants still would not be able to avail themselves of ‘First Amendment protection,’ in view of the long-recognized proposition that ‘fighting words,’ which ‘by their very utterance inflict injury or tend to excite an immediate breach of the peace,’ fall outside the ambit of the First Amendment.” Vietnamese Fishermen’s Association, supra, at 543 F.Supp. 208, citing and quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942).

In the case at bar, neither the conception nor the subsequent exhibition of the film “Midnight Express” was or is accompanied by such immediate incitements to violence as infected the conduct of the defendants in the Vietnamese Fishermen’s Association litigation. Under the cases cited supra, the protection afforded to defendants by the First Amendment is absolute.

That is so, even though plaintiff and the class which it purports to represent may understandably find certain aspects of the film personally offensive. The First Amendment protects the offensive utterance fully as much as it protects the bland or uncontroversial. In a free society, it cannot be otherwise. Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971); Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1897, 23 L.Ed.2d 430 (1969); Collin v. Smith, 578 F.2d 1197 (7th Cir.), cert, denied, 439 U.S. 916, 99 S.Ct. 291, 58 L.Ed.2d 264 (1978).

II.

While plaintiff alleges other theories of recovery, I need not reach them because, for the reasons stated, the First Amendment absolutely protects defendants from liability. It is for this reason that I deny plaintiff’s cross-motion to amend its complaint, and for additional discovery. The contentions put forward in support of the cross-motion do not suggest that the protection afforded by the First Amendment could be breached, even if the amendment (or the additional discovery) were permitted.

III.

It is impossible for the Court not to sympathize with the sensibilities of the Turkish-American citizens, whose emotions underlie this action. The United States is justifiably proud of its Turkish-American citizens, whose presence and contributions to our national fabric bear witness, as in the case of so many other of our citizens who have left the old world for a new one, to the vitality of the American dream. Turkish-Americans are proud of their heritage, and understandably resent utterances which may be regarded as disparaging. But they must recall that one of the freedoms which, by their exodus they have obtained for themselves and their children, is that very freedom of speech which, in the circumstances of this case, entitles the defendants to summary judgment dismissing this complaint.

CONCLUSION

The Clerk of the Court is directed to enter summary judgment in favor of defendants and against plaintiff, dismissing the complaint with prejudice.

I decline to certify a class.

In the exercise of my discretion, the dismissal of the complaint will be without costs. The parties will bear their own attorneys’ fees.

It is SO ORDERED.


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

text:
    Christopher WARNER, Plaintiff, v. COUNTY OF WASHOE, a Political subdivision of the State of Nevada, Yince Swinney, individually and in his official capacity as the Sheriff of Washoe County; Belie Williams, James Lillard, James King, Gene McDowell and Dick Ritter, individually and in their official capacity as Washoe County Commissioners, Defendants.
    No. CV-R-84-315-ECR.
    United States District Court, D. Nevada.
    Oct. 15, 1985.
    Lawrence J. Semenza, Reno, Nev., for plaintiff.
    Erickson, Thorpe, Swainston & Cobb by William G. Cobb, Reno, Nev., for defendants.
   ORDER

EDWARD C. REED, Jr., District Judge.

Plaintiff Christopher Warner filed a complaint on July 30, 1984, claiming damages and declaratory relief under 42 U.S.C. § 1983. Warner alleges that while in the custody of the Washoe County Jail, fellow prisoners brutally assaulted and raped him. Defendants Belie Williams, James Lillard, James King, Gene McDowell and Dick Rit-ter (Commissioners), all Washoe County Commissioners at the time of the alleged assault, move this Court to dismiss the complaint for failure to state a claim upon which relief can be granted. Commissioners argue that there is no basis for liability against them. A motion to dismiss a complaint requires the Court to determine whether the claim as alleged, without regard to the weight of the evidence, and assuming as true all facts pleaded, states a claim for which relief can be granted. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957).

There are two essential elements to a 42 U.S.C. § 1983 action: (1) the plaintiff must allege and prove that the conduct complained of was committed by a person acting under color of state law; and (2) that this conduct deprived the plaintiff of rights, privileges, or immunities secured by the constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981).

The thrust of Warner’s § 1983 claim against the Commissioners is that not only does NRS § 211.020 impose a duty to inquire every three months into the treatment and condition of the prisoners, but that the Commissioners had previous knowledge of sexual assaults occurring in the jail. Warner argues that the Commissioners breached their duties and thus, failed to prevent the alleged assault on Warner. The issue before this Court is whether the Commissioners owed a constitutional duty to Warner and, if so, whether the alleged breach of this duty created a foreseeable risk of Warner’s assault.

Warner had a “constitutional right to be reasonably protected from ... sexual assault from his fellow inmates ...” Woodhous v. Virginia, 487 F.2d 889, 890 (4th Cir.1973) (per curiam). Nevertheless, not every injury in which a state official plays a part is actionable under § 1983. Martinez v. California, 444 U.S. 277, 285, 100 S.Ct. 553, 559, 62 L.Ed.2d 481 (1980).

Liability cannot be imposed on the Commissioners on a theory of vicarious liability. See Monell v. New York Department of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). The test to determine liability is whether: (1) control or direction is exercised by a supervisory officer and (2) there is either personal participation in some form (giving orders, setting policy that led to violation, or a failure to supervise) thereby causing foreseeable harm to a constitutional right. There must be an affirmative link between misconduct and superiors. Rizzo v. Goode, 423 U.S. 362, 376-377, 96 S.Ct. 598, 606-607, 46 L.Ed.2d 561 (1976). A failure to supervise can occur in a variety of situations. For example, if a superior fails to perform an explicit statutory duty and constitutional injury occurs, there may be liability. See Howard v. Fortenberry, 723 F.2d 1206, 1213-1214 (5th Cir.1984). In Howard, defendants, regional and parish sanitarians, were charged with a statutory duty to inspect a Prison Farm and failed to inspect and see a “hot box” used to discipline prisoners which resulted in the prisoners’ deaths. The court found that the failure to inspect may have had a causal connection to the deaths and liability was possible. Id. “A person ‘subjects’ another to the deprivation of a constitutional right ... if he does an affirmative act, participates in another’s affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made ... The requisite causal connection can be established ... by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury.” Johnson v. Duffy, 588 F.2d 740, 743-744 (9th Cir.1978).

We find that NRS § 211.020 may impose a duty on the Commissioners to the prisoners. The statute charges county commissioners with the duty to inquire into the treatment and condition of the prisoners. The statute is silent on the issue whether the duty runs directly to the prisoners. Contra Donaghe v. County of Washoe, No. CV-R-82-337-BRT (D.Nev. April 11, 1983).

Warner also alleges that the Commissioners had knowledge of previous assaults in the Washoe County Jail. The Court finds that the Commissioners, by virtue of both NRS § 211.020 and their alleged knowledge of several prior sexual assaults, may have a custodial relationship with respect to the prisoners of Washoe County Jail. See Fox v. Custis, 712 F.2d 84, 88 (4th Cir.1983). There exists at this time a triable issue as to whether the Commissioners lack of inquiry, as mandated by statute, created a foreseeable risk of Warner’s alleged assault. See Howard v. Fortenberry, 723 F.2d at 1213-1214; see also Hirst v. Gertzen, 676 F.2d 1252, 1263 (9th Cir.1982) (when an inmate in the custody of a county institution was found dead, there existed a triable issue as to whether the county’s lack of care in hiring and supervising their deputies was negligence creating a foreseeable risk of harm).

The Commissioners are charged with some degree of supervision over the Wash-oe County Jail. Warner’s complaint alleges specific knowledge of the Commissioners as to prior sexual assaults. Thus, based on the complaint, Warner states a claim for which relief may be granted and the Commissioners’ motion to dismiss is premature.

IT IS, THEREFORE HEREBY ORDERED that the motion to dismiss is DENIED.

      . Former County Commissioner James Underwood, originally named in the complaint and joining in the motion before this Court was dismissed by this Court based upon stipulation of parties on September 18, 1984 (document #8).

      . The Complaint, in a typographical error, refers to NRS § 211.010. We assume, as did the Commissioners in their motion that Warner is relying on NRS § 211.020.

      . The Commissioners have been charged by NRS § 211.020 with supervisory duties. The statute provides:
      'll 1.020 Duties of county commissioners: Supervision: inspection; precautions. The board of county commissioners:
      1. Is responsible for building, inspecting and repairing any county or branch county jail located in its county.
      2. Once every 3 months, shall inquire into the security of the jail and the treatment and condition of the prisoners.
      3. Shall take all necessary precautions against escape, sickness or infection."


author: STEVENS, District Judge.

text:
    John PEELE, Plaintiff, v. KIDDER, PEABODY & COMPANY, INC. and Richard C. Jensen, Jr., Defendants.
    No. 85-0916-CV-W-8.
    United States District Court, W.D. Missouri, W.D.
    Oct. 16, 1985.

      Robert A. Kumin, Kansas City, Mo., for plaintiff.
    Mark S. Foster, Stinson, Mag & Fizzell, Kansas City, Mo., for defendants.
   MEMORANDUM AND ORDER

STEVENS, District Judge.

Plaintiff John Peele sues defendants Kidder, Peabody & Company and its employee-stockbroker, Richard C. Jensen, Jr., in five counts claiming various state and federal securities law violations and fraud. Counts I, III, and IV of plaintiffs complaint allege violations of sections 10(b) and 15(c) of the Securities Exchange Act of 1934 (hereinafter “the 1934 Act”), 15 U.S.C. § 78a et seq. Count II alleges violations of the Missouri Uniform Securities Act, Mo.Rev.Stat. § 409.411. Count V alleges common law fraud.

Before the court is defendants’ motion to compel arbitration of all of the plaintiffs claims and to stay proceedings pending the completion of that arbitration. In October 1982, plaintiff opened an account with the defendants, Kidder, Peabody and executed an agreement that “[a]ny controversy arising out of or relating to accounts of or transactions with or for the undersigned or to this agreement or the breach thereof shall be settled by arbitration in accordance with the rules of either the American Arbitration Association or the New York Stock Exchange as the undersigned may elect.” In January 1983, when plaintiff opened an options account with the defendants, he executed a similar agreement to submit any disputes to arbitration.

Defendants now seek to enforce these arbitration agreements pursuant to the Federal Arbitration Act (hereinafter the “Act”), 9 U.S.C. §§ 1-14. Section 4 of the Act authorizes either of the parties to an arbitration agreement to seek enforcement of its provisions in a federal district court. Section 3 of the Act provides for a stay of proceedings in any district court if the same issue is arbitrable under the parties’ agreement.

Plaintiff alleges that this court should refuse to give effect to the parties’ agreements, including the arbitration clauses, because they are adhesion contracts. The gravamen of plaintiff’s argument is that the clause is unenforceable because it was not bargained for by the parties in an arms length transaction. Rather, the contracts were standard form agreements used industry-wide.

The court disagrees with plaintiff. While it is true that plaintiff signed a form contract widely used in the industry, there is absolutely no evidence that the terms were fundamentally unfair or overreaching. The arbitration provision does not place the plaintiff in such an inferior position as to require this court to rescind or rewrite the parties’ contracts. See Surman v. Merrill Lynch, Pierce, Fenner & Smith, 733 F.2d 59, 61 n. 2 (8th Cir.1984); Speck v. Oppenheimer & Co., 583 F.Supp. 325, 328 n. 4 (W.D.Mo.1984).

The court’s inquiry does not stop here. Although the arbitration agreement is enforceable, there is still a question as to whether all of plaintiffs claims — especially the claims brought under the 1934 Act— may be arbitrated.

A recent United States Supreme Court decision, Dean Witter Reynolds Inc. v. Byrd, — U.S. —, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985), held that the district courts must compel arbitration of pendent state-law claims even if those claims arise from the same set of factual occurrences as the federal claim(s) before the court. Id. 105 S.Ct. at 1241. The Byrd decision essentially adopts the Eighth Circuit position articulated in Surman v. Merrill Lynch, supra at 62. Accordingly, this court must compel arbitration of the state-law claims asserted in Count II and Count V of plaintiff's complaint.

The defendants argue that this court should also compel arbitration of the 1934 Act claims. The Supreme Court in Byrd expressly refused to reach this issue. In a footnote, however, it did question the lower federal courts’ (including the Eighth Circuit’s) widespread practice of extending Wilko and refusing to compel arbitration of claims brought under the 1934 Act. The Court also reiterated that, years earlier, in Scherk v. Alberto-Culver Co., 417 U.S. 506, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974), it had questioned the applicability of Wilko to claims arising under section 10(b) of the 1934 Act because the provisions of the 1933 and 1934 Acts differ and because section 10(b) of the 1934 Act, unlike section 12(2) of the 1933 Act, does not create a private right of action. See Scherk at 512-13, 94 S.Ct. at 2453-54.

Since the Byrd decision, the federal district courts have failed to construe uniformly the Supreme Court’s language as to the arbitrability of claims brought under the 1934 Act. The majority of federal district courts, including the lower Byrd court on remand, have interpreted the Court to disapprove of their prior refusal to compel arbitration and have now begun to compel the arbitration of 1934 Act claims. See Byrd v. Dean Witter Reynolds, Inc., Fed. Sec.L.Rep. (CCH) ¶ 92,225 (S.D.Cal. July 8, 1985), Niven v. Dean Witter Reynolds, Inc., [1984-1985] Fed.Sec.L.Rep. (CCH) ¶ 92,059 (M.D.Fla. March 28, 1985), Finn v. Davis, 610 F.Supp. 1079 (S.D.Fla.1985), Meyer v. Schmacker, No. 83-1356 C(5) (E.D.Mo. May 3, 1985), Houlihan v. Schmacker, No. 83-159 C(5) (E.D.Mo. May 3, 1985). Some courts, however, have held that they will continue to refuse to compel arbitration of the 1934 Act claims until the Supreme Court holds that their practice is incorrect. See Webb v. R. Rowland & Co., 613 F.Supp. 1123 (E.D.Mo.1985); Rojas Cancanon v. Smith Barney, Harris Upham & Co., 612 F.Supp. 996 (S.D.Fla.1985).

This court agrees with those district courts that have held that Byrd and Scherk, together with the federal policy of favoring arbitration, see Moses H. Cone Memorial Hosp. v. Mercury Const. Corp., 460 U.S. 1, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983), indicate that implied causes of action arising under the 1934 Act are arbi-trable. Accordingly, it is

ORDERED that defendants’ motion to compel arbitration of all of plaintiff’s claims, including Counts I, III, and IV, is granted. It is further

ORDERED that any further disposition in this court is stayed pending arbitration of this matter. It is further

ORDERED that defendants shall keep this court informed as to the progress of the arbitration proceeding.

      . In Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953), the Supreme Court held that pre-dispute agreements to arbitrate claims arising under section 12(2) of the Securities Act of 1933, 15 U.S.C. § 77/(2), were not enforceable.


author: ROBERT D. POTTER, Chief Judge.

text:
    Calvin L. MARTIN and Irene Martin, Plaintiffs, v. WORTH CHEMICAL CORPORATION and P.B. & S. Chemical Company, Defendants.
    No. C-C-84-0490-P.
    United States District Court, W.D. North Carolina, Charlotte Division.
    Oct. 18, 1985.
    J. Kevin Holmes, Steinberg, Levkoff, Spitz & Goldberg, Charleston, S.C., John G. Plumides, Plumides, Plumides & Shuster, Charlotte, N.C., for plaintiffs.
    Rodney Dean, Golding, Crews, Meekins, Gordon & Gray, Thomas A. Lockhart, Can-sler & Lockhart, Charlotte, N.C., for defendants.
   ORDER

ROBERT D. POTTER, Chief Judge.

THIS MATTER was heard before the undersigned on September 9, 1985 at Charlotte, North Carolina on the motion of Defendant P.B. & S. Chemical Company (“P.B. & S.”) for summary judgment as to all of the Plaintiffs’ claims. The Defendant was represented by Rodney Dean and Thomas A. Lockhart, Attorneys at Law. The Plaintiffs were represented by J. Kevin Holmes and John G. Plumides, Attorneys at Law.

The Plaintiffs instituted this action against P.B. & S. and Worth Chemical Corporation for personal injuries sustained by the Plaintiff Calvin Martin as a result of the Defendant’s alleged negligence and P.B. & S.’s alleged breach of an implied warranty of merchantability, and for the Plaintiff Irene Martin’s loss of consortium allegedly resulting from the physical injuries sustained by her husband, Calvin Martin. Since Mrs. Martin’s claim is wholly derivative and may be maintained only if her husband’s personal injury action survives this summary judgment motion, see Southerland v. Kapp, 59 N.C.App. 94, 95, 295 S.E.2d 602, 603 (1982), the Court will refer hereafter only to the Plaintiff Calvin Martin and his claims.

On August 19, 1981, P.B. & S., a Kentucky corporation in the business of distributing commodity chemicals, shipped a carbon steel cylinder containing chlorine to Worth Chemical Corporation in Greensboro, North Carolina. Worth in turn shipped the cylinder to its plant in Charlotte, North Carolina. On the morning of September 14, 1981 a leak was discovered in the cylinder. The Plaintiff, an independent trucker, arrived at Worth’s Charlotte plant at about 8:00 a.m. on September 14, 1981 to deliver a load of goods. While waiting for his truck to be unloaded, the Plaintiff did some paperwork and then fell asleep in the cab of his truck. He was awakened by nausea and a burning in his eyes and nose that resulted from exposure to the chlorine gas that had leaked out of the cylinder supplied by P.B. & S.

The Plaintiff alleges that P.B. & S. was negligent in the manufacture and inspection of the cylinder that it shipped to Worth Chemical Corporation; in its failure to give Worth adequate warnings and instructions in the event of a leak; in its failure to hire, assign and train an adequate number of personnel and to provide proper equipment to guard against exposure to the chemical; and in its handling of the leaking cylinder.

Fed.R.Civ.P. 56 states that the Court may grant summary judgment if there is not a genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The evidence presented to the Court, including any legitimate inference therefrom, is to be viewed in the light most favorable to the opposing party. Tyndall v. United States, 295 F.Supp. 448, 451 (E.D.N.C.1969). Summary judgment should be allowed only where it is “quite clear what the truth is” Sartor v. Arkansas Natural Gas Co., 321 U.S. 620, 627, 64 S.Ct. 724, 728, 88 L.Ed. 967 (1944) and where “inquiry into the facts is not desirable to clarify the application of the law.” Pierce v. Ford Motor Co., 190 F.2d 910, 915 (4th Cir.), cert. denied, 342 U.S. 887, 72 S.Ct. 178, 96 L.Ed. 666 (1951).

The Court notes that summary judgment is rarely a proper method by which federal courts should dispose of negligence cases, since material facts are usually in dispute in such actions. Tyndall v. United States, 295 F.Supp. 448, 451 (E.D.N.C.1969). Even if there is no dispute as to the facts, there is almost always a dispute for the jury to decide as to whether the conduct in question meets the reasonable man standard. See id.; Pierce v. Ford Motor Co., supra, 190 F.2d at 915; 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure: Civil 2d § 2729 (1983).

Applying these standards and observations to the evidence before the Court, the Court is of the opinion that summary judgment should be denied as to the Plaintiff’s first three allegations of negligence as noted above but should be granted as to the Plaintiff’s allegation that P.B. & S. was negligent in handling the leaking cylinder. P.B. & S. had no physical contact with the cylinder after the leak actually developed; therefore, there is no issue of fact regarding any possible negligence by P.B. & S. in “handling” it since it did not “handle” the cylinder while it was leaking at all.

With regard to the Plaintiff’s other claims of negligence, summary judgment would be inappropriate. Further inquiry into the facts and into the standards of care and procedure in the chemical industry would be helpful in determining the legal consequences of P.B. & S.’s actions or omissions to act. For example, inquiry is needed into the sufficiency of P.B. & S.’s personnel and the equipment available to guard against or deal with hazardous chemicals and accidents.

Likewise, the affidavit of the Plaintiff’s expert raises a question as to whether the steps taken by P.B. & S. to instruct, warn or assist Worth Chemical in the event of a chemical leak such as this one were adequate in light of the practices of other chemical companies. The depositions before the Court also evidence a dispute as to whether it was a P.B. & S. employee or someone at Jones Chemical Company, another chlorine distributor located in Charlotte, who instructed Worth Chemical to place the leaking cylinder in a liquid caustic soda solution. As noted by the Plaintiff’s expert, such an instruction was in direct conflict with the recommendations of the Chlorine Institute in its 1980 Emergency Response Guidebook.

The Plaintiffs expert states that he would be willing to testify that the cylinder could have left P.B. & S.’s plant with a certain defect or condition that would have developed into or resulted in a leak during the time interval between its shipment from P.B. & S. to Worth Chemical Corporation and the actual discovery of the leak. P.B. & S. claims that this expert’s opinion does not give rise to a triable issue concerning whether P.B. & S. was negligent in its manufacture or inspection of the cylinder because it is only conjecture as to what “may” have happened. The Court does not agree; as the Fourth Circuit has noted,

[e]ven in cases where the judge is of the opinion that he will have to direct a verdict for one party or the other on the issues that have been raised, he should ordinarily hear the evidence and direct the verdict rather than attempt to try the case in advance on a motion for summary judgment....

Pierce v. Ford Motor Co., supra, 190 F.2d at 915. Further inquiry into the facts, including P.B. & S.’s actual inspection procedure with respect to that cylinder, would be helpful in determining what caused the leak and whether the condition giving rise to the leak existed at the time the cylinder left P.B. & S.

In addition to his negligence claims, the Plaintiff alleges that P.B. & S. breached an implied warranty of merchantability that the chlorine gas was adequately contained and packaged and would pass without objection in the trade. The possibility posited by the Plaintiff’s expert that the condition giving rise to the leak in the cylinder could have existed at the time the cylinder of chlorine left P.B. & S. defeats P.B. & S.’s argument that there is no issue of material fact as to this claim.

P.B. & S. also asserts, however, that the Plaintiff cannot maintain a claim for breach of implied warranty of merchantability because there is no privity of contract between the Plaintiff and P.B. & S. and none of the statutory exceptions to the privity requirement enumerated in N.C.Gen.Stat. § 99B-2(b) is applicable. The Plaintiff’s ability to maintain this claim depends on whether he falls within the privity exception for a “guest of the buyer.” As P.B. & S. has noted, the word “guest” is not defined in the 1979 North Carolina Product Liability Act, nor has it been judicially construed by any North Carolina court in a reported decision to date.

P.B. & S.’s briefing on whether an independent trucker making a delivery on the premises of the buyer of allegedly defective goods can be considered a “guest of the buyer” has not been particularly helpful or persuasive; the Plaintiff’s briefing on this issue is non-existent. Before ruling on the summary judgment motion as to the Plaintiff’s breach of implied warranty claim, the Court will allow the parties to present legal authority, by way of analogy to other areas of North Carolina law dealing in the “guests” or by comparison to similar statutes in other states, for their positions concerning whether the Plaintiff qualifies as a guest of Worth Chemical.

Finally, the Court has been advised by the Plaintiffs’ counsel that the Plaintiffs waive their claims for punitive damages. Therefore, P.B. & S.’s motion for summary judgment as to the claims for punitive damages should be granted.

The Defendant is not entitled to summary judgment as to the Plaintiff Irene Martin’s claim for loss of consortium, since the Court is not dismissing all the claims of the Plaintiff Calvin Martin.

IT IS, THEREFORE, ORDERED that

(1) The Defendant P.B. & S.’s motion for summary judgment is GRANTED IN PART and DENIED IN PART; and

(2) The parties are directed to file supplemental legal memoranda supporting their positions on whether the Plaintiff qualifies as a “guest of the buyer” under N.C.Gen.Stat. § 99B-2(b) on or before October 28, 1985.


author: McCURN, District Judge.

text:
    Thomas McHALE, Plaintiff, v. CORNELL UNIVERSITY and the National Collegiate Athletic Association, Defendants.
    No. 85-CV-944.
    United States District Court, N.D. New York.
    Oct. 18, 1985.
    Schulte, Roth & Zabel, New York City, for plaintiff; Stacey J. Moritz, of counsel.
    Buyoucos, Barney, Grossman & Roth, Ithaca, N.Y., for plaintiff; Nelson E. Roth, of counsel.
    Gilbert, Segall & Young, New York City, Lombardi, Devorsetz, Stinziano & Smith, Syracuse, N.Y., for defendant NCAA; Eli-hu Inselbuch, Sidney Devorsetz, of counsel.
    Thomas Mead Santoro, Ithaca, N.Y., for defendant Cornell.
   MEMORANDUM-DECISION AND ORDER

McCURN, District Judge.

Plaintiff Thomas McHale has brought this action against Cornell University (Cornell) and the National Collegiate Athletic Association (NCAA), seeking to enjoin the defendants from denying him eligibility to play intercollegiate football for Cornell during the Fall 1985 season. The complaint alleges that the NCAA’s application of its eligibility rules, specifically Bylaw 5 — 1—(j)— (7) (the transfer rule), violates the Equal Protection Clause of the Fourteenth Amendment, the Due Process Clause of the Fourteenth Amendment, and other constitutional and contractual rights of the plaintiff. A hearing was held on September 26, 1985, and a temporary restraining order was issued. Based on the evidence presented at that time and further submissions by the parties, the court makes the following findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure.

Plaintiff is presently enrolled at Cornell and is in good academic standing. Defendant NCAA is a voluntary unincorporated association comprised of more than 900 colleges and universities. Cornell, as a member of the NCAA’s Division I, must follow the eligibility rules that the NCAA has established for student athletes. These rules include Bylaw 5-l-(j)-(7) which provides that a student who transfers to a Division I school must complete one year at the new institution before the student can establish eligibility to compete in intercollegiate athletics.

Plaintiff attended the University of Maryland during the 1982-83 and 1983-84 academic years where he participated in two years of college football. He withdrew from Maryland in the summer of 1984 and transferred to Cornell in January 1985 where he is now continuing his studies. Cornell did not recruit plaintiff and does not offer athletic scholarships.

Plaintiff contends that the NCAA’s transfer rule should not apply to him because he was not recruited, he transferred to Cornell for academic reasons alone, and that therefore his competing will not subvert the purposes of the rule. Cornell in support of the plaintiff’s position inquired of the NCAA as to plaintiff’s football eligibility this season. The NCAA advised Cornell that the transfer rule prohibits plaintiff’s participation this season and that plaintiff does not qualify for a waiver of the residency requirement under NCAA Bylaw 5-1-m. Plaintiff now seeks a preliminary injunction enjoining defendants from prohibiting his playing football this season.

DISCUSSION

In this Circuit a preliminary injunction will issue upon a showing that irreparable injury is likely to occur if such relief is not granted and a demonstration of either (1) a likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation coupled with a balance of hardships tipping decidedly in the mov-ant’s favor. Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979) (per curiam). In the present action, a denial of the preliminary injunction will effectively prevent the plaintiff from competing in intercollegiate athletics this season. Moreover, application of the NCAA rules together with the Ivy League rules may also render the plaintiff ineligible to compete in 1987. As a result, the plaintiffs participation in college football may well be restricted to three years. This court recognizes the important role of athletics in adolescent development and education and finds, therefore, that plaintiff has established a likelihood of irreparable injury. See Kampmeier v. Nyquist, 553 F.2d 296 (2d Cir.1977); see also Holmes v. NCAA and Iona College, No. 83 Civ. 8019 (S.D.N.Y. Nov. 30, 1983) (finding likelihood of irreparable harm where application of NCAA Bylaw 5 — 1—(j)—(7) would prevent plaintiff from playing hockey for Iona College during his junior year). The propriety of a preliminary injunction here, therefore, must rise or fall on the merits of the plaintiff’s claims.

42 U.S.C. § 1983 provides a remedy for deprivations of federally protected rights when caused by persons acting under color of state law. Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). A likelihood of success on the merits or sufficiently serious questions going to the merits to make them a fair ground for litigation on the issue of state action is an essential element for the granting of preliminary injunctive relief against either or both of the defendants herein. The court finds that the plaintiff has failed to meet this burden.

Although courts in the past have found that the NCAA’s actions constitute state action, e.g., Howard University v. NCAA, 510 F.2d 213 (D.C.Cir.1975) and Parish v. NCAA, 506 F.2d 1028 (5th Cir.1975), the Supreme Court’s decisions in Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982) and Blum v. Yaretsky, 457 U.S. 991,102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) now mandate a different decision.

In order to succeed on the merits as to the NCAA, plaintiff must demonstrate (1) that the state supported members of the NCAA exercised coercive power or provided such significant encouragement, either overt or covert, in promulgating Bylaw 5 — 1—(j)—(7), that the choice must be deemed to be that of the state; or (2) that the NCAA, in applying its rules, has performed a public function which has traditionally been the exclusive prerogative of the state. Rendell-Baker, 457 U.S. at 840-42, 102 S.Ct. at 2770-72; Blum, 457 U.S. at 1004-5, 102 S.Ct. at 2785-86. The court finds that the plaintiff has not shown that the state supported members of the NCAA convention voted together in opposition to the wishes of the private members or otherwise controlled the decision to adopt the transfer rule. See Arlosoroff v. NCAA, 746 F.2d 1019 (4th Cir.1984); see also Gra- sek v. Mauceri, 582 F.2d 203 (2d Cir.1978), cert. denied, 439 U.S. 1129, 99 S.Ct. 1048, 59 L.Ed.2d 91 (1979) (finding no state action where Legal Aid Society which received substantial government funding made independent decision to discharge attorney). The fact that approximately one-half of the NCAA’s members are state-supported institutions, which fact undoubtedly generates revenue for the NCAA does not alone establish state action. Under Ren-dell-Baker and Blum, state regulation and subsidization of an institution alone will not convert private action into state action. Moreover, the plaintiff has failed to demonstrate that the NCAA performs a function “traditionally, the exclusive prerogative of the State.” Rendell-Baker, 457 U.S. at 842, 102 S.Ct. at 2772; Blum, 457 U.S. at 1001, 102 S.Ct. at 2784; Jackson v. Metropolitan Edison Co., 419 U.S. 345, 353, 95 S.Ct. 449, 454, 42 L.Ed.2d 477 (1974). Although the NCAA may perform a public function in overseeing the nation’s intercollegiate athletics, it remains a private institution. Regulation of intercollegiate sports cannot fairly be said to be traditionally and exclusively a state function. Constitutional standards are only invoked where it can be shown that the state is responsible for the specific conduct of which the plaintiff complains. Blum, 457 U.S. at 1004, 102 S.Ct. at 2785.

Based on the evidence presented, the court finds that plaintiff has failed to demonstrate that the NCAA’s actions are reasonably attributable to the state. See Arlosoroff v. NCAA, 746 F.2d 1019; see also Ponce v. Basketball Feder. of Puerto Rico, 760 F.2d 375 (1st Cir.1985). In addition, compliance by Cornell University, a private education corporation, with the NCAA rule does not constitute state action. The court finds that the plaintiff has not established the level of state-private co-operation required under Rendell-Baker and Blum. Plaintiff’s allegations of government regulation and financial assistance do not support a finding of state action on the part of Cornell nor does their contention that the university performs a public function. See Rendell-Baker, 457 U.S. 830, 102 S.Ct. at 2765; Blum, 457 U.S. 991, 102 S.Ct. at 2779; see also Dukes v. Brandeis University, No. 83-CV-465 (N.D.N.Y. Nov. 1, 1983); Weise v. Syracuse University, 553 F.Supp. 675 (N.D.N.Y.1982).

Accordingly, the plaintiff, having not met his burden of showing a likelihood of success on the merits or sufficiently serious question going to the merits to make them a fair ground for litigation, is denied preliminary injunctive relief herein.

IT IS SO ORDERED.

      . The complaint also alleged that application of NCAA Bylaw 5 — 1—(j)—(7) unduly burdened plaintiffs fundamental right to travel thereby depriving him of rights guaranteed by the Privileges and Immunities Clause of Article IV and the Fourteenth Amendment. Plaintiff also advanced theories based upon breach of contract by Cornell and tortious interference with contractual rights by NCAA.

      . NCAA Bylaw Il-l-(d) provides in relevant part:
      A member of Division I shall conduct its regular-season competition under eligibility rules at least as stringent as those provisions of Bylaw 5 applicable to members of Division I.

      . NCAA Bylaw 5-l-(j)-(7) provides in relevant part:
      A transfer student from a four-year institution shall not be eligible for any NCAA championship until the student has fulfilled a residence requirement of one full academic year (two full semesters or three full quarters), and one full calendar year has elapsed from the first regular registration and attendance date at the certifying Division I or Division II institution. At a Division III institution, eligibility is not permitted for one calendar year from the student’s official withdrawal date from the previous institution.
      (i) If the first day of classes of the regular academic term (semester or quarter) in which the transfer student would become eligible at the certifying institution is earlier than the completion of the one-calendar-year requirement, and if the student has fulfilled the one-academic-year requirement, then the student shall be eligible on that first day of classes.
      (ii) If the date of the first scheduled intercollegiate contest falls earlier (between semesters) than the first day of classes of the regular academic term (semester or quarter) in which the student would become eligible, and if the student has fulfilled the one-academic-year requirement, then the student shall be eligible on that playing date.

      .The NCAA suggested three purposes of the transfer rule: (1) to prevent transfers solely for athletic reasons, (2) to avoid exploitation of student athletes, and (3) to allow transfer students time to adjust to their new environment.

      . Cornell is also a member of the Ivy League. Part II, Section 3, Rule 6, NOTE 2 of the rules promulgated by the Ivy League provides that student athletes are eligible for athletic competition for only four years from the date of their initial participation. The applicable rule reads as follows:
      Years of Competition
      a. A student shall not represent an institution in intercollegiate athletic competition;
      (1) for more than one freshman year.
      (2) for more than three varsity years, except that freshman may compete on varsity teams other than in crew and football.
      NOTE 1: This Committee unanimously agreed that students who leave college in the middle of an academic year for legitimate reasons should not be penalized.
      NOTE 2: Ninth Term and Five Year Students. All students are expected to use their years of eligibility in a particular sport during the first four seasons of that sport (even though they are formally enrolled in a five year program) provided the student is enrolled as a full-time student during each of those seasons. All requests for eligibility in a fifth season must be presented to the Ivy Group. Exceptions will normally be granted in cases of illness or emergencies beyond the student’s control. In deciding other requests for exceptions the particular academic circumstances will be considered.
      February high school graduates who spend a term in a local college while waiting to begin their formal college career in September will generally not be regarded as ineligible in their ninth term. In any event, before a student may compete in a ninth or subsequent term of college, the case must be cleared by the Group.


author: EDWARD WEINFELD, District Judge.

text:
    Damon MILLER, Petitioner, v. Theodore REID, Respondent.
    No. 85 Civ. 1833.
    United States District Court, S.D. New York.
    Oct. 18, 1985.

      Robert W. Stieve, Chief, Appeals Bureau, Crim. Div., The Legal Aid Society of West-chester County, White Plains, N.Y., for petitioner.
    Carl A. Vergari, Dist. Atty. of Westches-ter County, White Plains, N.Y., for respondent; Douglas J. Martino, Asst. Dist. Atty., of counsel.
   OPINION

EDWARD WEINFELD, District Judge.

Upon a study of the Magistrate’s findings and recommendation and the Court’s independent de novo review of the entire record, the petitioner’s application for a writ of habeas corpus to release him on bail pending determination of his appeal by the Appellate Division of the Supreme Court of the State of New York is denied.

Petitioner was convicted of two separate sales, cocaine and heroin, and sentenced to concurrent terms of imprisonment of 4V2 to 9 years. His application to a Justice of the Appellate Division for bail pending appeal was denied without opinion, as was his motion to reargue the denial. He then filed the instant petition upon a claim that the State's denial of bail pending appeal violated his rights to due process, equal protection of the laws and reasonable bail under the Fifth, Eighth and Fourteenth Amendments to the United States Constitution.

While there is a substantial question that petitioner has properly presented to and exhausted available remedies in the state courts the same federal constitutional claims advanced here, the basic issue is whether there was a rational basis supporting the State’s denial of bail pending appeal. Under New York law, bail may be denied in the exercise of discretion by an Appellate Division Justice where, based upon enumerated factors, (1) there is a likelihood a defendant will not appear for required court appearances, or (2) regardless of the foregoing, a determination is made that “the appeal is palpably without merit.”

Where, as in this instance, the denial of bail was unaccompanied by a statement of reasons explaining the decision, the state court’s judgment is entitled to a presumption of regularity which may be overcome, the defendant having the burden of showing there is no rational basis in the record for the denial of bail. Upon a close review of the record it appears that there was a rational basis for the denial of bail on either or both grounds set forth in the State statute referred to above.

At the trial petitioner was identified by Police Officer Lewis Velez, who acted as an undercover agent, as the person who on two separate occasions sold him the narcotics; in each instance, during the course of the transaction, the agent had petitioner under eye to eye observation for at least ten minutes. Velez had been introduced previously to petitioner by an informer, Franklin Castillo, who was not a witness at the trial. Three days prior to the trial a Wade hearing had been conducted and the identity of the informer and his last known address were disclosed to defense counsel. The prosecution then noted that it did not have control of the informant, who no longer functioned in that capacity and did not know of his then whereabouts.

Upon the trial, following jury selection, defense counsel informed the Court that Castillo had been incarcerated at Rikers Island on a criminal charge, but no longer was there, whereupon the prosecution volunteered to locate him on an agreed condition that if he was located and testified for the defense, the People would be permitted to reopen its case. In the attempt to locate Castillo, the prosecution obtained an order for his production from Rikers Island; however it appeared that he had been transferred to the custody of the federal authorities at the Federal Metropolitan Correctional Center, New York City, for violation of his federal probation under a conviction of armed robbery.

The defendant, seeking to compel the People to produce Castillo, moved for a continuance of the trial, which was about to go to the jury. The motion was denied by the trial judge upon the ground that Castillo was equally available to the defendant; that delay at that stage of the trial was not justified; and that defendant had failed to show that Castillo possessed relevant and material evidence. Following his conviction by the jury upon both counts, he was sentenced as noted above as a second felony offender, since one of his prior convictions was for the sale of a controlled substance.

Upon a claim that the testimony of Cas-, tillo was “newly discovered evidence,” a post trial hearing was conducted on petitioner’s motion to set aside the judgment of conviction and for a new trial. Petitioner’s principal attack upon his judgment of conviction was that the undercover agent had misidentified him, and to support this claim he relied upon the testimony of Castillo. Despite Officer Velez’s positive identification of defendant at the trial as the seller of the narcotics on two separate occasions, Castillo testified that Velez had mistakenly identified defendant on one sale for a person named “Slim.” Castillo had no recollection of the second sale. Out of an abundance of caution, and in the interest of justice, the trial judge adjourned the matter to afford the defense to produce any evidence or witnesses as to the existence of another individual called “Slim.” Although the defense had a picture of this alleged individual, the defense produced no further evidence. Thereafter the Court, in an extensive review of the evidence, denied the motion for a new trial. The trial judge not only accepted the positive identification of defendant by the undercover officer as reliable and dependable in view of his experience and training, and the face to face transaction with petitioner, but found the testimony of Castillo, who had an extensive criminal record, unreliable; that Castillo was motivated to fabricate to avenge an alleged failure of the authorities adequately to protect him from retaliation and harassment by targets of investigations, as well as their failure to come to his aid in subsequent arrests on various criminal charges. The trial judge in a reasoned opinion based upon the hearing evidence or the lack thereof, explicated other factors which fully sustained the trial identification of petitioner. In sum, these factors and the trial record justify a rational finding that petitioner’s appeal is lacking in merit.

So, too, the defendant’s prior record, which included a predicate felony narcotics charge, after taking into account the factors specified in § 510.30, subdivision (2)(a) permits a rational conclusion that petitioner’s appearance in court when required is questionable.

The petition for a writ of habeas corpus to admit to bail is denied.

So ordered.

      . See Beatty v. Snow, 588 F.Supp. 809, 811 & n. 10 (S.D.N.Y.1984) (citing applicable cases); see also Finetti v. Harris, 609 F.2d 594 (2d Cir.1979).

      . N.Y.Crim.Proc.Law § 510.30(2)(a) and (b).

      . Finetti v. Harris, 609 F.2d 594, 601 (2d Cir.1979).

      . The fact determination of the trial judge as to credibility of Castillo and his motives reflects the view that may be properly applied to the recantation by a witness of his trial testimony. Cf. United States ex rel. Sostre v. Festa, 513 F.2d 1313, 1318 (2d Cir.), cert. denied, 423 U.S. 841, 96 S.Ct. 72, 46 L.Ed.2d 60 (1975); United States v. Curry, 358 F.2d 904, 918 (2d Cir.1965), cert. denied, 385 U.S. 873, 87 S.Ct. 147, 17 L.Ed.2d 100 (1966); United States v. Ratley, 284 F.2d 553, 554 (2d Cir.1960). Here the trial judge had the opportunity to observe the demeanor of Castillo on the witness stand, a factor of major significance. See United States ex rel. Sostre v. Festa, 513 F.2d at 1317.


author: HAROLD H. GREENE, District Judge.

text:
    UNITED STATES of America v. John A. SHORTER, Jr.
    Crim. No. 84-0421.
    United States District Court, District of Columbia.
    Oct. 21, 1985.
    As Amended Oct. 24, 1985.
    Carol E. Bruce, Darryl W. Jackson, Asst. U.S. Attys., Washington, D.C., for Government.

      John A. Shorter, Jr., Washington, D.C., pro se.
   MEMORANDUM ORDER

HAROLD H. GREENE, District Judge.

Defendant, an attorney appearing pro se, was convicted after a twenty-one day trial of one count of tax evasion and six counts of willful failure to pay income taxes. By motion filed before the verdict was rendered on Count 1, defendant moved for a mistrial as to that count and to vacate the verdict on Counts 2 through 7, on the ground of prosecutorial misconduct.

The jury began its deliberations in this case on October 3, 1985. On October 10, 1985, a partial verdict was returned, finding defendant guilty of six misdemeanor counts of willful failure to pay taxes. Five days later, on October 15, 1985, the jury returned a verdict of guilty on the one remaining count, which charged the felony of willful tax evasion. Defendant’s motion is based upon the publication of news articles by the Washington Post on October 4, 1985, and October 11, 1985, and he claims that the source of the information was the U.S. Attorney’s Office.

Defendant’s concern focuses on the eleventh and twelfth paragraphs of the article published on October 4, which describe the defendant’s 1974 nolo contendere plea to a charge of failing to file a federal income tax return, his 1977 guilty plea to a charge of failure to pay District of Columbia taxes, and a 1968 civil judgment entered against him for unpaid federal taxes. Although all of this information was available on the public record at the time the article was written, it is the Court’s conclusion, based upon similarities in wording, that the author of the article relied upon a description of defendant’s taxpaying history that was provided by the U.S. Attorney in a press release issued eleven months earlier, on November 1, 1984, on the occasion of defendant’s indictment.

Defendant contends that the November 1 press release constitutes a violation of this Court’s Local Rule l-27(c)(3), which provides:

From the time of ... the filing of a[n] ... indictment in any criminal matter until the commencement of trial ..., a lawyer ... associated with the prosecution ... shall not release or authorize the release of any extrajudicial statement which a reasonable person would expect to be disseminated by means of public communication, relating to that matter and concerning:
(1) The prior criminal record ... of the accused ...

The substance of Local Rule l-27(c)(3) is identical to that of the ABA Model Code of Professional Responsibility, Disciplinary Rule 7-107(B).

The November 1 press release was issued in the interval between indictment and trial, intended to be disseminated publicly, and contained information about defendant’s prior criminal record. On this basis, it would appear to violate both the Local Rules of this Court and the Model Code of Professional Responsibility issued by the American Bar Association. However, when ruling upon a defendant’s motion for a mistrial and to vacate the verdicts, this Court’s decision does not depend upon the propriety per se of the prosecution’s conduct under these rules. In contrast to those bodies whose primary function it is to supervise professional conduct, the Court’s principal concern is the likely impact of the disputed news coverage upon the fairness of the criminal proceedings before the Court.

Whether this fair trial issue is described as one of prosecutorial misconduct, as the defendant characterizes it, or as one of prejudicial publicity, as it might also be characterized, the standard governing the motion for a mistrial is the same: is it likely that the fairness of the proceedings has been actually prejudiced by the issuance of the government’s press release and the subsequent Washington Post articles? United States v. Hasting, 461 U.S. 499, 510-11, 103 S.Ct. 1974, 1981, 76 L.Ed.2d 96 (1982) (prosecutorial misconduct); Murphy v. Florida, 421 U.S. 794, 800, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1974) (publicity); United States v. DeCoster, 624 F.2d 196, 227 (D.C.Cir.1979) (en banc) (opinion of three judges) (same); United States v. Chapin, 515 F.2d 1274, 1289 (D.C.Cir.1975) (same).

The jurors themselves are the best source for assessing whether actual prejudice has occurred. See United States v. Haldeman, 559 F.2d 31, 60 (D.C.Cir.1976) (defendant is obliged to demonstrate real prejudice to the jury in order to prevail on a fair trial claim and he must normally look to voir dire as the sole source of evidence of prejudice).

At defendant’s request, the jurors were polled on the morning of October 15, 1985 (just prior to delivery of their verdict on Count 1) as to whether they had read the two articles in question or had heard about them. In response to the Court’s query, two jurors raised their hands and were heard at the bench. One juror indicated that he had seen the headline of one of the articles but could not remember what the headline said, and that he had no knowledge of the article’s contents. The other juror said that she was aware that the case had received news coverage, but had never seen or read any of it. Both jurors stressed that they had avoided learning anything about the case from news reports, in obedience to the Court’s instructions. The Court found the responses of these two jurors to be completely credible.

Several other factors at work in this case suggest that it is extremely unlikely that the jury was aware of the disputed press reports.

At the outset of the trial and regularly thereafter, the Court admonished the jury to disregard any accounts of the case that might appear in the news media. On October 4, 1985, the date on which the most troublesome article appeared and when the defendant first brought this matter to the attention of the Court, the jurors again received a strongly worded instruction on their obligation to avoid news reports about the case. “A crucial assumption underlying [our] system is that juries will follow the instructions given them by the trial judge.” Parker v. Randolph, 442 U.S. 62, 73, 99 S.Ct. 2132, 2139, 60 L.Ed.2d 713 (1979). This Court has no indication whatever that this jury — which demonstrated unusual attentiveness during three weeks of trial, deliberated for six and one-half days thereafter, posed four questions of law to the Court during deliberations, and returned a partial verdict on the fifth day of their deliberations — was anything less than sincere and responsible in its approach to the case and its obedience to the Court’s instructions.

Prejudice from trial publicity is not to be presumed from a record barren of evidence that jurors were actually influenced unless publicity about the case has so pervaded the community as to “utterly corrupt[]” the trial atmosphere. Dobbert v. Florida, 432 U.S. 282, 303, 97 S.Ct. 2290, 2303, 53 L.Ed.2d 344 (1977); Murphy v. Florida, 421 U.S. 794, 798, 95 S.Ct. 2031, 2035, 44 L.Ed.2d 589 (1974); United States v. Ehrlichman, 546 F.2d 910, 916 n. 8 (D.C.Cir.1976). The two articles challenged by the defendant do not suggest that publicity has in any sense “pervaded the proceedings.” Murphy v. Florida, supra, 421 U.S. at 799, 95 S.Ct. at 2035. The few cases in which prejudice has been presumed involved a degree of publicity that was far beyond anything alleged in this case. See, e.g., Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963) (defendant’s filmed confession broadcast three times by local television station).

Because defendant has not presented any evidence of actual prejudice to his fair trial rights, and has not established that publicity has so pervaded the proceedings as to create actual prejudice, it is this 21st day of October, 1985

ORDERED that defendant’s motion be and it is hereby denied; and it is further

ORDERED that sentence shall be imposed on December 2, 1985 at 10:00 a.m. in Courtroom No. 1.

      . Washington Post, October 4, 1985, at D3, Column 1; Washington Post, October 11, 1985, at C3, Column 3.

      . The Court made inquiry of the two Assistant U.S. Attorneys assigned to this case, and it is satisfied, based upon their representations, that they had nothing to do with the articles in question. It may reasonably be concluded that the November 1, 1984, press release was not directly intended to influence a jury deliberating in October 1985.

      . Upon further questioning, it became apparent that he had seen the headline of the October 4 article, which simply stated, "Jury Gets Noted D.C. Lawyer's Tax Evasion Case."

      . On that date, when defendant first brought the article to the Court's attention, the possibility of a jury poll was discussed among the Court and counsel, but Mr. Shorter declined to request such a poll. Instead, he asked the Honorable Louis Oberdorfer, acting on this Court’s behalf, to admonish the jury to disregard any news accounts concerning the case, and a strongly worded admonishment was given. On October 7, 1985, in response to inquiries from this Court, defendant again unequivocally expressed a desire that the jury not be polled. Defendant finally filed a written motion for a poll of the jury on the afternoon of October 11, 1985, after verdicts of guilty had been returned on six counts in the indictment but before the return of the jury on Count 1. As described above, that motion was heard and a poll conducted the morning of October 15, 1985, after the jury had advised the Court that it had reached a verdict on Count 1 but before the Court received that verdict.

      . The holding in United States v. Coast of Maine Lobster Co., 538 F.2d 899 (1st Cir.1976), does not suggest a different result. The Court in Coast of Maine Lobster Co. ordered a new trial as a supervisory — not constitutional — matter where a prosecutor's statement that "white collar criminals get off easy” was published as a conspicuous front page headline in the local newspaper the day before deliberations began in a tax evasion case. The Court there limited its decision to cases in which a prosecutor makes a statement about the case in the course of the trial itself that receives "prominent” coverage. Id. at 902. Here, by contrast, the government's statement was issued eleven months before trial. Furthermore, the appearance of two articles in the local news pages of the Washington Post cannot be compared to the front page headline at issue in Coast of Maine Lobster Co. That headline, unlike the headlines here, was in and of itself prejudicial. Finally, although the First Circuit did not rely on the voir dire, this Court takes note of the fact that a majority of the jurors in that case had actually seen the prejudicial headline in question. Similarly, in Henslee v. United States, 246 F.2d 190 (5th Cir.1957), upon which defendant ^also relies, the misconduct occurred in the course of the trial under very suspicious circumstances.


author: SWEET, District Judge.

text:
    Elfriede MAYER, Plaintiff, v. OIL FIELD SYSTEMS CORP., Integrated Energy, Inc., Burton Joel Ahrens and “John Doe”, fictitious, the true name or names of such defendants being presently unknown to the plaintiff, Defendants.
    No. 82 Civ. 3757 (RWS).
    United States District Court, S.D. New York.
    Oct. 21, 1985.
   MEMORANDUM OPINION

SWEET, District Judge.

Plaintiff Elfriede Mayer (“Mayer”) has moved for reconsideration of the June 11, 1985, 611 F.Supp. 635, opinion of the court which dismissed this action. For the following reasons, Mayer's motion will be denied.

1. The closing of the transaction

Mayer contends that the June 11 opinion was mistaken in finding that the allegedly fraudulent transaction was consummated on October 15, 1981, three days after Mayer had concededly obtained knowledge of the facts which allegedly were concealed by the defendants. Mayer asserts, however, that the relevant date for the closing of the transaction is September 22, 1981 at which time Oil Field Systems, Inc. (“OFS”) submitted its Reconfirmation of Acceptance to the Exchange Agent and thereby committed the limited partnerships to be bound by the transaction. In Mayer’s view, this reconfirmation “fixed the liability for the misconduct of defendants long before the conversation of October 12,1982 took place.”

Mayer’s statement of the facts underlying her claim confirms rather than rebuts the conclusion reached in the June 11 opinion. As viewed by the Court of Appeals, the limited partners’ 10b-5 action is premised on evidence of deception which prevented the limited partners from invoking state court remedies to prevent consummation of a fraudulent transaction. The reconfirmation letter of September 22, 1981 which irrevocably committed OFS to the transaction did not foreclose Mayer’s opportunity to seek a state remedy in 1981 but rather gave rise to such a cause of action. Such state remedies did not become unavailable until the closing of the transaction which could not have occurred before the October 15 cutoff date for reconfirmations of acceptances and did not actually occur until November 10, 1981. Since Mayer concedes that full disclosure occurred on October 12, 1981, she has not presented a claim under the federal securities laws.

2. Pendent jurisdiction

Mayer argues that notwithstanding the dismissal of her federal claims, the Court should retain the state law claims through the exercise of pendent jurisdiction. The exercise of pendent jurisdiction in this case where the federal claims have been dismissed on summary judgment before trial would be inappropriate absent exceptional circumstances. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 727, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966); Kavit v. A.L. Stamm & Co., 491 F.2d 1176, 1179 (2d Cir.1974). Mayer has not presented any persuasive rationale for treating this action as the exception to the rule. Since the New York civil rules allow a plaintiff to recommence a dismissed suit within six months without regard to the statute of limitations, N.Y.C. P.L.R. § 205, Mayer will not be unduly prejudiced by the dismissal of her state law claims.

Mayer’s motion for reconsideration is denied.

IT IS SO ORDERED.


author: RUSSELL E. SMITH, District Judge.

text:
    The UNITED STATES of America, For the Use of Douglas G. ANDERSON, Plaintiff, v. Jim CHALLINOR; Glacier National Bank; and the United States Forest Service, Defendants.
    No. CV 84-148-M-RES.
    United States District Court, D. Montana, Missoula Division.
    Oct. 22, 1985.
    Bruce McEvoy, Warden, Christiansen, Johnson & Berg, Kalispell, Mont., for plaintiff.
    Jim Challinor, pro se.
   OPINION

RUSSELL E. SMITH, District Judge.

This would be an ordinary Miller Act case except for the fact that some imaginative genius in the federal government decided that irrevocable letters of credit could be used as a substitute for Miller Act bonds. 41 C.F.R. § 1-10.204-2 (1984).

In this case a Forest Service contract was let and an irrevocable letter of credit taken from Glacier National Bank. The contractor failed to pay plaintiff subcontractor. The Forest Service presented the letter of credit, which was paid and the proceeds deposited with the clerk of this court. Neither the Forest Service nor Glacier National Bank resists this action.

Justice requires that the plaintiff be paid. A subcontractor cannot recover from the United States. Warrior Constructors, Inc. v. Harders, Inc., 387 F.2d 727, 729 (5th Cir.1967); United Electric Corp. v. United States, 647 F.2d 1082, 1083, 227 Ct.Cl. 236 (1981).

Unfortunately, however, those writing the rules which appear in the Code of Federal Regulations do not have power to confer jurisdiction on this court, and jurisdiction, if it exists, must be found in the statutes.

40 U.S.C. § 270b(a), which provides that persons “shall have the right to sue on such payment bond,” and Section 270b(b) vests jurisdiction of “[e]very suit instituted under this section” in the United States District Court. If these sections are read narrowly and literally, then suits are restricted to cases in which there is a payment bond. The purpose of the Miller Act is to protect those supplying labor and material on Government contracts, and in the words of the Supreme Court, the obligation on the bond “must be at least coextensive with the obligations imposed by the Act.” United States ex rel. Sherman v. Carter, 353 U.S. 210, 215-16, 77 S.Ct. 793, 796-97, 1 L.Ed.2d 776 (1957). 40 U.S.C. § 270a(a) requires that “bonds” be furnished, but in Section 270a(e), these words appear: “Nothing in this section shall be construed to limit the authority of any contracting officer to require a performance bond or other security in addition to those ... specified in subsection (a) of this section.” In this case, the contracting officer, by requiring the letter of credit, required a security. It was not “in addition” to the bond, but rather in lieu of the bond. The regulation (41 C.F.R. § 1-10.204-2 (1984)) under which the letter of credit was issued clearly indicates that the letter of credit is to be in lieu of the bond. The Forest Service knew that; the contractor knew that; and Glacier National Bank knew that. If additional security may be required, the requirement is useless unless the obligation to pay may be enforced against that additional security. It was the intention of all of the parties that the obligation created by the letter of credit should be coextensive with the obligations created by a performance bond. While the intention of the parties cannot confer jurisdiction, to now hold either that there is no right in the subcontractor to sue or that there is no jurisdiction in the court to try the suit, because the contracting officer had no power to accept a letter of credit which was not “in addition to” but in lieu of the performance bond, would frustrate the purpose of the Act rather than to liberally interpret the Act to achieve its purpose. See F.D. Rich Co. v. United States ex rel. Industrial Lumber Co., 417 U.S. 116, 124, 94 S.Ct. 2157, 2162-63, 40 L.Ed.2d 703 (1974); Carter, 353 U.S. at 216, 77 S.Ct. at 797.

It is my opinion, therefore, that the Miller Act provides a remedy and a forum in those cases where the law requires a bond and where an administrative officer accepts a letter of credit in lieu thereof.

      . 40 U.S.C. §§ 270a and b.


author: KANE, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Dean David YOUNG, Defendant.
    Civ. A. No. 85-CR-204.
    United States District Court, D. Colorado.
    Oct. 23, 1985.

      Richard J. Nolan, Asst. U.S. Atty., Denver, Colo., for plaintiff.
    Michael S. Axt, Denver, Colo., for defendant.
   ORDER

KANE, District Judge.

Several packages were taken to the Federal Express office in Fort Lauderdale, Florida. Federal Express employee Zito opened one of the packages and observed a white powder. Zito then contacted the Drug Enforcement Administration. A field test identified the powder as cocaine. The package was rewrapped and sent to its destination in Denver. The defendant was arrested when he claimed the package in Denver.

The defendant has moved to suppress all items seized as a result of the June 7,1985 warrantless search conducted by Zito at the Federal Express office in Florida. The defendant claims that the search of the package by Zito was not a private search, but was made with the knowledge, acquiescence, and/or encouragement of the DEA. In support of its motion the defendant cites United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984), United States v. Walther, 652 F.2d 788, 793 (9th Cir.1981), and United States v. Barry, 673 F.2d 912, 915 (6th Cir.1982), cert. denied, 459 U.S. 927, 103 S.Ct. 238, 74 L.Ed.2d 188.

In Jacobsen, the Supreme Court stated that the search and seizure clause of the Fourth Amendment is wholly inapplicable “to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.” 466 U.S. at 113, 104 S.Ct. at 1656, citing Walter v. United States, 477 U.S. 649, 662, 100 S.Ct. 2395, 2404, 65 L.Ed.2d 410 (1980) (Blackmun, J., dissenting). In Jacobsen, employees of Federal Express opened a package that had been damaged in order to examine the contents pursuant to a written company policy regarding insurance claims. The employees found white powder inside the package, rewrapped the package, then contacted the federal agents. The Supreme Court held that the federal agents’ removal of the contents from the package and the agents’ visual inspection of the contents did not constitute a “search” within the meaning of the Fourth Amendment because the agents did not learn anything that had not previously been learned during the private search. The court also held that a field test, which exceeded the scope of the private search, was not a “search” subject to the Fourth Amendment because the test did not compromise any legitimate interest in privacy.

In Walther, the Ninth Circuit held that “the government cannot knowingly acquiesce in and encourage directly or indirectly a private citizen to engage in activity which it is prohibited from pursuing where that citizen has no motivation other than the expectation of reward for his or her efforts.” 652 F.2d at 793. The court listed two factors that are critical in determining whether a private party was acting as an instrument or agent of the government: 1) the government’s knowledge or acquiescence, and 2) the intent of the party performing the search. Id. at 792. In Walther, the Ninth Circuit held that the evidence provided proof of the government’s acquiescence in the search because the private party had been rewarded for providing drug-related information in the past. In addition, the DEA had knowledge of a particular pattern of search activity dealing with a specific category of cargo, and had acquiesced in such activity. The Ninth Circuit also held that the evidence supported a finding that the private party had the requisite mental state of an instrument or agent of the government because the evidence indicated that the private party opened the package with the expectation of probable reward from the DEA. In addition, the private party testified that the only reason why he opened the package was because he suspected that it contained illegal drugs.

In Barry, a damaged package was referred to a company service agent who, under normal circumstances, would have taken it to a “rewrap agent.” The agent saw four bottles containing pills through a small hole in the package, however, and contacted a security manager. The security manager then called the DEA. The court held that the search was private and hence not subject to the warrant requirement of the Fourth Amendment.

The government, on the other hand, asserts that it did not instigate or control the actions of the Federal Express employees.

From the evidence I find that Zito is a private individual who was not acting as a government agent nor was he acting under the direction of a government official. Zito’s sole motivation was not the expectation of reward from the government for his efforts. Rather, his testimony is uncontra-dicted that he acted to protect his employer and fellow employees from the dangers inherent in the presence of contraband in the company’s environs. Among these dangers are the possibility of retaliation against the employees occasioned by the loss of such contraband in transit, the temptation to steal such items or succumb to entreaties to participate in illegal trafficking to the detriment of the employer and other employees. These reasons are sufficient to establish independence from government control and thereby avoid the imputation that a private individual is no more than a shill for a government agency intent upon avoiding the discipline imposed upon it by the Fourth Amendment. The government alone is not the only entity interested in combating the illegal flow of controlled substances. The motion is denied.