text:
    UNITED STATES, Plaintiff, Sheanda Bryant, et al., Plaintiff-Intervenors, v. LAWRENCE COUNTY SCHOOL DISTRICT, Defendant.
    Civ. A. No. H-2216(L).
    United States District Court, S.D. Mississippi, Hattiesburg Division.
    Jan. 10, 1986.

      Suzanne Griggins, Community Law Office, Mendenhall, Miss., and Jean Pettenati, Civil Rights Div., U.S. Dept. of Justice, Washington, D.C., for plaintiff/plaintiffsintervenors.
    Kenneth A. Rutherford, Susan L. Runnels and Thomas Price, Alston, Jones & Davis, Jackson, Miss., and Malcolm T. Rogers, George & Rogers, Monticello, Miss., for defendant.
   MEMORANDUM OPINION

TOM S. LEE, District Judge.

Following initiation of this action by the United States in 1967, the Fifth Circuit Court of Appeals entered orders in November 1969 enjoining discrimination on the basis of race in the Lawrence County Public School System. Pursuant to the modified plan developed to desegregate the school system, students in grades 1 through 12 residing in the northeast section of Lawrence County attend New Hebron School and students in grades 1 through 12 who live in the southwest section of the county attend Topeka Tilton School. The remaining students live in zone 2 and attend Monticello High School and McCullough Junior High School in grades 5 through 12; elementary students living in the eastern portion of zone 2 attend Beulah Williams School and those in the western section attend Monticello Elementary School.

On January 9, 1974, the Fifth Circuit entered an order which stated in part:

It now appears that the Lawrence County School District School system has been and is being maintained as a unitary school system in compliance with the aforesaid orders, and it further appearing that it would be appropriate to transfer jurisdiction of the case to the district court under a final order there to be entered as follows:

Under that order, the case was transferred to the inactive docket of this court but was subject to reopening upon a showing of good cause; the defendant continued to be bound by previous orders in the case including the requirement to file semi-annual reports. The case was reopened in March 1984 by the United States to enjoin the defendant from accepting students from other counties in violation of the 1969 order. Judge Dan M. Russell, Jr. found that the defendant was in violation of the 1969 orders in permitting enrollment of nonresident students and ordered compliance.

In July 1984, plaintiff-intervenors filed a complaint against the Lawrence County School District (hereinafter sometimes referred to as the “School District” or the “District”) alleging various violations of the 1969 orders and requesting that the court enjoin school construction which was funded by a bond issue approved by the Lawrence County electorate in May 1984. Following an evidentiary hearing, this court denied plaintiff-intervenors’ motion for preliminary injunction on the construction issue. On appeal, the Fifth Circuit affirmed and suggested that the district court consider enjoining further execution of contracts and determine the effect of the language in the 1974 order that the Lawrence County School System “has been and is being maintained as a unitary school system.” The parties briefed the issue and the court issued an order finding that the School District was not found to be unitary by virtue of the 1974 order. The court also enjoined further execution of contracts by the District and set the case for an expedited trial.

At the pretrial conference, the parties stated that only the issues of the defendant’s current desegregation plan, the proposed construction plan, transportation and faculty assignment were to be considered at trial, the other issues being negotiated for settlement.

The initial question for consideration is, of course, jurisdiction. In a previous order, this court determined that the School District had not been declared unitary. A declaration of unitariness involves a finding that a school system has eradicated the dual school system and is no longer in violation of the United States Constitution. See Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 31-32, 91 S.Ct. 1267, 1283-84, 28 L.Ed.2d 554 (1971). Because the Lawrence County School District has not been found to be unitary, this court has jurisdiction.

ATTENDANCE PLAN

Plaintiff-intervenors object first to the attendance plan currently being utilized by the defendant. The present plan consists of the 1969 court-ordered plan with changes implemented independently by the School District, including the closing of Silver Creek School in 1981 and the proposed bussing of students to Monticello for vocational-technical and advanced classes.

Of the five schools in the county, two, Topeka Tilton and Beulah Williams, are arguably racially identifiable in that they have student bodies which are predominantly of one race. The use of statistical data is, however, “no more than a starting point” in this court’s analysis. Swann, 402 U.S. at 24, 91 S.Ct. at 1280. See Price v. Denison Independent School District, 694 F.2d 334, 356 (5th Cir.1982); Carr v. Montgomery County Board of Education, 377 F.Supp. 1123 (M.D.Ala.1974), affd, 511 F.2d 1374, rehearing and rehearing en banc denied, 511 F.2d 1390 (5th Cir.), cert. denied, 423 U.S. 986, 96 S.Ct. 394, 46 L.Ed.2d 303 (1975). While the presence of racially identifiable schools is not per se offensive of the Constitution, the School District must demonstrate that such schools are not vestiges of past discrimination. See Davis v. East Baton Rouge School Board, 721 F.2d 1425, 1434 (5th Cir.1983); Valley v. Rapides Parish School Board, 702 F.2d 1221, 1226 (5th Cir.1983); Price v. Denison, 694 F.2d at 349. Assuming that Topeka Tilton and Beulah Williams are considered racially identifiable, the result is that those schools enroll 26.04% of all students in the county and 17.67% of the county’s black students. While a school system ideally should include no schools which are even arguably racially identifiable, the court is of the opinion that geographic and demographic factors peculiar to Lawrence County prohibit this ideal result. The Pearl River, which traverses Lawrence County from north to south, is crossed by only two bridges, one in Monticello and one approximately three miles north of Monticello, thus limiting easy access from all parts of the county to Monticello, which is the county seat and has a population of about 2000. The southwestern and northeastern sections of the county are predominantly white while the black community is concentrated in the southeastern and northwestern portions of the county. This geographic separation of the races was not shown to be caused by any prior discriminatory acts on the part of the defendant. Additionally, the ratios in the schools do not differ substantially from those projected in the original plan approved in 1969. It appears from the evidence, however, that the racial composition of the schools has been adversely affected by the defendant’s leniency in regard to zone jumping. According to plaintiff-intervenors, a number of whites cross attendance zone lines and county lines to avoid majority black schools, especially Beulah Williams. Therefore, strict enforcement of the attendance zones should alleviate a substantial portion of the racial imbalance by decreasing the number of whites at Topeka Tilton and New Hebron while increasing the number of whites at Beulah Williams. The parties have represented to the court that they are attempting to reach agreement on the means by which zone jumping can be prevented.

With proper enforcement of school attendance zones, this court is of the opinion that the current school attendance zone plan in effect in Lawrence County satisfies the constitutional standard of “promis[ing] realistically to work now.” (emphasis original). Green v. County School Board, 391 U.S. 430, 439, 88 S.Ct. 1689, 1695, 20 L.Ed.2d 716 (1968).

Plaintiff-intervenors presented seven alternate plans for consideration by the court, all of which involve some degree of consolidation. The court rejects those plans because it finds that, with proper enforcement of attendance zones, the current plan passes constitutional muster. It should be further noted that consolidation will involve extensive additional bussing, burdening both students and the financial position of the District. Contrary to plaintiff-intervenors’ conclusions drawn from capacity data compiled by Dr. William B. Field, a facilities planning expert, consolidation would require either additional buildings or severe overcrowding of classrooms, neither of which is desirable.

SCHOOL CONSTRUCTION

Plaintiff-intervenors challenge the District’s proposals for school construction to be funded by proceeds of the 1984 bond issue. In Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 21, 91 S.Ct. 1267, 1278-79, 28 L.Ed.2d 554 (1971), the United States Supreme Court recognized that

in ascertaining the existence of legally imposed school segregation, the existence of a pattern of school construction and abandonment is thus a factor of great weight. In devising remedies where legally imposed segregation has been established, it is the responsibility of local authorities and district courts to see to it that further school construction and abandonment is not used and does not serve to perpetuate or re-establish the dual system.

In Tasby v. Estes, 517 F.2d 92, 105-06 (5th Cir.1975), the district court had approved the school system’s proposed construction plan. The Fifth Circuit Court of Appeals determined that “the school authorities in the district court ha[d] not accorded proper weight to the racial composition of student bodies in considering the selection and acquisition of new sites and new facilities.” Id. at 106. The Fifth Circuit reversed and remanded with directions that the district court “evaluate all the site acquisition, school construction and facility abandonment plans put forward by the [school district] in light of the impact which these undertakings will have upon the disestablishment of the dual school system.” Id. at 110. At trial, Denson Deavers, Superintendent of Lawrence County Schools, testified that the effect on desegregation was one factor considered by the school board in developing its construction plans and in choosing a site for Monticello Elementary School. The court is of the opinion, based upon its review of the evidence presented, that the proposed construction plan satisfies the board’s “affirmative duty, overriding all considerations with respect to the locating of new schools, except where inconsistent with ‘proper operation of the school system as a whole’, to seek means to eradicate the vestiges of the dual system.” United States v. Board of Public Instruction, 395 F.2d 66, 69 (5th Cir.1968). See also United States v. Texas Education Agency, 532 F.2d 380, 398 (5th Cir.1976).

Plaintiff-intervenors object to the site proposed for construction of a new Monticello Elementary School. The proposed site is approximately 400 yards from the present location of Monticello High School. The site is currently a pasture surrounded by a white church, a white housing project, a Little League field and pine trees. Although the nearby church and residences are white, because of the sparse population, it cannot be said that the area is ■racially identifiable or more easily accessible to students of one race. Additionally, Monticello Elementary School, which is approximately 57% black, would continue to serve the same attendance area; accordingly, the school is not intended to be a one-race school. The evidence presented at trial did not show that alternate sites identified by plaintiff-intervenors were actually available, appropriate for a school building and facilitative of desegregation.

The court is of the opinion that the site chosen, for the reasons stated above, will not be a factor tending to resegregate the Lawrence County schools. Furthermore, because the new facility will replace a building which was, prior to 1969, a white school, it will serve to promote the desegregative purpose in providing a facility which has no ties to a particular race.

The 1984 bond issue provides for improvements and additions to the facilities at New Hebron, Topeka Tilton and Beulah Williams. The changes do not involve construction of a new school at a new location and, therefore, raise issues different from those considered in Tasby or with reference to the proposed new Monticello Elementary School. The evidence clearly established that the proposed construction at those schools is necessary to provide a safe and effective learning environment and to comply with state requirements for kindergarten classes. Furthermore, the evidence failed to show that New Hebron and Topeka Tilton, predominantly white schools, were receiving the benefits of those improvements to the detriment of Beulah Williams or McCullough, the schools in the county which are historically and predominantly black. The video tapes admitted into evidence at the hearing on the motion for preliminary injunction showed that the bond issue proceeds were being used at all three schools to remedy conditions that interfered with effective education. Plaintiff-intervenors argue that consolidation of the county schools is necessary to achieve desegregation and that renovation of the facilities at New Hebron and Topeka Til-ton, which would be closed under a consolidation plan, will hinder this ultimate objective. For reasons stated previously in this opinion, the court concludes that consolidation is not necessary in Lawrence County.

Accordingly, this court is of the opinion that the District’s construction plans satisfy the constitutional obligations.

TRANSPORTATION

Plaintiff-intervenors also contend that the Lawrence County School District maintains segregated buses and biis routes. Not until 1980, more than ten years after the Fifth Circuit orders to desegrate, when a black, James Hill, became transportation director, did the District dispense with segregated bus routes for blacks and whites. Eugene Bryant, a black, testified that he had ridden his child’s bus and it had many blacks on it. School District transportation records establish that some buses do have a substantial majority of riders of one race. The court’s review of the bus route map does not indicate that the bus routes are gerrymandered to effectuate segregated buses. Any racial imbalance that does occur is caused by the location of black and white communities, which was not shown to be the product of past discriminatory acts. Therefore, the court is of the opinion that plaintiff-intervenors should not prevail on this claim.

TEACHER ASSIGNMENT

Plaintiff-intervenors finally contend that the school district is in violation of the 1969 orders regarding teacher assignment. The issue of teacher assignment is apparently closely tied to the district’s hiring policy which is to be the subject of a proposed consent decree. The court will retain under advisement the issue of teacher assignment pending the outcome of settlement negotiations by the parties with reference to hiring.

An order in conformance with this opinion shall be entered, at which time the preliminary injunction entered by order dated November 1, 1985 shall be dissolved.

      . The order was docketed with this court on November 9, 1974.

      . The Lawrence County desegregation order contained a Singleton provision which stated:

        Attendance Outside of System of Residence if the school district grants transfers to students living in the district for their attendance at public schools outside the district, or if it permits transfers into the district of students who live outside the district, it shall do so on a nondiscriminatory basis, except that it shall not consent to transfers where the cumulative effect will reduce desegregation in either district or re-enforce the dual school system.

      . Plaintiff-intervenors, Sheanda N. Bryant, Lewis Devon Bridges, Angela Showers, Eric Bridges and Lesonya Bryant, are black minor residents of Lawrence County and are students enrolled in the schools of the Lawrence County School District. The suit is brought by their parents and next friends, Eugene Bryant, Lewis Bridges, Billy Showers, Amos Bridges and Willie Lee Funches.
      The United States investigated the allegations raised in plaintiff-intervenors’ complaint and is negotiating with Lawrence County to resolve issues regarding employment and student transfer policies which, in the opinion of the United States, violate the 1969 orders. The United States did not participate in the trial.

      . The defendant proposes to use the bond issue proceeds to construct a new air-conditioned elementary school at Monticello; a new vocational-technical center on the Monticello High School campus; a new air-conditioned classroom at New Hebron; new class rooms, band hall, kitchen and cafetorium at Topeka-Tilton; and new classrooms at Beulah Williams.

      . In its opinion, the Fifth Circuit stated:
      We are unable to determine whether [the 1974 order] meant that the school district was on the way to discharging its constitutional duty by complying with the court orders or whether at that time it had fulfilled its constitutional duty to disestablish the dual system.
      The Fifth Circuit's opinion stated that, if the school system were not unitary, the building program and the Board’s plan should have been designed “to promote integration rather than to avoid reinstating segregation.” (emphasis original). But see Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 21, 91 S.Ct. 1267, 1278-79, 28 L.Ed.2d 554 (1971) (non-unitary school obligated to "see to it that further school construction and abandonment is not used and does not serve to perpetuate or re-establish the dual system); Lee v. Macon County Bd. of Ed., 584 F.2d 78, 81 (5th Cir.1978) (non-unitary school has duty "to take no actions which would reinstitute a dual school system ...”); United States v. Lawrence County School District, 5th Cir., 1969 order ("All school construction, school consolidation and site selection ... shall be done in a manner which will prevent the recurrence of the dual school structure ...”).

      . Plaintiff-intervenors, prior to trial, filed a motion for certification of class. By agreement of the parties, the motion is held in abeyance.

      . The defendant offered no reason for the closing of the Silver Creek school which, before it was destroyed by fire, was located near Beulah Williams. Plaintiff-intervenors apparently do not object to the closing.

      . The defendant has never sought approval of any of these deviations from the court-ordered plan and apparently does not do so now.

      . Plaintiff-intervenors contend that New Hebron, which has a 35.5% black student body, is racially identifiable. The percentage of black students at New Hebron, however, varies by only 8.3 percentage points from the district-wide ratio. In his opinion of June 25, 1984, Judge Russell stated that “[t]he school which was traditionally white, New Hebron, remains so ...,” relying on enrollment figures at New Hebron for the 1982-83 school year. At that time New Hebron was only 31.8% black.

      . According to the October 1985 report to the court, the racial populations of the county schools were as follows:
      Black White % Black
      Monticello High 175 180 49.3
      McCullough Jr. High 351 328 51.7
      Monticello Elementary 304 234 56.5
      New Hebron 172 313 35.5
      Topeka Tilton 51 443 10.3
      Beulah Williams 164 66 71.3
      TOTAL — DISTRICT 1217 1564 43.8

      . The court recognizes that, while such factors are to be considered in formulating a desegregation plan, "they do not work to relieve the Board of its constitutional responsibilities." Davis v. East Baton Rouge Parish School Bd., 721 F.2d 1425, 1435 (5th Cir.1983).

      . % Black — 1970 % Black — 1985
      Monticello High 50.6 49.3
      McCullough 46.6 51.7
      Monticello Elementary 38.9 56.5
      New Hebron 38.3 35.5
      Topeka Tilton 19.2 10.3
      Beulah Williams 48.4 71.3
      TOTAL DISTRICT 41.3 43.7

      . Since Judge Russell ordered compliance with the zone lines, the proportion of whites at New Hebron has already decreased by 3.7 percentage points, bringing the black-white ratio at the school nearer to that of the district.

      . Judge Russell’s May 18, 1970 opinion rejecting a consolidation plan found that the preservation of New Hebron and Topeka Tilton
      preserved these two schools as the heart of their respective communities, affords a closer relationship between the school and their patrons, eliminates increased travel time up to an added hour and one-half per day for many students, and permits a broader base for student participation in class and team effort than afforded by one high school.
      This court acknowledges that neighborhood schools promote "worthy community values”, but its approval of the present attendance zones is based on the plan’s effectiveness in furthering the "constitutional imperative of desegregation.” Valley v. Rapides Parish School Bd., 702 F.2d 1221, 1229 (5th Cir.1983).

      . Plaintiff-intervenors’ complaint sought strict enforcement of the present zone lines.
      Defendant’s argument that the doctrine of res judicata bars litigation of plaintiff-intervenors’ claims regarding consolidation requires little discussion as it is without merit. A school district has a continuing obligation to seek means of eradicating the vestiges of a dual system, a duty which may not be satisfied by rigorous adherence to a previous court order. See Taylor v. Quachita Parish School Bd., 648 F.2d 959, 968 n. 10 (5th Cir.1981). Bronson v. Board of Ed., 525 F.2d 344 (6th Cir.1975) does not hold otherwise as it deals with a previous finding that the school district was not in violation of the constitution and not with the question of remedy which is at issue here.

      . Superintendent Deavers testified that the state would not fund the duplicative bussing involved in partial consolidation.

      . Superintendent Deavers testified that the Board considered total consolidation of the system and consolidation of the high schools but found the cost of additional facilities and bussing to be prohibitive. The Board also considered a plan for two county schools, one on either side of the Pearl River, but determined that such a plan would result in severe racial imbalance.

      . In Tasby, the school superintendent stated that race was considered by the board but that the overriding consideration in developing the construction plan was providing facilities for students in the established attendance zones. The Fifth Circuit found this to be inadequate because the zones had been previously used to implement the "neighborhood school concept” which resulted in perpetuation of the vestiges of a dual school system. Tasby, 517 F.2d at 106. Therefore, because race was merely a factor and not the overriding consideration in the deliberations of the Lawrence County School Board, that Board did not satisfy its constitutional obligations as set out in Tasby and the plan must be reviewed by this court under the proper standard.

      . In addition to this responsibility, the Board was also bound by the school construction provision'of the 1969 orders, the relevant text of which is reprinted at footnote 5.

      . Plaintiff intervenors stipulated that the present Monticello Elementary School is in poor condition and should be replaced, but presented evidence, without objection by defendants, that renovation of the present facility should be considered. The evidence showed overwhelmingly that the location of Monticello Elementary School, which is comprised of four unconnected buildings, at the intersection of two major roadways in downtown Monticello provides a poor and unsafe educational environment to the point of interfering with proper operation of the school. Additionally, the present buildings do not qualify for insurance required by the state.
      Plaintiff-intervenors also object to defendant's proposal to build the Vocational Technical Center on the Monticello High campus, but offered no evidence on that point. Final site selection for the center has not been made.

      . According to Mississippi Highway Department plans, the land may soon be traversed by a highway. The District's architect has developed plans, however, which allow for the building in the event the highway is constructed across the property.

      . Defendant offered affidavits of owners of the sites proposed by plaintiff-intervenors stating that the sites are not for sale. One of the landowners stated by affidavit dated December 12, 1985 that he was unwilling to sell and by affidavit offered by plaintiff-intervenors that he was. Neither party attempted to explain the conflict and the court cannot conclude that the land was actually available for sale. Even if the owner were willing to sell when the District needed to purchase the property, the court is of the opinion that selection of that location would not further desegregation any more than the site chosen. Plaintiff-intervenors have not provided the court with sufficient facts from which to find the desegregative superiority of their choice. The court is influenced by the fact that the subzone which Monticello Elementary serves is not large or densely populated.

      . The factors considered by this court are those considered by the court in Brewer, 397 F.2d at 42 which was cited with approval by the Fifth Circuit in Tasby, 517 F.2d at 105-06. The court approved similar factors in Copeland v. Lincoln Parish School Bd., 598 F.2d 977, 981 (5th Cir. 1979).

      . Deavers testified that the Board makes repairs depending on the need and available funding and does not discriminate against any schools.
      Plaintiff-intervenors also argue that the defendant discriminates against predominantly or historically black schools in the funding of curriculum enhancements. Until this suit was initiated, Beulah Williams did not offer band, chorus or gifted programs which are provided through most of the other schools. Whatever the reason for the previous inequity in programming, the enriched curriculum is now in place at Beulah Williams and presumably will continue. It should be noted that the students at Beulah Williams, which is over 70% black, consistently score higher on the California Achievement Test than other students in the county.

      . Plaintiff-intervenors contend that the district is creating excess capacity to ensure continued use of the present configuration of schools in the county. Dr. William B. Field visited the schools, and concluded that most of the classroom space to be added by 1984 bond issue proceeds is unnecessary. Because Field’s data relied on having the maximum number of students in each class all day without considering the necessity or advantages of smaller classes, the court finds that usable capacity does not substantially exceed the district’s needs. Both Dr. Field and Dr. Michael Stolee, a desegregation expert, recommended different scheduling methods to make more efficient use of available capacity. The court is of the opinion that decisions regarding scheduling are educational questions and, to the extent they are severable from constitutional issues, are best left to the discretion of the District. Furthermore, the use of stored capacity for a segregative purpose presupposes that families of a particular race will move into the zone from other parts of the county to take advantage of the excess capacity, evidence of which was not presented.


source: Caselaw Access Project

author: HADEN, Chief Judge.

license: Public Domain

text:
    WESTERN RESERVE OIL AND GAS COMPANY, LTD., Plaintiff, v. KEY OIL, INC., Defendant.
    Civ. A No. 83-A105.
    United States District Court, S.D. West Virginia, Parkersburg Division.
    Jan. 13, 1986.

      R.P. Duranti, Jr., Ravenswood, W.Va., Clovis D. Kuhn, Huntington, W.Va., for plaintiff.
    Guy E. MeGaughey, Jr. and Terry L. Mulligan, MeGaughey & MeGaughey, Lawrenceville, III, Lee F. Benford, II, Hash & Benford, Ravenswood, W.Va., for defendant.
   MEMORANDUM OPINION AND ORDER

HADEN, Chief Judge.

Pending before the Court is the motion of the Plaintiff for a new trial. Although the Court has delayed ruling on the motion so as to consider the Defendant’s response, one has not been forthcoming. Plaintiff has assigned three grounds to support its motion: (1) that the testimony of two witnesses was false; (2) that “new evidence” has been discovered; and (3) that a witness indispensible to the prosecution of the complaint and the defense of the counterclaim was unavailable for discovery and trial. The Court turns first to the third ground assigned by the Plaintiff.

The Plaintiff complained at trial that the ineffectiveness of its case could be traced to the Court’s denial of its pretrial motion for continuance. It now renews its argument that such denial prevented the Plaintiff from having Trevor Phillips, principal of the Plaintiff, available to prepare and present its case. The Plaintiff’s argument is devoid of merit for several reasons.

The Plaintiff overlooks the fact that this Court excluded Trevor Phillips from testifying at the trial of this case because of his failure to submit to discovery. Hence, he could not have testified even if the trial had. been continued to a later time. See Order entered October 22, 1985. Indeed, if this Court ultimately decides that a new trial is necessary, Phillips will still not be permitted to testify.

The sanction of excluding testimony may be a harsh one; however, in this instance it is just. By Order of this Court entered September 13, 1985, the Plaintiff was ordered to produce Trevor Phillips and Donna Taylor Spencer for deposition by September 23, 1985. Those two individuals, and the Plaintiff, chose to disobey this direct order of the Court. The record also reflects that the Plaintiff did not cooperate with the Defendant in arranging a deposition even after this Court-ordered deadline had passed. Rule 37, which deals with sanctions for discovery abuse, provides that “the court in which the action is pending may make such orders in regard to the failure [to obey a court order] as are just.” Rule 37(b)(2), Federal Rules of Civil Procedure. The rule is flexible. See Wright & Miller, Federal Practice and Procedure, § 2284 (1970). A trial court has broad discretion in applying sanctions under this rule. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976); Wilson v. Volkswagen of America, Inc., 561 F.2d 494 (4th Cir.1977), cert. denied, 434 U.S. 1020, 98 S.Ct. 744, 54 L.Ed.2d 768 (1978). In fashioning a sanction for the contemptuous conduct by Phillips and Spencer, it must be noted that the Court rejected the Draconian step of dismissing Plaintiff’s complaint and entering judgment upon the counterclaim; Anderson v. Air West, Inc., 542 F.2d 1090 (9th Cir.1976); Al Barnett & Son, Inc. v. Outboard Marine Corp., 611 F.2d 32 (3d Cir.1979); Bonaventure v. Butler, 593 F.2d 625 (5th Cir.1979); this was the sanction requested by the Defendant. Instead, the Court precluded Phillips and Taylor from testifying. Exclusion of evidence is recognized as an appropriate sanction under Rule 37(b). See In Re Pine Paper Anti-Trust Litigation, 685 F.2d 810 (3d Cir.1982), cert. denied, 459 U.S. 1156, 103 S.Ct. 801, 74 L.Ed.2d 1003 (1982); U.S. v. Sumitomo Marine & Fire Ins. Co., 617 F.2d 1365 (9th Cir.1980); Von Brimer v. Whirlpool Corp., 536 F.2d 838 (9th Cir. 1976).

Exclusion of testimony is particularly appropriate where the wrong pertains to a failure to allow a deposition to take place. The purpose of a deposition is to learn the substance of the opponent’s evidence. It also allows a party to “lock in” an adverse witness’s testimony and prepare to meet potential problems in advance of trial. Here, the Plaintiff willfully refused to allow a key witness to be deposed. The harm created by such obstinance can best be remedied by an exclusion of the undiscovered witness.

In asking for a continuance, the Plaintiff made reference to the difficulty which Mr. Phillips is apparently having with the IRS. It is unclear whether Phillips refused to attend his scheduled deposition because he did not wish to incriminate .himself. In the event that he would claim such a privilege, the Court notes that at no time did Phillips ever appear before this Court or a judicial officer and invoke his right to remain silent. U.S. v. Hankins, 565 F.2d 1344 (5th Cir.1978) (witness must appear and have specific questions propounded upon him). The burden is upon the claimant of the privilege to provide a basis for believing that responsive answers or explanations would raise a danger of incrimination. Hoffman v. U.S., 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951); Baker v. Limber, 647 F.2d 912 (9th Cir. 1981). Once a party has raised the privilege, a Court must undertake to examine the implications of the questions and to determine whether silence is justified. Hoffman, 341 U.S. 479, 71 S.Ct. at 814; U.S. v. Zappola, 646 F.2d 48 (2d Cir.1981), on remand, 523 F.Supp. 362, affirmed, 677 F.2d 264 (1982), cert. denied, Melli v. U.S., 459 U.S. 866, 103 S.Ct. 145, 74 L.Ed.2d 122 (1982); U.S. v. Goodwin, 625 F.2d 693 (5th Cir.1980); U.S. v. Neff, 615 F.2d 1235 (9th Cir.), cert. denied, 447 U.S. 925, 100 S.Ct. 3018, 65 L.Ed.2d 1117 (1980). The privilege-applies only where the danger of self-incrimination is real and appreciable, not remote and speculative. Zicarelli v. New Jersey State Commission of Investigation, 406 U.S. 472, 92 S.Ct. 1670, 32 L.Ed.2d 234 (1972). By refusing to even appear at a deposition, Phillips precluded this Court from analyzing the context in which he was raising the privilege. Moreover, the privilege against incrimination is personal in nature. U.S. v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975). The Plaintiff's attorneys could not have raised the issue at trial on behalf of Phillips; Phillips should have asserted the privilege at a scheduled deposition in the first instance.

As mentioned, the Plaintiff refers to the “unavailability” of its key witness, Phillips. In moving for a continuance, the Plaintiff had submitted a memorandum which detailed a series of events which had transpired in California in connection with an IRS proceeding. The tone of the memorandum is one of indignation for the perceived injustices suffered by Phillips in that proceeding. The Plaintiff baldly asserted that this “trouble with the IRS” rendered Phillips unavailable. The Plaintiff at no point, however, directed the Court’s attention to any proceeding connected with the California litigation which conflicted with the trial of this action or with scheduled depositions. Indeed, the manifestation of a lack of conflict can be found by the presence of Phillips’ three attorneys at trial.

The record of this case does not support the Plaintiff’s lament that it was unable to adequately prepare for trial. First, this action has been on the Court’s docket for approximately twenty-six months. Reference to the docket sheet is replete with activities by both parties in preparation for trial. The Court, therefore, finds that the Plaintiff had ample and adequate time to prepare for this trial. Second, the Plaintiff had obviously taken steps to compensate for the absence of Phillips. Its portion of the integrated pretrial order listed forty individuals as potential trial witnesses. In facilitation thereof, the Plaintiff had filed a praecipe with the Clerk’s Office requesting forty sets of subpoenas. The Court notes that several witnesses were served and appeared at the courthouse on the day of trial. After calling only four witnesses, though, the Plaintiff opted to punt and fall back to the tenuous position of asserting prejudice for failing to obtain a continuance.

It is abundantly clear to the Court that Trevor Phillips, the principal of the Plaintiff, had decided to put this matter on the back burner while he pursued matters he deemed more important. The Court is aware that Mr. Phillips is a busy man. Many people involved in complex litigation have pressing personal and business calendars. Interest in other matters, however, does not justify unilateral decisions to disobey valid Court orders or the discovery rules. By pursuing a course of obstinance, Phillips was, in part, the author of the misfortune suffered by his company in this Court. Hence, the Court rejects the third ground assigned by the Plaintiff in support of its motion for a new trial.

In the first ground assigned in support of the motion for new trial, the Plaintiff effectively charges two witnesses, Tim Huffman and Frank Pethel, with perjury. Obviously, this is a serious accusation. In Phillips v. Crown Central Petroleum Corp., 556 F.2d 702 (4th Cir.1977), the Fourth Circuit addressed the question of perjury in the context of a motion for new trial. In Phillips one' of the plaintiffs admitted that he had lied in pretrial depositions and at trial concerning one particular incident. That incident was reflected in a finding of fact by the trial judge. When the perjury was reported to the judge, he struck that particular finding but indicated that he would continue to credit the plaintiff’s testimony. The Fourth Circuit reversed. It held that the trial court should have conducted a plenary hearing on the matter to find out how pervasive the perjury was. The appellate court noted that there could have been other falsifications by the plaintiff.

Phillips dealt with a situation where there was an admission of perjury. Still, in a case closer to the facts of this one, Tas Int. Travel Service, Inc. v. Pan American World Airways, Inc., 96 F.R.D. 205 (S.D.N. Y.1982), the Court chose to follow the holding of Phillips by ordering an evidentiary hearing. In Tas, the Defendant, the loser at trial, moved for a new trial. It submitted two affidavits alleging that the principal of one of the plaintiffs testified falsely. The plaintiffs’ witness, in a counter-affidavit, denied the charge. The court, citing Nederlandscke Handel-Maatschappij, N.V. v. Jay Emm, Inc., 301 F.2d 114 (2d Cir.1962), declared that the movant “must demonstrate its contentions by clear and convincing evidence.” Tas, 96 F.R.D. at 206. Because the plaintiffs’ witness denied the perjury accusation, the court found that this standard had not been met. Yet, the court did find that the affidavits made a threshold showing adequate to warrant an evidentiary hearing. On a matter relevant to the question at hand, the Tas court also noted that the due diligence requirement applicable to motions under Rule 60(b)(2) (dealing with motions based on newly discovered evidence) was inapplicable to motions based on alleged perjurious testimony under Rule 60(b)(8).

The Court finds the accusations here to be serious enough to warrant an evidentiary hearing. To better define the scope of the hearing and to provide notice to the Defendant and the witnesses, the Plaintiff is ORDERED to submit within fourteen days of the date this Order is entered an affidavit carefully detailing the grounds which lead it to believe that the testimony of Huffman and Pethel was knowingly false. The Plaintiff is further ORDERED to supply relevant portions of the trial transcript to the opposing party and the Court no later than seven days prior to the evidentiary hearing. The Plaintiff should make arrangements, at its expense, to obtain the transcript from the Reporter of this Court. Moreover, the Plaintiff is charged with assuring the presence of Huffman and Pethel at the hearing.

The evidentiary hearing made necessary by the perjury allegations shall be of a twofold nature. The Court will also take up the matter of the “newly discovered evidence.” The Court admonishes the parties that the evidentiary hearing, in both phases, will not constitute a trial itself. It will be limited in scope and purpose. With regard to the claim of newly discovered evidence, the Plaintiff must show that it failed to discover the evidence before trial although it exercised due diligence. Con-tempo Metal Furniture Co. of California v. East Texas Motor Freight Lines, Inc., 661 F.2d 761 (9th Cir.1981); Lloyd v. Gill, 406 F.2d 585 (5th Cir.1969); Royal Air Properties, Inc. v. Smith, 333 F.2d 568 (9th Cir.1964); Stiers v. Martin, .277 F.2d 737 (4th Cir.1960), and was excusably ignorant. Owens v. International Paper Company, 528 F.2d 606 (5th Cir.1976). The newly discovered evidence must be of facts existing at the time of trial. Contempo, 661 F.2d 761. The evidence must also be of such nature that it is likely to lead to a different result. Washington Mobilization Committee v. Jefferson, 617 F.2d 848 (D.C.Cir.1980); Lloyd, 406 F.2d 585. And evidence which is mostly cumulative, corroborative or contradictory of other evidence adduced at the trial will not suffice for the awarding of a new trial. Lloyd, 406 F.2d 585.

To reemphasize, the evidentiary hearing on the new evidence claim will be directed toward the above points. It will not be an exercise concerned directly with the merits of the case. A scheduling order will soon be issued informing counsel of the hearing date. At the conclusion of the hearing, or soon thereafter, the Court will make a decision on the Plaintiffs motion for a new trial.


author: VARNER, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Thomas Gordon HARPER, Defendant.
    Cr. No. 84-179-N.
    United States District Court, M.D. Alabama, N.D.
    Jan. 13, 1986.

      Thomas Gordon Harper, pro. se.
    Charles Trúncale, Asst. U.S. Atty., Montgomery, Ala., for U.S.
    Benjamin E. Pool, Montgomery, Ala., for defendant, Harper.
   OPINION

VARNER, District Judge.

This cause is submitted on Defendant Harper’s motion filed herein November 18, 1985, to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 to correct the alleged errors in his conviction and sentence for his involvement in a plane load of marijuana which was brought into the United States. His conviction and sentence were affirmed on appeal, 775 F.2d 302, (11th Cir.1985).

Section 2255 provides that a custodial prisoner under sentence of a federal court may move to vacate, set aside or correct a sentence which is subject to collateral attack. Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States Attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. But the trial court may entertain and determine such motion without requiring the production of the prisoner at the hearing.

Defendant Harper asserts that counsel was ineffective at his trial and on appeal; that an erroneous jury instruction was given at the trial (apparently that the Court gave an affirmative charge against the Defendant on a conspiracy count); that he was not advised of his right to be free from self-incrimination; and that the trial court violated his due process rights by allegedly having an improper communication with the jury. None of these matters were raised at the trial or on appeal.

Generally, nonconstitutional claims which could have been, but were not, raised on appeal may not be asserted in collateral proceedings. United States v. Capua, 656 F.2d 1033, 1036-38 (5th Cir. 1981); United States v. Addonizio, 442 U.S. 178, 184, 99 S.Ct. 2235, 2239, 60 L.Ed.2d 805 (1979); United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 1593, 71 L.Ed.2d 816 (1982). In Frady, supra, the Supreme Court stated:

“To obtain collateral relief based on trial errors to which no contemporaneous objection is made, a convicted defendant must show both (1) ‘cause’ excusing his double procedural default, and (2) ‘actual prejudice’ resulting from the errors of which he complains.” Frady, 456 U.S. at 167-68, 102 S.Ct. at 1594-95.

This Court, therefore, concludes that a defect to be subject to review under § 2255 must have, been raised on direct appeal or there must have been good cause for not having raised it and actual prejudice resulting from the error. Additionally, the error must have been unconstitutional or it must have involved fundamental rights.

If ineffective assistance of counsel is claimed, there is a particular reason for studying the question of whether there is cause excusing the failure to raise any alleged defect in the trial. The Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), recognized two requisites of an ineffective assistance of counsel claim. First, the defendant must show that the counsel’s performance was deficient in that errors, so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment, occurred and, second, the defendant must show that the deficient performance prejudiced the defense. No such showing is made by Defendant Harper even in allegations in his motion. In fact, the allegations are too vague to inform the Court of the Defendant’s contentions. The files and records of the case show clearly that the defense counsel pursued the case carefully and with diligence. The Supreme Court has made clear in Strickland and on other occasions that the right to counsel does not guarantee successful counsel nor does it guarantee counsel without error. The record in this case on both trial and appeal shows that counsel was more than reasonably efficient in pursuing the matters submitted to the Court. The Defendant makes no claim that counsel did not submit anything that Defendant suggested to him. This Court is, therefore, of the opinion that the files and records in this Court show clearly that the Defendant has not met the strict standards of Strickland v. Washington, supra, for obtaining relief from ineffective assistance of counsel.

Defendant Harper complains that the Court erroneously instructed the jury to the effect that the Defendant was guilty of one of the conspiracy counts. Apparently, Defendant is complaining of the instruction on conspiracy law at pages 366 and 367 of the trial transcript. If the charge were error, it was not raised on direct appeal, and should have been. While the Defendant does not make clear his contention as to the error in the charge, it appears that Defendant insists that the Court instructed the jury that the Defendant was guilty of one of the conspiracy counts, and this Court cannot understand such a contention. If Defendant is suggesting that the Court, off the record, so charged the jury, no such thing happened and off the record communications are treated hereinafter.

The Defendant contends that he was neither advised of, waived nor had knowledge of his Fifth Amendment rights and contends that the trial court erred in “admonishing him” of his rights. This allegation seems to be interwoven with the contention that Defendant had no knowledge that extrinsic evidence and a tape recording were incriminating; that he did not waive any right knowingly, intelligently or voluntarily; and that he had no knowledge that his testimony was necessary or that the conduct of his attorney was ineffective. The record shows that the Defendant was informed of his right not to testify and that his attorney discussed the matter thoroughly with him. It is not suggested that the trial court, at Defendant’s arraignment, did not inform him of his Fifth Amendment privileges. The record shows that the evidence in the case was strong against the Defendant and that his statement made to an undercover investigator indicated that Defendant had recently lost a shipment of about 1,000 pounds in Georgia, together with the plane, pilot and other personnel; and that Defendant, himself, after the undercover agent had testified to the conversation, offered the tape in an effort to explain his statements made in the conversation. The files and records further show that the Defendant himself took the stand in his own defense and, as stated by the Eleventh Circuit Court of Appeals, while:

“ * * * the Fifth Amendment stands as a sentinel for the protection of a defendant’s constitutional right to remain silent * * *, the right is not self-executing * *. When a defendant voluntarily testifies, he waives his Fifth Amendment right and places himself in the same position
as any other witness, subject to cross-examination as to matters revealed in his direct testimony * * McGahee v. Massey, 667 F.2d 1357, 1362 (11th Cir.), cert.den. 459 U.S. 943, 103 S.Ct. 255, 74 L.Ed.2d 199 (1982).

The purpose of informing the Defendant at arraignment of his Fifth Amendment privileges is to inform him that he “has the choice at the outset, unhurried and with full knowledge that all questions will relate to his incrimination * * VIII WIG-MORE, § 2276 (1961). See, also, Harrison v. United States, 392 U.S. 219, 222, 88 S.Ct. 2008, 2010, 20 L.Ed.2d 1047 (1968). The records and files show no error relating to the Fifth Amendment privilege.

The Defendant contends that the trial court committed reversible error by entering the jury room and having a dialogue with the jury without the Defendant, counsel or a court reporter present. This allegation was not raised on direct appeal, and no such conversation is recalled by this Court. This Court, however, has been extremely sensitive about conversations with the jury since United States v. Holland, 620 F.2d 299 (5th Cir.1980), in which the Court of Appeals reversed this Court for answering a written question from the jury outside of the presence of Defendant, after having discussed the question and the proposed answer with the attorneys in the presence of the defendant and having asked the attorneys in the presence of their clients whether anyone had any objection to the Court’s giving the simple direct answer to the question to the jury outside of the presence of the defendants and their counsel. That Court made clear that such a conversation violated the defendant’s rights to a public trial and to a record of the trial. That opinion, however, was on direct appeal rather than on petition for writ of error coram nobis and that Court did not consider the question of waiver.

As pointed out by the Government, it appears that, since Holland, the United States Supreme Court has pointed out that such a communication and the right to have it public and transcribed can be waived. Rushen v. Spain, 464 U.S. 114, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983); United States v. Gagnon, 470 U.S.-,-, 105 S.Ct. 1482, 1486, 84 L.Ed.2d 486, 492 (1985). In Rushen, the Court pointed out:

“When an ex parte communication relates to some aspect of the trial, the trial judge generally should disclose the communication to counsel for all parties. The prejudicial effect of a failure to do so, however, can normally be determined by a post-trial hearing. The adequacy of any remedy is determined solely by its ability to mitigate constitutional error, if any, that has occurred.” 464 U.S. at 118-120, 104 S.Ct. at 456.

As early as 1969, the Court of Appeals for the Fifth Circuit in Houston v. United States, 419 F.2d 30, recognized the right to waive any objections to such a communication. It further pointed out that failure to raise such an issue on trial or on appeal effectively barred the defendant from raising such an objection under 28 U.S.C. § 2255. See, also, United States v. Gallo, 763 F.2d 1504, 1531 (6th Cir.1985); United States v. Head, 697 F.2d 1200, 1203 (4th Cir.), cert.den. 462 U.S. 1132, 103 S.Ct. 3113, 77 L.Ed.2d 1367 (1983); and United States v. Woodner, 317 F.2d 649, 652 (2nd Cir.1963), wherein the Court stated the following:

“We have enough confidence in the integrity and fairness of the District Judge to assume that they will not make unfair remarks to jurors while undertaking administrative duties of this nature.”

This Court is, therefore, of the opinion that Defendant Harper’s nonconstitutional errors are not cognizable in a collateral attack under 28 U.S.C. § 2255 and that his alleged constitutional errors are without merit. Accordingly, Defendant Harper’s motion for relief pursuant to 28 U.S.C. § 2255 will be denied.

An Order will be entered in accordance with this Opinion.

      . Here, prejudice is difficult to prove. Defendant, himself, made braggadocio statements to an undercover agent concerning his interest in a seized aircraft and its contraband load under circumstances which probably could not have been known to Defendant unless he held such an interest.


author: BRITT, Chief Judge.

text:
    COMPUTERWARE, INC., t/a The Computerware Store, Plaintiff, v. Joseph B. KNOTTS, et al., Defendants.
    No. 85-177-CIV-4.
    United States District Court, E.D. North Carolina, New Bern Division.
    Jan. 13, 1986.

      John D. Warlick, Jr., Ellis, Hooper, War-lick, Waters & Morgan, Jacksonville, N.C., for plaintiff.
    Rudolf A. Renfer, Jr., Asst. U.S. Atty., Raleigh, N.C., for defendant.
   ORDER

BRITT, Chief Judge.

In this action questions of sovereign immunity and jurisdiction have put this case in an interesting legal posture. Plaintiff is a North Carolina corporation which maintains computer stores in Jacksonville and Havelock, North Carolina. Both stores are full-service dealerships for Apple Computer, Inc. The defendants are officers at the Marine Corps Bases at Camp Lejeune and Cherry Point, North Carolina. Plaintiff contends that (a) the list of approved items for sale at Post Exchanges was improperly amended to include home computers, and (b) even if the list of approved items was properly amended, the defendants have exceeded their authority by selling business computers and computers manufactured outside the United States. On 6 December 1985 plaintiff filed its complaint and motion for preliminary injunctive relief, to which the defendants responded and filed a motion to dismiss. On 12 December 1985 a hearing was held on plaintiffs preliminary injunction motion. By order dated 16 December 1985 the court denied plaintiff’s preliminary injunction motion on the basis that plaintiff had failed to establish a reasonable probability of success on the jurisdiction question. The court gave plaintiff ten days to file a response to the defendants’ motion to dismiss. Plaintiff submitted a response to the defendants’ motion to dismiss and renewed its motion for preliminary injunctive relief, to which the defendants have submitted a reply. This matter is now ripe for ruling.

As an initial matter the court will grant the defendants’ motion to dismiss plaintiff’s claim that the list of approved items was improperly amended to include home computers. The amendments to the list of approved items was made by the House of Representatives’ Committee on Armed Services, not by the Department of Defense or the defendant officials. Therefore, this claim is dismissed. The court finds, however, that it does have jurisdiction over plaintiff’s claim that the defendants have exceeded their authority by selling business computers and computers manufactured outside the United States.

The initial roadblock for plaintiff in bringing this action was to frame the complaint in such a way as to confer jurisdiction on this court yet avoid the federal government’s sovereign immunity. Plaintiff chose to rely on a string of cases which stood for the proposition that federal officials could not hide behind the government’s sovereign immunity if they acted in excess of their statutory authority. See Colorado v. Toll, 268 U.S. 228, 45 S.Ct. 505, 69 L.Ed. 927 (1925). The problem with this approach is that a showing that the defendants’ acts are wrongful or erroneous is not sufficient to demonstrate that they are outside the scope of their authority. See 14 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3655 at 226 (1985). In this case the defendants are authorized by the Armed Services Committee to sell items of merchandise at Post Exchanges. The defendants may be acting “erroneously” by selling certain items that are not on the “approved list,” but they are acting well within the scope of their authority. Moreover, the defendants’ decision to sell the items at issue in this case has been approved by the defendants’ superior officials.

Plaintiff now contends that the sale of computers at Post Exchanges in violation of Armed Services Exchange Regulations (ASER) is agency action reviewable pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq., and 28 U.S.C. § 1331. The court agrees. Prior to 1976 28 U.S.C. § 1331 could not be used as a jurisdictional basis to review administrative action where no monetary relief was sought. In order to avoid the inequities which often resulted seven circuits, including the Fourth Circuit, held that the Administrative Procedure Act was an independent grant of jurisdiction to review agency action. See, e.g., Deering Milliken, Inc. v. Johnston, 295 F.2d 856 (4th Cir.1961). In 1976 Congress amended 28 U.S.C. § 1331 to eliminate the $10,000 amount in controversy requirement. The effect of this amendment was to confer jurisdiction on federal courts to review agency action, thus undercutting the rationale for interpreting the Administrative Procedure Act as an independent grant of jurisdiction. One year later the Supreme Court specifically held that the Administrative Procedure Act was not an independent grant of jurisdiction. See Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977).

The next question is whether this suit is barred by the government’s sovereign immunity. The first circuit to address the question held that the Administrative Procedure Act “did not remove the defense of sovereign immunity in actions under § 1331.” See Watson v. Blumenthal, 586 F.2d 925, 932 (2d Cir.1978). Every other circuit to address the question has held that the Administrative Procedure Act does waive the government’s sovereign immunity. See, e.g., Jaffee v. United States, 592 F.2d 712 (3d Cir,), cert. denied, 441 U.S. 961, 99 S.Ct. 2406, 60 L.Ed.2d 1066 (1979). The court agrees with this majority view. As the House Report shows, Congress amended 5 U.S.C. § 702 with the specific purpose of waiving sovereign immunity in “non-statutory” review of agency action under section 1331. See H.R.Rep. No. 94-1656, 94th Cong., 2d Sess. 5, reprinted in 1976 U.S.Code Cong. & Admin.News 6121, 6125 (hereinafter House Report). These suits are called “non-statutory” because they are not brought under statutes that specifically provide for review of agency action. The House Report notes that the acts of the older executive departments, such as the Department of Defense, are subject to judicial review only through “non-statutory” suits under section 1331. Id.

The defendants argue that the Administrative Procedure Act is inapplicable because (a) there has been no “agency action,” and (b) this is a suit against individuals, not a federal agency. This argument lacks merit for several reasons. First, Marine Corps Post Exchanges are “agencies” within the meaning of the Administrative Procedure Act. See Ellsworth Bottling Co. v. United States, 408 F.Supp. 280, 282 (W.D.Okla.1975). Second, the regulations at issue in this case are sufficiently formal to provide a proper basis for a suit in federal court. See Chasse v. Chasen, 595 F.2d 59, 61 (1st Cir.1979). Third, plaintiff has standing to obtain judicial review of the defendants’ action. The challenged action has caused an identifiable injury and plaintiff is a “local dealer” within the class of persons the Exchange Regulations are designed to protect. See Ells-worth Bottling Co. v. United States, 408 F.Supp. at 282. Fourth, plaintiff has exhausted its administrative remedies to the extent that it may do so. There is no formal procedure for plaintiff to contest the defendants’ alleged abuse of discretion under the Exchange Regulations, but the president of the plaintiff corporation has written letters to Marine Corps officials who have made it clear that the Post Exchanges will continue selling the items complained about by plaintiff.

Finally, plaintiff has brought suit against the appropriate officials. Section 703 of the Administrative Procedure Act was amended in 1976 to remove any uncertainty as to who may be named as a defendant when the United States is sued. See 5 U.S.C. § 703. “When an instrumentality of the United States is the real defendant, the plaintiff should have the option of naming as defendant the United States, the agency by its official title, appropriate officers, or any combination of them. The outcome of the case should not turn on the plaintiff’s choice.” See House Report at 6138. Therefore, this action has been properly brought under the Administrative Procedure Act, and the defendants’ motion to dismiss must be denied.

In ruling on the plaintiff’s renewed motion for preliminary injunctive relief the court must examine the factors set forth in Blackwelder Furniture Co. v. Seilig Manufacturing Co., 550 F.2d 189, 193 (4th Cir. 1977). A party seeking injunctive relief must establish: (1) that there is a substantial likelihood that it will prevail on the merits; (2) that, in the absence of the requested relief, there is a substantial threat that it will suffer irreparable injury; (3) that the threatened injury to the moving party outweighs the threatened harm to the non-moving party; and (4) that the requested relief will not disserve the public interest. Id.

The court finds that there is a substantial likelihood that plaintiff will prevail on the merits of at least part of its complaint. The court will just briefly summarize the factual findings set forth in the 16 December 1985 order. The “approved list” of merchandise that may be sold at Post Exchanges, as amended, specifically excludes computers “oriented toward the office or business environment,” and “computers produced and/or manufactured” by other than “U.S. sources.” In selling the Macintosh computer system the defendants appear to be violating the first of these limitations. Plaintiff has submitted several brochures and advertisements by Apple Computer, Inc., which indicate that the Macintosh computer system is “oriented toward the office or business environment.” The defendants have responded with affidavits to the effect that there is an informal agreement between Department of Defense officials and the Armed Services Committee that all computers which sell for less than $5,000 are to be considered “home computers.” There is no such interpretation set forth in the Exchange Regulations or in any correspondence from the Armed Services Committee submitted to the court. Thus, the court must rely on the brochures and advertisements of Apple Computer, Inc., which indicate the Macintosh computer system is “oriented toward the office or business environment.”

The second limitation, that computers “produced and/or manufactured of U.S. sources are to be used to meet the demand for these products,” is extremely vague. It is unclear what distinction can be made between the terms “produced” and “manufactured.” More importantly, plaintiff has not convinced the court that “U.S. sources” refers to manufacturing facilities located within the United States, rather than to domestic companies which may have manufacturing facilities in foreign countries. For example, the Apple He computer is manufactured in Singapore by a subsidiary of Apple Computer, Inc., and is then shipped to the United States for sale in this country. The court concludes that the “U.S. sources” limitation does not prohibit the sale of computers and accessories which are manufactured abroad by domestic companies or their subsidiaries. The “U.S. sources” limitation does, of course, prohibit the sale of computers and accessories manufactured outside the United States by companies which are not subsidiaries of domestic companies.

The court is aware of the fact that the Armed Services Committee may at any time amend the “approved list” to allow Post Exchanges to sell computers which are (a) “oriented toward the office or business environment,” and (b) produced and manufactured by foreign companies. Likewise, it is within the discretion of the Secretaries of the Military Departments to authorize deviations from the “approved list.” See ASER 1-102. That discretion must be exercised, however, within the bounds of the applicable regulations. ASER 1-102 specifies that “[deviations shall be authorized only after judicious review and granted primarily on the basis of geographical isolation of the installation concerned.” Id.

The three remaining Blackwelder factors weigh in plaintiff’s favor. First, with regard to the threat of irreparable injury to plaintiff the court notes that the busy Christmas season has ended. Nevertheless, whatever damage plaintiff continues to suffer is irreparable due to the government’s immunity to a subsequent damages award. Second, the potential harm to the defendants is minimal. Third, the public interest lies in favor of plaintiff.

In summary, the defendants’ motion to dismiss is granted as to the plaintiff’s claim that (a) the list of approved items for sale at Post Exchanges was improperly amended to include home computers, and denied as to plaintiff’s claim that (b) defendants have exceeded their authority to selling business computers and computers manufactured outside the United States. Plaintiff’s renewed motion for preliminary injunctive relief is granted in part and denied in part. The defendants and all those in active concert and participation with them are hereby enjoined, pending further orders of this court, from authorizing or permitting the sale of the following items at the Marine Corps Post Exchanges at Camp Lejeune and Cherry Point, North Carolina: (a) The Macintosh computer system and all other computers and accessories “oriented toward the office or business environment;” and (b) all computers and accessories which are manufactured outside the United States by companies which are not subsidiaries of United States companies.

The plaintiff is hereby ordered to post a bond in the amount of $10,000 within five days from the date of this order.


author: YOUNG, District Judge.

text:
    David M. LERGUX and Theresa M. Leroux, Plaintiffs, v. The LOMAS & NETTLETON CO., American Bankers Insurance Company of Florida, and Stark, Johnson & Stinson, Inc., Defendants.
    Civ. A. No. 85-0012-Y.
    United States District Court, D. Massachusetts.
    Jan. 14, 1986.

      Norman F. Lazarus, Bernstein & Lazarus, Boston, Mass., for plaintiffs.
    Thomas J. Daugherty, Skadden, Arps, Slate, Meager & Flom, Boston, Mass., John C. Fricano, Skadden, Arps, Slate, Meagher & Flom, Washington, D.C., for defendants.
   MEMORANDUM AND ORDER

YOUNG, District Judge.

The plaintiffs, David and Theresa Leroux (“the Lerouxs”) bring this action against defendants The Lomas & Nettleton Co. (“Lomas”), American Bankers Insurance (“American Bankers”), and Stark, Johnson & Stinson, Inc. (“Stark”) in a complaint filed January 2, 1985.

The Lerouxs allege that, without their knowledge or consent, the three defendants made various transfers of their home owners insurance policy. These transfers left the Leroux dwelling, appurtenant structures, and personal property inadequately insured against loss by fire. The Lerouxs also allege a loss of coverage for additional living expenses. As a result, the Lerouxs charge each defendant with breach of Mass.Gen.Laws ch. 93A, breach of contract, negligence, and deceit. The Lerouxs assert subject matter jurisdiction based on diversity of citizenship with an amount in controversy for each Count in excess of $10,000.

Beyond the merits of the matter, the procedural conflicts are significant. On February 28, 1985, defendants Lomas, American Bankers, and Stark moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(1), lack of subject matter jurisdiction; 12(b)(6), failure to state a claim upon which relief may be granted; and 9(b), failure to plead fraud with particularity. The defendants also moved for an award of costs and expenses pursuant to Fed.R.Civ.P. 11.

Approximately a week later, on March 7, 1985, the Lerouxs voluntarily dismissed party defendant Stark pursuant to Fed.R. Civ.P. 41(a)(l)(i). On the same date, Le-roux served a copy of the Notice of Dismissal on defendants’ counsel. Voluntarily and as a matter of right, the Lerouxs purport to dismiss only those counts against defendant Stark: Counts III, VI, IX and XII. By this method, the Lerouxs seek to cure a defect in diversity while preserving the core of their complaint against the other two defendants.

I. Factual Background

Based on the averments in the Complaint and accepted as true for purposes of this motion only, the Lerouxs assert the following facts. Until October 24, 1982 the Lerouxs owned and occupied a residence at 30 Topeliff Street, Billerica, Massachusetts. This home was mortgaged to the Veterans Administration and insured with the Hanover Insurance Company, 1400 Mechanics National Tower, Worcester, Massachusetts. The Lerouxs made monthly payments for principal, interest, real estate taxes and home insurance on this residence to the mortgagee, Lomas, apparently through Marshall Q. Trubey Insurance Co. in Lowell, Massachusetts.

At some time during the first six months of 1978, Lomas purchased or assigned the Lerouxs’ mortgage without notifying them. On or about December 5, 1978, the Lerouxs received a “Notice of Cancellation” from Hanover Insurance Co., alleging non-payment of premium. Despite the Lerouxs’ regular monthly payments for mortgage, interest, taxes and insurance, Lomas unilaterally and without the Lerouxs' consent placed the Lerouxs’ homeowners insurance with American Bankers through Stark. From 1978 to 1982, American Bankers and Lomas had a continuing business relationship in which a substantial number of homes mortgaged to or serviced by Lomas were insured with American Bankers.

On or about May 4, 1981, Lomas substituted a fire and extended coverage policy (Form DP-1) for the Lerouxs’ existing and standard H03 homeowners policy. The standard policy covered the dwelling, appurtenant structures, personal property, and additional living expenses.

The Lerouxs had no knowledge of this policy change because neither Lomas nor American Bankers sent notice of the change by certified mail, allegedly required by law. Apparently, notice sent by regular mail on or about April 9, 1982 failed to reach them. The Lerouxs assert that Lo-mas knew or should have known that the new plan was not a homeowners policy as defined by the Commonwealth of Massachusetts Insurance Commission.

On October 24, 1982, the Lerouxs’ home at 30 Topcliff Street in Billerica was totally destroyed by fire. In addition to the residence, the Lerouxs lost all family possessions and an in-ground swimming pool. When the Topcliff home was destroyed, the Lerouxs suffered financial and emotional distress because of their inadequate insurance coverage. According to the Lerouxs’ complaint, the actions of Lomas, American Bankers, and Stark constitute breach of contract, negligence, deceit, and breach of Mass.Gen.Laws ch. 93A.

As a result of the October 24th fire, the Lerouxs moved to a new home at 34 Manomet Avenue, Hull, Massachusetts, where they currently reside.

II. Jurisdiction

The Court will treat paragraph six of the Lerouxs’ complaint as invoking the subject matter jurisdiction of this Court based on diversity of citizenship. On the facts alleged above, the Court accepts as true for purposes of this motion that the Lerouxs are citizens of Massachusetts, despite the use of the word “reside” and “resident” in the complaint.

Also accepted as true for purposes of this motion, Lomas is a duly organized Connecticut corporation with its principal place of business at 230 George St., New Haven, Connecticut. Beyond this, Lomas is a wholly owned subsidiary of Lomas & Nettleton Finance Corporation, a duly organized Delaware corporation with its principal place of business at 2001 Bryan Tower, Dallas, Texas. American Bankers is part of the American Bankers Insurance Corporation with its principal place of business at 600 Brickell Avenue, Miami, Florida. Finally, Stark is a duly organized Massachusetts corporation with its business offices at 32 Franklin Street, Worcester, Massachusetts.

For purposes of this motion only and based on these facts, the Court concludes that Lomas and American Bankers are not citizens of Massachusetts and, as such, are properly diverse in citizenship to the Lerouxs.

If the Lerouxs are to assert subject matter jurisdiction based on diversity of citizenship, however, the diversity must be complete as to all parties. Strawbridge v. Curtiss, 3 Cranch 267, 7 U.S. 267, 2 L.Ed. 435 (1806). Yet, on the very face of the complaint the Lerouxs assert facts which establish that Stark, one of the party defendants, is not diverse. Therefore, as of the filing of the complaint on January 2, 1985, as well as on the date which the defendants filed their several motions to dismiss, February 28, 1985, a jurisdictional defect blemished the Lerouxs’ complaint because both party defendant Stark and party plaintiffs Lerouxs were citizens of Massachusetts.

Absent the Lerouxs’ March 8, 1985 Notice of Dismissal or other corrective amendment, this Court would have been required to allow the Lomas’ motion to dismiss pursuant to 12(b)(1). However, the Court rules that the Notice of Dismissal appropriately rectified the jurisdictional defect by dropping the non-diverse party in a timely manner. In so holding, the Court has considered and answered the following questions:

1. Can a Notice to Dismiss be utilized to drop the one nondiverse party and thus cure a jurisdictional defect?
2. Is a Notice to Dismiss dated after the filing of the motions to dismiss on February 28, 1985 proper?
3. Will a proper Notice to Dismiss cure a jurisdictional defect retroactive to the date of the filing of the complaint?

The Court answers all of these questions affirmatively.

III. Fed.R.Civ.P. 41(a)(l)(i)

First, can a Notice of Dismissal be utilized to drop the one nondiverse party and thus cure a jurisdictional defect?

Lomas alleges that, where Rule 41 speaks of an “action,” the Rule means the entire controversy. In this, Lomas relies primarily on Harvey Aluminum, Inc. v. American Cyanamid Co., 203 F.2d 105, 107-08 (2d Cir.), cert. denied, 345 U.S. 964, 73 S.Ct. 949, 97 L.Ed. 1383 (1953) which states: “[R]ule 41(a)(1) provides for the voluntary dismissal of an ‘action’ not a ‘claim’; the word ‘action’ refers to what has traditionally been termed ‘cause of action’.” Id. at 108. Lomas’ reliance is misplaced.

The Second Circuit itself has, however, limited Harvey Aluminum to its facts. Thorp v. Scarne, 599 F.2d 1169, 1172-77 (2nd Cir.1979). In limiting Harvey Aluminum, the Second Circuit in Thorp pointed to an extensive, several day evidentiary hearing as an “extreme” which explained why the court prohibited the plaintiffs’ dismissal of one among several defendants. Id. at 1172-1176. Significantly, another judge of this court has squarely rejected Harvey Aluminum. Terry v. Pearlman, 42 F.R.D. 335, 337 (D.Mass.1967) (Where a temporary restraining order enjoined a bank and trust company and plaintiff filed notice of dismissal of the action against all defendants who had not filed an answer, the court denied a motion to vacate the notice of dismissal).

Relying upon Terry v. Pearlman, this Court holds that, where Rule 41 speaks of an “action,” this means all of the claims against any one defendant, and not necessarily all of the claims against all defendants. Terry v. Pearlman, 42 F.R.D. 335, 337 (D.Mass.1967). See also Plains Growers, Inc. v. Ickes-Brown Glasshouses, Inc., 474 F.2d 250, 254-55 (5th Cir.1973) (Where the court compared dismissal by notice and dismissal by motion under the two prongs of Rule 41, it concluded that “it was intended by the rule makers to permit dismissal against such defendants as have not served an answer or motion for summary judgment, despite the fact that the case might remain pending against the other defendants.”) Id. at 225. In holding that Rule 41 is an appropriate procedure to dismiss defendant Stark, the Court also looks to Graphic Realty & Discount Co. v. Home F. & M. Ins. Co. of Cal., 193 F.Supp. 421, 422 (D.Mass.1961). There the court allowed plaintiffs to establish the requisite diversity by dismissing the action as against a defendant whose citizenship was the same as that of a plaintiff. Although the plaintiffs’ motion required leave of court pursuant to Rule 41(a)(2), the facts are similar:

While it is clear that complete diversity of citizenship of parties plaintiff from the citizenship of the parties defendants is necessary to the existence of federal jurisdiction, it is equally clear that if federal jurisdiction does not exist at the time of filing a complaint, it can be acquired by dismissing the action as to a defendant whose citizenship is the same as that of one or more of the parties plaintiff.

Id. at 422. [Citations omitted] See also Brown v. Texas & Pacific Railroad Co., 392 F.Supp. 1120,1123 (W.D.La.1975) (holding that a federal district court has the power to perfect its diversity jurisdiction by dropping the nondiverse party as long as the nondiverse party is not indispensable). The Court must take the Lerouxs at their word that Stark is “clearly a very dispensable party.”

Therefore, the Court rules Lerouxs’ dismissal of all claims against Stark appropriate pursuant to Rule 41(a)(l)(i). The dismissal of all counts against Stark is thus a proper method to cure the jurisdictional defect unless, of course, the Lerouxs’ Notice came too late.

Is a Notice to Dismiss dated after the filing of the motions to dismiss on February 28, 1985, proper? The answer to this question is critical, for the Lerouxs did not effectuate their dismissal of Stark until seven days after the defendants filed their motions to dismiss.

Rule 41(a)(l)(i) appears clear on its face— Notice of Dismissal may be filed “before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs.” The defendants did neither. In fact, the defendants’ motions are motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(1), 12(b)(6), and 9(b). The Court holds that, although there may be a point in legal proceedings where the purpose of Rule 41(a)(l)(i) would be better served by abandoning a literal interpretation, the instant case does not approach that point. Thorp, v. Scarne, 599 F.2d 1169, 1176 (2nd Cir.1979).

The Fifth Circuit has construed the relevant language in Rule 41. Where no answer had been filed but defendants had filed motions to dismiss under 12(b)(1) and 12(b)(6) before plaintiff filed his Notice of Dismissal, the Court ruled that because no affidavits or other matters outside the pleadings were submitted, the 12(b) motions were not converted to motions for summary judgment. Nix v. Fulton Lodge No. 2 of International Ass’n of Machinists & Aerospace Workers, 452 F.2d 794, 797-98 cert. denied, 406 U.S. 946, 92 S.Ct. 2044, 32 L.Ed.2d 332 (1972). In one case, even the presence of affidavits did not convert a 12(b) motion to dismiss into a motion for summary judgment. Terry v. Pearl-man, 42 F.R.D. 335, 337 (D.Mass.1967). But see Tele-Views Co. v. S.R.B. TV Publishing Co., 28 F.R.D. 303 (E.D.Pa.1961).

The Court agrees with the Fifth Circuit and construes the plain meaning of Rule 41(a)(l)(i) to mean that none of the defendants’ motions bar the Lerouxs’ voluntary dismissal of the defendant Stark.

The same result may be reached through an alternative route. If the Lerouxs’ Notice relates back to the date they filed their complaint, January 2, 1985, the defendants’ motion to dismiss for lack of subject matter jurisdiction is moot because the “relation back” cures the jurisdictional defect directly. On similar facts, the District Court of Louisiana ruled that to refuse plaintiffs the right to amend their petition in order to delete the nondiverse party would be an abuse of discretion. Brown v. Texas & Pacific Railroad Co., 392 F.Supp. 1120, 1124 (W.D.La.1975) (allowing plaintiffs to perfect jurisdiction by a release of a defendant and holding that the release would operate retroactively to the time of the filing of the complaint). Although the Lerouxs could have amended their complaint to drop Stark through either Rule 21 or Rule 41, neither rule expressly excludes application of the other; the use of either procedure is proper. Id. at 1124.

When the suit was voluntarily dismissed [as to all defendants but one] the amendment of the pleadings related to the date of filing of the original suit and cured the defect in the district court’s jurisdiction of the controversy between the remaining parties.' [Citations omitted]

Finn v. American Fire & Casualty Co., 207 F.2d 113 (5th Cii.1953), cited with approval, Brown v. Texas & Pacific Railroad Co., 392 F.Supp. 1120, 1125 (W.D.La.1975). Accordingly, the Court rules that, as an alternative ground of decision, the Lerouxs’ Notice of Dismissal relates back to January 2, 1985.

By either mode of analysis, this Court has subject matter jurisdiction. Moreover, insofar as this Court understands the policy behind rule 41(a)(1) to allow plaintiffs to dismiss as of right before the merits of the case have been reached or the issue joined, the Court rules the Lerouxs’ use of Rule 41(a)(1) correct.

IV. Rules 12(b)(6) and 9(b)

The foregoing analysis applies equally to Lomas’ motions to dismiss pursuant to 12(b)(6) and 9(b). At least one case applies this logic directly to a 12(b)(6) motion, specifically excluding it from the class of procedural bars in Rule 41 — answers or motions for summary judgment. Nix v. International Association of Machinists and Aerospace Workers, 452 F.2d 794, 797-98 (5th Cir.1972). The Court agrees and so rules.

Rule 9(b) is also a motion to dismiss. Just as the 12(b) motions, Rule 9 addresses preliminary matters normally adjudicated early in the litigation of a case. By the Federal Rules themselves, a Rule 9 motion may be asserted prior to a responsive pleading to effect the dismissal of the action. Therefore, the Court concludes that a Rule 9 motion to dismiss for failure to plead fraud with particularity is neither an answer nor a motion for summary judgment within the language of Rule 41. In reaching this conclusion, the Court reiterates that, although there may be a point in a legal proceeding where the purpose of Rule 41(a)(l)(i) would be better served by abandoning a literal approach, the instant case has not reached that point. Thorp v. Scarne, 599 F.2d 1169, 1176 (2d. Cir.1979).

In sum, the Court holds the Lerouxs’ Notice of Dismissal appropriate and not barred by the Lomas’ filing of motions to dismiss pursuant to Rules 12(b)(1), 12(b)(6), or 9(b) because 1) none of Lomas’ several motions are motions for summary judgment or answers within the limits of Rule 41, and 2) the dismissal relates back to the time the complaint was filed.

V. The Defendants’ Motions to Dismiss Considered on their Merits

A. Fed.R.Civ.P. 12(b)(6)

For purposes of a motion to dismiss, all averments of the plaintiff’s complaint are taken as true. See e.g., Gavrilles v. O’Connor, 579 F.Supp. 301, 303 (D.Mass. 1984). A court should not allow a motion to dismiss unless “it appears beyond doubt that the plaintiff can prove no set of facts in support of [their] claim which would entitle [them] to relief.” Id. at 303 (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 [1957]).

Here, the complaint alleges a series of events by which the Lerouxs found themselves with inadequate insurance to cover their losses when their home at 30 Topeliff Street in Billerica burned on October 24, 1982. Taking these allegations as true, the trier of fact could find that Lomas and American Bankers knowingly acted in a way to effect the cancellation of the Lerouxs’ proper insurance and leave them inadequately protected against loss by fire. Further, taking the Lerouxs averments as true, the trier of fact could find a breach of contract, violation of Mass.Gen.Laws ch. 93A, or that the defendants and their agents negligently failed to notify the Lerouxs or explain the new coverage to them. Finally, a trier of fact could find that the defendants or their agents actually made false representations about the scope of the insurance.

Under well accepted standards, the Court rules that the complaint avers a set of facts which would entitle the Lerouxs to relief. Defendants’ motion to dismiss pursuant to Rule 12(b)(6) is Denied.

B. Fed.R.Civ.P. 9(b)

It is well settled that Rule 9 requires specification of the time, place and content of an alleged false representation, but not the circumstances or evidence from which fraudulent intent could be inferred. Wayne Investment, Inc. v. Gulf Oil Corp., 739 F.2d 11, 13 (1st Cir.1984) (citing McGinty v. Beranger Volkswagen, Inc., 633 F.2d 226, 228 [1st Cir.1980]). This special pleading requirement provides the defendant with notice of the grounds on which plaintiff’s fraud claim rests. Id. at 13, citing McGinty v. Beranger Volkswagen, Inc., 633 F.2d at 228-29. The instant complaint contains sufficient specification of the time, place and content of the alleged false representation as to provide the defendants notice of the grounds on which the Lerouxs’ fraud claim rests. Therefore, the defendants’ motion to dismiss pursuant to Rule 9(b) is Denied.

VI. Fed.R.Civ.P.ll

The defendants also append a motion for the award of costs and expenses pursuant to Fed.R.Civ.P. 11. In relevant part Rule 11 provides:

[T]he signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other papers; that to the best of his knowledge, information and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing laws, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

The defendants point to the diversity defect in the Lerouxs’ complaint as grounds for Rule 11 sanctions, here costs and expenses. Lomas calls the Court’s attention to Blackwell v. Elsten, No. 84-169, slip op. at 8-9 (D.D.C. Dec. 11,1984) where, imposing sanctions, Judge Gessell noted “[P]laintiff deliberately attempted to manufacture diversity jurisdiction fraudulently, and that his complaint in its allegations of diversity was filed in bad faith and without a reasonable basis in law or fact.” Considering the complaint in context and as a whole document, this Court finds no evidence of sham or false allegations at the core of the recited legal injury. While the Lerouxs’ counsel may have been egregiously in error when he initially besought a federal forum, he appears to learn quickly, responding promptly and, as events have proved, skillfully, in managing to keep his clients’ case afloat. The Court thus rules that the Lerouxs’ conduct falls short of such misbehavior as makes the imposition of sanctions appropriate. Therefore, the defendants’ motion to award costs and expenses pursuant to Fed.R.Civ.P. 11 is Denied.

VII. Conclusion.

The Court has been mindful of the advice of Fed.R.Civ.P. 1 and 8: that the Court shall construe the scope of the rules “to secure the just, speedy and inexpensive determination of every action” and shall construe the pleadings themselves “as to do substantial justice.” Based on the discussion above, the defendants’ several motions are hereby DENIED.

      . The Lerouxs did not identify a particular subsection of Fed.R.Civ.P. 41 on their March 7, 1985, Notice of Dismissal. For purposes of this motion, the Court will act as if the Notice was filed under 41(a)(l)(i) for none of the other subsections apply, the Lerouxs’ dismissal being neither stipulated, Rule 41(a)(l)(ii), nor requiring court order, Rule 41(a)(2).

      . Although Lomas challenges the Lerouxs’ averments of corporate citizenship for their alleged lack of explicitness and specificity, such a challenge fails to reach the threshold of 'jurisdictional defect'.

      . The Lerouxs seem to allege that federal question jurisdiction also exists. Brief in Opposition to Defendants Motion to Dismiss at 5, March 11, 1985. The Court takes judicial notice of Lerouxs’ full statement: “As previously noted, the Plaintiffs allege that the subject Complaint raises a Federal question vis-a-vis the Federal Trade Commission Act and the Defendants' violation of a valid consent decree. However, this issue is now moot by the dismissal of the counts against SJ & J [Stark]." [Emphasis added.] But see "Furthermore, this case involves a substantial federal question involving the interpretation of the Federal Trade Commission Act and the Consent Decree signed by the defendants Lomas and Nettleton." The Court will not scrutinize this inconsistency at this time because the Court rules below that it has jurisdiction based on diversity of citizenship.

      . Lomas argues that, absent diversity, this Court lacks subject matter jurisdiction over the entire proceeding and, therefore, it cannot properly assert jurisdiction over a part, i.e. the Lerouxs’ Notice of Dismissal. There are two flaws here. First, if the Notice of Dismissal under Rule 41(a)(1) is a proper way to cure a jurisdictional defect (and was appropriately executed), this argument will fail. Even more fundamental, it is well-established that this Court may take jurisdiction in order to determine jurisdiction. United States v. United Mine Workers of America, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947).

      . Rule 41(a)(l)(i) of the Federal Rules of Civil Procedure provides, in pertinent part, that “an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs."

      . Lomas similarly relies on Smith, Kline & French Laboratories v. A.H. Robins Co., 61 F.R.D. 24, 28-29 (E.D.Pa.1973) ("Both Rules 41(a)(1) and 41(a)(2) apply by their terms to dismissal of an ‘action.’ The reference to an ‘action’ in Rule 41(a) contrasts with Rule 41(b), which provides that a defendant may move for dismissal of an action or of any claim against him____ Therefore, when Rule 41(a) refers to dismissal of an ‘action’, there is no reason to suppose that the term is intended to include the separate claims which make up an action. [Emphasis in original]). Lomas further relies on Neiman Marcus Co. v. Lait, 14 F.R.D. 159, 160-61 (S.D.N.Y.1953) (Where the court vacated plaintiffs’ Notice of Dismissal that was directed at some but not all defendants, the court noted, "A partial dismissal cannot be effected by mere notice. Rule 41(a) ..., relied upon as authority for such a dismissal ... permits it only where the subject is the entire action as distinguished from a claim against one or more but less than all of the defendants"). The Court rejects this analysis, relying instead on the sound logic of the District Court of Massachusetts discussed below.

      . Likewise, the treatise authorities reject Harvey Aluminum. “[T]he sounder view and the weight of authority" suggest that a single defendant may be dismissed even if other defendants remain in the case. C. Wrignt and A. Miller, Federal Practice & Procedure, Civil § 2362 at 149-150 (1971). "Whether the elimination of the nondiverse party is based on Rule 15(a), Rule 21, Rule 41(a) or the inherent powers of the federal court, a proper result is reached." 5 J. Moore, W.L. Lucas & J. Wicker, Moore’s Federal Practice, ¶ 41.06-1 (2nd ed. 1985).

      . While the defendants were not required to file an answer — and the several motions are formally proper, the Court notes that had the motions been part of an answer, the Lerouxs’ Notice of Dismissal would have been barred.

      . In Nix, however, plaintiff dismissed by stipulation under Rule 41 rather than unilaterally.