author: JOSÉ A. CABRANES, District Judge:

text:
    Galen KELLY and Helga Kelly v. DEERE & COMPANY.
    Civ. No. H-85-564 (JAC).
    United States District Court, D. Connecticut.
    Jan. 28, 1986.

      M. Katherine Webster-O’Keefe, Cohen & Kessler, New Milford, Conn., for plaintiffs.
    James G. Geanuracos, Jeffrey L. Williams, Joseph F. Skelley, Jr., Skelley, Clifford, Vinkels, Williams & Rottner, P.C., Hartford, Conn., for defendants.
   RULING ON MOTION TO STRIKE

JOSÉ A. CABRANES, District Judge:

This matter is before the court on the plaintiffs’ motion to strike the defendant’s fourth special defense to the first and second counts of the complaint.

The defendants contends in its fourth special defense that

[pjlaintiff intentionally operated the wood splitter in the manner which it was operated on the date of his injury, and thereby assumed the risk of sustaining the injuries of which he complained.

See Answer (filed Nov. 25, 1985) at 3, 4. The plaintiffs seek to strike this defense, pursuant to Rule 12(f), Fed.R.Civ.P., on the ground that “assumption of risk is not a viable defense to a product liability action under the Connecticut Product Liability Law.” See Motion to Strike (filed Dec. 11, 1985) at 1.

The Connecticut Product Liability Act, C.G.S. § 52-572m et seq. (“the Act), while providing that contributory or comparative negligence shall not constitute a defense to a product liability claim, states that “nothing in this section shall be construed as barring ... the defense of knowingly using the product in a defective conditiqn.” C.G.S. § 52-5721.

This defense is narrower than the common-law defense of assumption of the risk, which bars recovery

when a person knows or as a reasonable person should know that in pursuing a certain course he will expose himself to the risk of injury, comprehends or ought as a reasonable person to comprehend the nature and éxtent of the risk and voluntarily subjects himself to it.

Nally v. Charbonneau, 169 Conn. 50, 53, 362 A.2d 494 (1975) (emphasis added). The defendant does not suggest, much less offer any evidence of, a legislative intent to deny recovery under the Act to plaintiffs who had no actual knowledge of product defects but who reasonably should have possessed such knowledge. Indeed, a contrary intent is indicated by the express statutory language providing a defense against “knowing” use of a defective product and eliminating the defenses of contributory and comparative negligence in product liability actions.

Furthermore, a frequent commentator on the Act has adopted the view that the defense of assumption of the risk applies only to plaintiffs who knowingly used a defective product:

As a general rule, there must be a voluntary acceptance of a known risk by the claimant before the defense of assumption of risk will apply. The defense must establish not only that the claimant knew of the risk, but also that the claimant appreciated the risk and nevertheless voluntarily proceeded to encounter it.... [T]he standard of the reasonably prudent person has little relevance in determining whether the defense of assumption of risk applies.

Yules, Defenses in a Connecticut Product Liability Case, 57 Conn.BJ. 441, 447-448 (1983) (footnotes omitted).

The fourth special defense does not allege that one or both of the plaintiffs knew of the alleged defect in the defendant’s wood splitter at the time of the events that gave rise to this lawsuit. Instead, the special defense states merely that the plaintiffs used the product “intentionally.” Accordingly, the plaintiffs’ motion to strike the fourth special defense is granted without prejudice to the defendant’s amending its answer to allege knowing use of a defective product by one or both of the plaintiffs.

It is so ordered.

      . Rule 12(f), Fed.R.Civ.P., provides, in pertinent part, that "the court may order stricken from any pleading any insufficient defense.”

      . A defendant may also state a valid defense to a product liability claim by alleging "misuse of the product” by the plaintiff. C.G.S. § 52-572/. The defendant has already alleged product misuse as its second special defense to the first and second counts of the complaint.

      . A commentator on the Act has suggested the following model special defense on the issue of assumption of the risk:
      If the plaintiff sustained the injuries and damages as alleged, then said injuries and damages resulted from the plaintiff(‘s/s’) knowing and voluntary assumption of the risk in using the product.
      Yules, Defenses in a Connecticut Product Liability Case, 57 Conn.BJ. 441, 469 (1983).


source: Caselaw Access Project

author: FLANNERY, District Judge.

license: Public Domain

text:
    ENVIRONMENTAL DEFENSE FUND, et al., Plaintiffs, v. Lee. M. THOMAS, Administrator, U.S. Environmental Protection Agency, et al., Defendants.
    Civ. A. No. 85-1747.
    United States District Court, District of Columbia.
    Jan. 28, 1986.

      Robert V. Percival, David J. Lennett, Washington, D.C., for plaintiffs.
    Robert E. Steinberg, Barry S. Neuman, Dept, of Justice, Land and Natural Resources Div., Washington, D.C., for defendants.
    William R. Weissman, Jane Seigler, Washington, D.C., for amicus curiae.
   MEMORANDUM

FLANNERY, District Judge.

This matter comes before the court on the parties’ cross-motions for summary judgment. Plaintiffs’ motion has appended to it various public documents as well as documents under seal regarding deliberations between defendants. Defendants’ motion, originally filed in July of 1985, was supplemented in December of 1985. This court has allowed groups representing the electric utilities industry to file a single amici curiae brief.

I. Background

In November of 1984, Congress enacted the Hazardous and Solid Waste Amendments of 1984 (“1984 Amendments”), Pub.L. 98-616 (Nov. 8, 1984), which amended the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6924. RCRA is a comprehensive statute designed to regulate the management of hazardous and solid wastes. One of the new amendments, Section 3004(w) of RCRA, 42 U.S;C. § 6924(w), provides that “(n)ot later than March 1, 1985, the (Environmental Protection Agency or “EPA”) Administrator shall promulgate final permitting standards under this section for underground tanks that cannot be entered for inspection.”

This deadline was not met. Plaintiffs contend that EPA’s ability to promulgate the regulations was further prevented by the unlawful interference of the Office of Management and Budget (“OMB”). Plaintiffs, Environmental Defense Fund Inc. (“EDF”) and two individuals brought suit in this court on May 30, 1985. Plaintiffs seek an order that EPA must promulgate the regulations by April 25, 1986. Plaintiffs also seek injunctive relief against OMB to prevent similar interference in the future.

Defendants EPA and OMB want until June 30, 1986 to promulgate the regulations. Further, they contend that this court has no jurisdiction to grant injunctive relief against OMB of this kind. The electric utilities groups, Edison Electric et al., agree with defendants.

II. Jurisdiction

Both parties agree that RCRA gives this court jurisdiction to order the Administrator of EPA to perform nondiscretionary duties and allows this court to set a date by which EPA must promulgate the hazardous waste tank regulations. 42 U.S.C. § 6972(a)(2). The only real dispute is by which deadline EPA can reasonably be ordered to promulgate final standards.

Jurisdiction to grant injunctive relief against OMB is the more controversial aspect of this suit. At the crux of this disagreement is the lawfulness of OMB’s activity pursuant to the Congressional deadline and pursuant to Executive Order 12291, 46 Fed.Reg. 13193 (Feb. 17, 1981), 3 C.F.R. 127 (1982) (“EO 12291”).

EO 12291 directs executive agencies to submit all proposed and final rules to OMB for pre-publication review to determine if they are consistent with certain criteria (e.g., the regulations must be based on adequate information, the potential benefits must outweigh the potential costs, the net benefits to society must be maximized, and the alternative involving the least net cost to society must be chosen). Also, the order states that “major rules” are submitted to OMB for review 60 days before publication of proposed rules and 30 days prior to publication of final rules. All other rules are submitted to OMB for review 10 days before publication of proposed rules and 10 days prior to publication of final rules. OMB is deemed to have concluded its review after expiration of these time periods unless it notifies the agency that it has extended its review pursuant to Section 3(f). This extension may be indefinite.

OMB’s authority is qualified by the rule. Section 8(a)(2) of EO 12291 exempts regulations “for which consideration or reconsideration under the terms of this Order would conflict with deadlines imposed by statute or by judicial order.” Further, “(n)othing in this subsection shall be construed as displacing the agencies’ responsibilities delegated by law.” Sec. 3(f)(3). The executive order also limits OMB’s authority by authorizing OMB to exercise its review only “to the extent permitted by law.” Secs. 2, 3(a), & 6(a).

Plaintiffs contend that OMB’s interference with the promulgation of the EPA regulations' unlawfully delayed 'their promulgation, in violation of both the RCRA amendments and the Administrative Procedure Act (“APA”), 5 U.S.C. § 706. Plaintiffs argue that under 28 U.S.C. § 1331 and § 1361, this court may exercise inherent equitable powers to grant injunctive relief preventing further OMB interference.

Defendants respond that ordering OMB to refrain from reviewing any proposed regulations under RCRA whenever such review would delay promulgation of the regulation beyond a statutory deadline is an unjustifiable and inappropriate use of this court’s power. As defendants see it, neither the RCRA nor the APA gives this court jurisdiction over OMB in this matter. Further, there is no jurisdiction to enforce any constraints found within the Executive Order itself.

There is no doubt that this court has jurisdiction over both plaintiffs’ RCRA and APA claims against the Administrator of EPA. 42 U.S.C. § 6972(a)(2) and 5 U.S.C. § 702. In compelling EPA to perform non-discretionary duties, however, it is also appropriate to fashion equitable relief to ensure that such duties are performed without the interference of other officials acting outside the scope of their authority in contravention of federal law. Though in-junctive relief is not appropriate in these circumstances, as discussed below, there can be no doubt that an executive agency or agencies can be enjoined by this court from failing to execute laws enacted by Congress.

III. Discussion

While the merits of relief against EPA and relief against OMB can be discussed separately, first a discussion of what exactly caused the delay in promulgating the regulations is in order. From the documents released by OMB and EPA under seal, an interesting picture of OMB involvement in the promulgation process emerges.

Congress set March 1, 1985, as the deadline for promulgating the regulations. OMB commenced its review of the proposed permitting standards on March 4, 1985. Since these were not “major rules” under the meaning of EO 12291, EPA anticipated that OMB would complete its review within 10 days. On March 15, 1985, EPA staff briefed OMB staff on the proposed regulations. OMB refused to clear the regulations and on March 25, 1985, notified EPA that it was extending its review of the proposed regulations. OMB apparently wanted EPA to gather additional information prior to promulgating the regulations even though it would delay the process. By April 10, 1985, EPA had still not received any formal comments from OMB.

By April 12, 1985, it was clear that OMB I had serious differences with EPA overt what regulations to propose. At a meeting^ of April 16, 1985 between OMB and EPA staff members, OMB sought significant changes in the proposed regulations in four areas. The idea, apparently, was to shift the goal of the regulations away from EPA’s philosophy of containing all leaks of waste disposals to OMB’s philosophy of preventing only leaks of waste that can be demonstrated by risk analysis to threaten harm to human health.

Internal disagreement within OMB further delayed OMB’s consideration of the regulations. Some OMB staff members apparently felt that OMB should not be dictating substantive policy decisions to EPA while others felt the precedent being set an important one for OMB review of other RCRA regulations.

After this suit was filed on May 30,1985, OMB continued to seek specific changes in EPA’s proposed regulations as well as changes not previously discussed. After various negotiations regarding the substance of the regulations, OMB completed its review and cleared the proposed regulations on June 12, 1985. The EPA Administrator signed them June 14, 1985 and the proposed regulations were published in the Federal Register on June 26, 1985, 50 Fed. Reg. 26444, after OMB approved some last-minute stylistic changes made by EPA staff.

A. The Final Date for Promulgating the Regulations

The parties agree and this court finds that the Administrator of EPA has failed to comply with his nondiscretionary duties under § 3004(w) of the RCRA. There is disagreement, however, about when the final regulations should be ordered promulgated. Plaintiffs contend that a reasonable time is April 25, 1986 while defendants prefer a deadline of one year from the date the regulations were proposed (i.e. June 30, 1986).

Defendants justify their time-table in an affidavit filed by John H. Skinner, Director of EPA’s Office of Solid Waste (“OSW”). Public comments were received on the proposed regulations during a two-month period in the summer of 1985. EPA’s technical staff evaluated these comments from September through November 1985. After completing a risk assessment, EPA will develop final draft rules by the end of February 1986. By mid-April, 1986, an EPA work group will comment on the final draft and OSW will complete a revised draft in light of these comments. By the end of May, 1986, OSW will prepare the final rulemaking package for senior level review within EPA (known as “Red Border” review) and for OMB review. The time for doing this will be streamlined and the two agencies review will be done concurrently. The regulations will then become final by June 30, 1986.

Plaintiffs argue that one year is unnecessarily long. EPA has not received as many public comments as was anticipated. EPA’s prior and current promulgation schedules are in the neighborhood of nine months, not one year (e.g., the schedule now being followed for comparable small generator rules). As plaintiffs see it, this is the kind of unwarranted delay which this and other courts have struck down before. NRDC v. Ruckelshaus, 14 ELR 20817 (D.D.C. Sept. 14,1984); State of New York v. Gorsuch, 554 F.Supp. 1060 (S.D.N.Y.1983); Environmental Defense Fund v. Gorsuch, 17 ERC 1099 (D.D.C.1982); Sierra Club v. Gorsuch, 551 F.Supp. 785 (N.D.Cal.1982); State of Illinois v. Gorsuch, 530 F.Supp. 340 (D.D.C.1981).

Promulgation of regulations 16 months after a Congressional deadline is highly irresponsible. Congress was aware of the complexity of these hazardous waste regulations and yet decided that quick promulgation was of paramount importance. Now that the damage is done, however, this court must fashion an equitable remedy that best achieves the Congressional purpose. This court has previously felt bound to accept a proposed schedule by EPA where EPA demonstrates through affidavit that it is “proceeding in good faith,” Illinois v. Gorsuch, 12 ERC 1597, 1598 (D.D.C.1979), rather than mandate flat guidelines of its own. NRDC v. Train, 510 F.2d 692, 712-13 (D.C.Cir.1975). After reviewing the proposed schedule set forth by EPA in this case, it appears that the June 30, 1986 deadline is reasonable. This date is only two months later than the date sought by plaintiffs. Therefore, it is ordered that the regulations be promulgated by that time. Failure to do so would be capricious and would merit stronger equitable treatment.

B. OMB’s Interference with the Promulgation Process

From the discussion above, it seems clear that OMB did contribute to the delay in the promulgation of the regulations by insisting on certain substantive changes. The released documents show that EPA was ready to announce proposed regulations in the Federal Register as early as March 31, 1985, but due to OMB it did not happen until three months later.

A certain degree of deference must be given to the authority of the President to control and supervise executive policy-making. Sierra Club v. Costle, 657 F.2d 298, 405 (D.C.Cir.1981) (regarding whether oral communications between EPA and the White House must be docketed on the rule-making record when EPA revises Clean Air Act provisions). Yet, the use of EO 12291 to create delays and to impose substantive changes raises some constitutional concerns. Congress enacts environmental legislation after years of study and deliberation, and then delegates to the expert judgment of the EPA Administrator the authority to issue regulations carrying out the aims of the law. Under EO 12291, if used improperly, OMB could withhold approval until the acceptance of certain content in the promulgation of any new EPA regulation, thereby encroaching upon the independence and expertise of EPA. Further, unsuccessful executive lobbying on Capitol Hill can still be pursued administratively by delaying the enactment of regulations beyond the date of a statutory deadline. This is incompatible with the will of Congress and cannot be sustained as a valid exercise of the President’s Article II powers.

Such concerns were noted by Congress when EO 12291 was passed. In order to ensure the legality of the operation of EO 12291, James C. Miller III, now the director but then the administrator of OMB’s Office of Information and Regulatory Affairs (“OIRA”), appeared before a congressional committee and stressed the importance of construing narrowly the authority granted to OMB. Mr. Miller testified:

President Reagan’s Executive order imposes on the agencies only “to the extent permitted by law” and only to the extent that its terms would not “conflict with deadlines imposed by statute or by judicial order.” The limited application of (EO 12291) is a crucial point, one that insures (its) legality and the legality of actions pursuant to (it). ... If a statute or a court order establishes a date for a rulemaking action, the Executive Order 12291 cannot delay that action.

Testimony of James C. Miller III, in Role of OMB in Regulation: Hearing Before the Subcomm. on Oversight and Investigation of House Comm. on Energy & Commerce, 97th Cong., 1st Sess 46 (1981).

The Justice Department has also emphasized that EO 12291 must be construed narrowly to survive legal challenge.

(I)t is clear that the President’s-exercise of supervisory powers must conform to legislation enacted by Congress. In issuing directives to govern the Executive Branch, the President may not, as a general proposition, require or permit agencies to transgress boundaries set by Congress.

U.S. Department of Justice, Office of Legal Counsel Opinion on EO 12291, February 13, 1981.

This court has previously found that in certain egregious situations, statutory delay caused by OMB review is in contravention to applicable law under Section 8(a)(2) of EO 12291 and therefore that no further OMB review could occur. NRDC v. Ruck- elshaus, 14 ELR 20817, 20818 (D.D.C.1984). In Ruckelshaus, however, by the time the court order issued, EPA was six years passed the deadline set by Congress. In the case at bar, enjoining OMB from interacting at all with EPA simply because OMB might cause delay past the new judicial deadline is premature and an unwarranted intrusion into discretionary executive consultations.

There is, however, some credence in plaintiffs’ fear that the regulations due June 30, 1986, may still be delayed by OMB. While defendants claim that OMB review of the final regulations in May of 1986 will be concurrent with EPA senior level review, such concurrent review of the proposed regulations in the spring of 1985 resulted in considerable delay. Concurrent review does not eliminate delay, since any changes sought by OMB must then be reviewed by senior level EPA officials. This court declares therefore that further review by OMB which creates any delay in meeting the June 30, 1986 deadline is unreasonable and unacceptable. EPA is obligated to promulgate the regulations by that date and may not use the excuse of OMB review to refrain from doing so.

Plaintiffs also protest that OMB routinely reviews other EPA regulations subject to statutory deadlines even if such review will delay promulgation beyond the deadline. Unless this court declares that OMB has no authority to delay promulgation of all EPA regulations beyond statutory deadlines, OMB will continue to do so both for the Section 3004(w) standards and for other RCRA regulations subject to statutory deadlines in the 1984 amendments. Through answers to interrogatories, plaintiffs show that EPA submitted 169 regulations to OMB which were subject to statutory or judicial deadlines, and on 86 occasions OMB extended its review beyond the time periods outlined in EO 12291. OMB’s propensity to extend review has become so great that EPA keeps a running record of the number of its rulemaking actions under extended review by OMB and the resulting delays. The average delay per regulation is 91 days; total delays were more than 311 weeks. Apparently Section 8(a)(2) of EO 12291 is simply ignored.

Congress clearly is concerned with OMB’s use of EO 12291 with regard to the deadlines set within the 1984 Amendments. The House Committee report that accompanied the 1984 Amendments states:

The Committee is extremely concerned that EPA has not been able to comply with past statutory mandates and timetables, not just for RCRA, but for virtually all its programs _ The Administrator’s ability to meet this deadline (for publishing a schedule for land disposal ban decisions) as with all other deadlines in this bill, shall not be impaired in any way whatsoever by Executive Order 12291.

Hazardous Waste Control and Enforcement Act of 1983, Report of House Comm. on Energy and Commerce, 98th Cong., 1st Sess., May 17, 1983, at 34, 35, 1984 U.S. Code Cong. & Admin.News 5576, 5593-94.

The Hazardous and Solid Waste Amendments of 1984 added at least 44 new deadlines to RCRA, 29 of which must be satisfied within the next 20 months.

This court declares that OMB has no authority to use its regulatory review under EO 12291 to delay promulgation of EPA regulations arising from the 1984 Amendments of the RCRA beyond the date of a statutory deadline. Thus, if a deadline already has expired, OMB has no authority to delay regulations subject to the deadline in order to review them under the executive order. If the deadline is about to expire, OMB may review the regulations only until the time at which OMB review will result in the deadline being missed. From its tracking system, EPA can determine when further delay due to OMB review will result in a deadline being missed.

While this may be an intrusion into the degree of flexibility the executive agencies have in taking their time about promulgating these regulations, this is simply a judicial recognition of law as passed by Congress and of the method for dealing with deadlines laid down by the President himself. Such a recognition is not new. See NRDC v. Gorsuch, 17 ERG 2013, 2016 (D.D.C.1982). Indeed, OMB itself admits that it cannot prevent an agency from complying with statutory requirements. Yet declaratory relief is necessary to ensure compliance with the clearly expressed will of Congress. This is not an inappropriate interference with the interaction of executive agencies; all such interaction may continue absent a “conflict with deadlines imposed by statute or by judicial order.” Sec. 8, EO 12291.


author: SHADUR, District Judge.

text:
    SJ ADVANCED TECHNOLOGY & MANUFACTURING CORP., Plaintiff, v. Edward JUNKUNC, et al., Defendants.
    No. 85 C 4575.
    United States District Court, N.D. Illinois, E.D.
    Jan. 29, 1986.

      Robert J. Pavich, Michael D. Monico, Barry A. Spevack, Monico & Pavich, Chicago, Ill., for plaintiff.
    Richard K. Wray, Richard L. Rosen, Yvor E. Stoakley, Arnstein, Gluck, Lehr, Barron & Milligan, Chicago, Ill., for defendants.
   MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

SJ Advanced Technology & Manufacturing Corp. (“SJ”) has filed a seven-count Amended Complaint (the “Complaint” ) against Edward Junkunc, Laddie Junkunc and Helen Steirer — individually and doing business as General Machinery and Manufacturing Co. (“General”) — charging violations of:

1. the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968 (Count One);
2. Clayton Act § 3, 15 U.S.C. § 14 (Count Two); and
3. Sherman Act § 2, 15 U.S.C. § 2 (Count Three);

and advancing an assortment of related state-law claims (Counts Four through Seven). Defendants have now moved under Fed.R.Civ.P. (“Rules”) 9(b) and 12(b)(6) to dismiss the Complaint and to strike certain of its allegations. For the reasons stated in this memorandum opinion and order, the motion is granted in part but denied in principal part.

Facts

General manufactures various hardware products and aircraft jet engine components, including precision-machined fuel nozzle seals or gaskets (“seals”) (¶ 9). It produces seals particularly for jet engines manufactured by United Technologies Pratt & Whitney Aircraft Group (“United”) (¶ 12). Until 1979 General sold all its seals to United and was the sole supplier of all seals produced in the United States (id.). United resells the seals to different branches of the United States Armed Services, the only ultimate users of seals (¶ 13). No other United States market exists for seals (¶ 35).

General has always been a family-owned business, having been founded over 50 years ago by Stephen Junkunc II, the father of all three individual defendants and of Stephen Junkunc III (¶ 6). After the founder’s death, his four children owned and operated the business (id.).

Stephen Junkunc IV (“Junkunc”), grandson of the founder and son of Stephen III, was also a long-time employee of General (¶ 7). In July 1979, 14 months after his father’s death, Junkunc resigned from General because of harassment by other family members (1110). After his departure, he incorporated SJ and began preparations for the competitive manufacture of seals (¶ 11).

In October 1979 Junkunc called on United to discuss his business plans (¶ 14). United responded by asking SJ to develop new seal designs and to submit samples, with particular reference to one specific product (¶ 15). Discussions continued (111116-17), and in June 1980 United representatives inspected SJ’s facility and indicated SJ would require very little guidance to qualify as an “A-l vendor” (¶ 18). But throughout 1980 General communicated with both United and SJ’s potential suppliers, misrepresenting (HU 20, 22):

“(a) That plaintiff was in a distressed financial condition, under capitalized, and incapable of manufacturing seals on a continuing and reliable basis;
“(b) That plaintiff could not meet the requirements of its customers;
“(c) That plaintiff was not capable of manufacturing seals that would pass United quality assurance standards;
“(d) That plaintiff would soon be out of business;
“(e) That plaintiff had stolen “proprietary material” or “trade secrets” from General and was illegally using them to manufacture seals; and/or,
“(f) That in the event others contacted by plaintiff did business with plaintiff then they would cause General to cease doing business with those persons.”

Those misrepresentations succeeded in causing United to cease its discussions with SJ (¶ 25).

In September 1982 SJ turned to the United States Air Force to request information about supplying seals directly to the Air Force (II26). In March 1983 the Air Force approved SJ as a qualified seal supplier (1128). Beginning in late 1982 and continuing through 1984, General telephoned Air Force representatives in Oklahoma and made disparaging statements substantially similar to those made to United in 1980 (¶¶ 29, 33).

In mid-1983 SJ met with United States Navy representatives to discuss supplying seals directly to the Navy (¶ 31). In response, the Navy provided SJ with the necessary information to become an approved seal supplier (¶ 32), and in August 1984 the Navy awarded SJ a contract to manufacture seals (1138). During 1984 General made the same malicious misrepresentations to Navy personnel (1133).

In each instance General’s misrepresentations were communicated by telephone or mail and in interstate commerce. General has pursued its course of conduct to deter customers from doing business with SJ and to maintain General’s status as the sole supplier of seals in the United States (Ml 21, 24, 30 and 34).

General’s Contentions

General has launched multiple attacks on each of SJ’s federal claims:

1. Count One assertedly:
(a) fails to allege the elements of common-law fraud;
(b) fails to set out the alleged fraudulent activity with the particularity required by Rule 9(b); and
(e) fails to allege a “pattern” of “racketeering activity.”
2. Count Two purportedly:
(a) is barred by the statute of limitations in 15 U.S.C. § 15b; and
(b) fails adequately to allege an “agreement” and an “anticompetitive effect.”
3. Count Three allegedly:
(a) fails adequately to identify the relevant product and geographic markets monopolized by General; and
(b) fails to assert any anticompetitive effects.

General also seeks to strike (U1139-41, which deal with General’s institution of state court litigation against SJ and are the sole support of Count Seven.

Count One: RICO

SJ’s principal reliance for its RICO claim is on General’s asserted violations of the federal mail fraud and wire fraud statutes discussed below. General urges such reliance requires a showing of each element of common-law fraud (in addition to use of the means of communication conferring federal jurisdiction). And in that respect General correctly says SJ has alleged General’s factual misrepresentations not to SJ itself, but only to third parties: United, SJ’s suppliers, the Air Force and the Navy. As General would have it, such allegations of false assertions to third persons do not suffice to charge an underlying fraudulent scheme in RICO terms. Though SJ’s responsive analysis is equally off base, General’s argument must fail in light of the Complaint’s allegations.

RICO § 1962(a) renders unlawful (among other things) the operation of an enterprise engaged in, or whose activities affect, interstate commerce, where the person operating the enterprise uses any income derived by.that person “from a pattern of racketeering activity.” RICO § 1961(1) defines “racketeering activity” as any of a large number of specified illegal acts, including “any act which is indictable under ... [18 U.S.C.] section 1341 (relating to mail fraud) [or 18 U.S.C.] section 1343 (relating to wire fraud).”

Before this opinion turns to the latter subject, which has been the focal point of the parties’ presentations, a word is in order as to other allegations necessary for a claim under RICO § 1962(a): (1) the relationship between the individual defendants as the RICO “persons” and General as their “enterprise,” (2) the individuals’ having derived income from the “racketeering activity” and (3) the use of that income in the enterprise’s operation. All SJ has said on that score, apart from alleging the individuals’ ownership of General (f 5), is (¶ 44):

By reason of the foregoing conduct, defendants have violated section 2(a) of the Racketeer Influenced and Corrupt Organizations Act by engaging in wire fraud, 18 U.S.C. sec. 1343, interference with interstate commerce, 18 U.S.C. sec. 1951, and mail fraud, 18 U.S.C. sec. 1341, on two or more occasions, as part of a pattern of racketeering activity.

Because General is a partnership, that con-clusory allegation might well raise an inference about the individuals’ derivation of income from General’s wrongdoing, followed by their reinvestment and use of those funds in General’s operation. But a defendant is entitled to rely on more than guesswork (even educated guesswork) on such necessary components of a claim. Accordingly this opinion’s upholding of Count One is conditioned on SJ’s tendering of specific allegations on or before February 7, 1986 to flesh out the applicability of RICO § 1962(a).

To return to the litigants’ main bone of contention, a mail or wire fraud violation — and hence any derivative violation of the rights of a RICO victim — requires two elements:

1. a scheme to defraud; and
2. the use of the mails or the wires to further that scheme.

See, e.g., United States v. Shelton, 669 F.2d 446, 454-55 (7th Cir.), cert. denied, 456 U.S. 934, 102 S.Ct. 1989, 72 L.Ed.2d 454 (1982). SJ’s Complaint establishes both those elements, though not in the way SJ’s memorandum argues.

Soules v. General Motors Corp., 79 Ill.2d 282, 286, 37 Ill.Dec. 597, 599, 402 N.E.2d 599, 601 (1980) identifies the Illinois version of the familiar five elements essential to a cause of action for fraudulent misrepresentation:

(1) false statement of material fact (2) known or believed to be false by the party making it; (3) intent to induce the other party to act; (4) action by the other party in reliance on the truth of the statement; and (5) damage to the other party resulting from such reliance.

It is plain from this opinion’s factual recital that the Complaint alleges each of those elements:

1 and 2. General knowingly made false statements to United, SJ’s suppliers, the Air Force and the Navy (OT 20, 22, 29 and 33).
3. General made those misrepresentations intending to induce the recipients’ refusals to conduct any business with SJ (111121, 23, 30 and 34).
4. Those misrepresentations caused at least United to cease its discussions with SJ (1125).
5. SJ’s allegation of General’s monopoly status creates at least the reasonable inference that General’s false statements damaged United (for example) by causing it to refuse to deal with a company (SJ) that could otherwise have offered a competitive (more favorable) price.

In sum, SJ’s Complaint plainly alleges a “scheme to defraud” United, the Air Force and the Navy. And as to the second component essential to an act of racketeering activity, in each instance General communicated its misrepresentations by telephone or mail and in interstate commerce. Thus the Complaint’s allegations are adequate to establish mail and wire fraud as the predicate acts underlying SJ’s RICO claim.

None of the foregoing analysis, obvious though it is, finds its way into the parties’ memoranda. Instead they debate a false issue: General insists SJ must allege General’s acts defrauded SJ itself, while SJ accepts that proposition and tries unsuccessfully to demonstrate how that is so. But RICO § 1964(c) simply requires SJ to establish it is a “person injured in [its] business or property by reason of” the predicate acts of mail and wire fraud. Given General’s asserted monopoly status, together with the specific goal of its misrepresentations (though made to third parties) to exclude SJ as General’s sole prospective competitor in the seal market, SJ clearly fits that “person injured” description. Nothing blocks an injured competitor from calling on civil RICO; see Cenco, Inc. v. Seidman & Seidman, 686 F.2d 449, 457 (7th Cir.), cert. denied, 459 U.S. 880, 103 S.Ct. 177, 74 L.Ed. 145 (1982).

Defendants also challenge Count One as not meeting RICO’s “pattern of racketeering activity” requirement. RICO § 1961(5) identifies the statute’s necessary, though not sufficient, “pattern” prerequisite:

“[P]attem of racketeering activity” requires at least two acts of racketeering activity....

Because that statutory definition marks out only the minimum requirement for that concept, Sedima invited a judicial picking-out process to give further content to the “pattern” standard. This Court has since spoken to that issue by suggesting an appropriate approach in Northern Trust Bank/O’Hare, N.A. v. Inryco, Inc., 615 F.Supp. 828, 831-33 (N.D.Ill.1985).

Here General seeks to enlist Inryco in its own support, but SJ clearly has the better of the argument. Certainly (¶¶[ 20, 22, 29 and 33 allege multiple acts of mail and wire fraud. And General is alleged to have made a like set of malicious misrepresentations to several different parties: United, SJ’s suppliers, the Air Force and the Navy. True enough, General is said to have intended each time to injure SJ’s competitive opportunities, but it sought to do so by defrauding a series of victims. Its separate acts of fraud on various separate parties contrast sharply with the mere mailing of more than one letter to implement a single kickback scheme (the situation in Inryco). Thus General’s acts do constitute a “pattern” under Inryco, 615 F.Supp. at 831 (emphasis in original):

True enough, “pattern” connotes similarity, hence the cases’ proper emphasis on relatedness of the constituent acts. But “pattern” also connotes a multiplicity of events: Surely the continuity inherent in the term presumes repeated criminal activity, not merely repeated acts to carry out the same criminal activity.

And see Papagiannis v. Pontikes, 108 F.R.D. 177, 178-79 (N.D.Ill.1985); United States v. Yonan, 622 F.Supp. 721, 728-29 (N.D.Ill.1985); Graham v. Slaughter, 624 F.Supp. 222, 224-25 (N.D.Ill.1985).

Count Two: Clayton Act § 3

Count Two (¶ 46) charges General agreed with United that the latter would refuse to deal with SJ in violation of 15 U.S.C. § 14. General contends that claim is barred by the Clayton Act’s statute of limitations, 15 U.S.C. § 15b:

Any action to enforce any cause of action under sections 15 or 15a of this title shall be forever barred unless commenced within four years after the cause of action accrued.

For limitations purposes, a “cause of action” accrues each time a defendant commits an act that injures a plaintiff’s business. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338-39, 91 S.Ct. 795, 806, 28 L.Ed.2d 77 (1971). Accordingly Count Two can survive only if some act by General injurious to SJ’s business occurred after May 9, 1981.

Unsurprisingly, General contends SJ has failed to allege any acts in support of Count Two falling within the limitations period. SJ counters that:

1. General’s actions constituted a “continuing” violation of the Clayton Act.
2. At least one allegation (It 31) identifies overt acts occurring in mid-1983.

Neither of those positions withstands analysis.

First, even when a plaintiff charges a continuing violation, the statute of limitations begins to run from the time of the last overt act causing injury to the plaintiff. Charlotte Telecasters, Inc. v. Jefferson-Pilot Corp., 546 F.2d 570, 572-73 (4th Cir.1976). As Poster Exchange, Inc. v. National Screen Service Corp., 517 F.2d 117, 128 (5th Cir.1978) put it:

It remains clear nonetheless that a newly accruing claim for damages must be based on some injurious act actually occurring during the limitations period, not merely the abatable but unabated inertial consequences of some pre-limitations action.

Hence SJ must allege some act of General during the limitations period that constituted an exclusive dealing agreement prohibited by Clayton Act § 3. But only 1120 identifies any overt acts by General calculated to induce United to refuse to deal with SJ — and those acts allegedly occurred “[i]n and throughout the year 1980.” All II 25 goes on to say is this:

Thereafter, as a result of defendants’ efforts, United ceased discussions with SJ ADVANCED TECHNOLOGY & MANUFACTURING CORPORATION.

Although SJ has thus alleged an absence of dealing between SJ and United, it has conspicuously failed to allege any post-1980 act by General to procure that result. SJ’s mere intonation of the words “continuing violation” cannot overcome that fatal flaw.

SJ nonetheless urges II31 alleges the requisite post-limitations overt acts:

31. In or about the middle of 1983, SJ ADVANCED TECHNOLOGY & MANUFACTURING CORPORATION contacted the United States Navy and requested information that would enable plaintiff to supply seals to the United States Navy directly.

That notion is utterly without merit, for II31 speaks solely of SJ’s own actions. Each remaining Complaint reference to General’s conduct involves General’s alleged communications with the Air Force and the Navy, not its exclusive dealing agreement with United.

Accordingly, Count Two fails to meet the statute of limitations requirements of 15 U.S.C. § 15b. That conclusion obviates any need to discuss General’s claim that Count Two also fails adequately to allege an “agreement” and an “anticompetitive effect.” Count Two is dismissed.

Count Three: Sherman Act § 2

Count Three sets out a claim for attempted monopolization. Such a claim requires three elements:

1. a specific intent to gain the power to control prices or to exclude competition in a line of commerce;
2. predatory or anticompetitive conduct engaged in to further the purpose to monopolize; and
3. a dangerous probability of success in the relevant market.

Lektro-Vend Corp. v. Vendo Co., 660 F.2d 255, 270 (7th Cir.1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982). General attacks the sufficiency of SJ’s allegations of the first and third factors.

1. Specific Intent

It is difficult to understand General’s first line of attack, in light of the identical allegations of HU 21, 24, 30, 34 and 40:

Defendant made these false representations for the sole purposes of deterring [United, potential suppliers to SJ,] the United States Air Force and United States Navy from doing business with SJ ADVANCED TECHNOLOGY & MANUFACTURING CORPORATION and depriving it of income from the manufacture and sale of seals, and of maintaining General’s own status as sole manufacturer and supplier of seals in the United States.

It does no credit to General’s lawyers for them to insist (R.Mem. 11) no specific intent to monopolize has been asserted.

2. Relevant Markets

General also says SJ has not identified the relevant product and geographic markets. But ¶ 9 specifies the product market as a certain type of “aircraft jet engine component”: “metal rings ... referred to as ‘fuel nozzle seals’ or gaskets.... ” And U 35 identifies the relevant geographic market:

Outside the Armed Services in the United States, there is no market for these seals.

Those allegations withstand dismissal at this pleading stage.

3. Probability of Success

General finally argues SJ has failed to allege General’s “dangerous probability of success.” But U 12 asserts:

Until the inception of SJ ADVANCED TECHNOLOGY & MANUFACTURING CORPORATION, General ... was the sole source and supplier of these seals in the United States.

That factual allegation supports SJ’s later conclusory assertion (¶ 42):

General will monopolize the seals’ market in the United States.

General Electric Co. v. Bucyrus-Erie Co., 563 F.Supp. 970, 977 (S.D.N.Y.1983) (citations omitted) confirms the legal sufficiency of those allegations:

Bucyrus also contends that GEC must, as an element of its section two “attempting to monopolize” claim, plead “facts showing that the defendant has sufficient market power ... to make its monopolization of that market a dangerous probability.” We think this argument misconstrues the law. The complaint must allege a foundation for and be consistent with such a factual showing, but it asks too much at this early stage of litigation to require the complaint to make the factual showing. Facts showing a dangerous probability of monopolization would have to be alleged to stave off a summary judgment motion alleging contrary facts ... and will have to be proved at trial ..., but these are different matters. In short, the requirement that there be a showing of a dangerous probability of monopolization “is a matter of proof,” Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 178, 86 S.Ct. 347, 351, 15 L.Ed.2d 247 (1965), not pleading.

In those terms, at the very least SJ’s allegations “are consistent with” the notion General’s alleged attempt to monopolize poses a dangerous probability of success. General’s contrary arguments must fail.

Motion To Strike

Count Seven relies on allegations in ¶¶ 39-41 that General instituted an Illinois state court action against SJ as part of its attempt to monopolize the manufacture of seals. In General’s view, those allegations are immaterial in Rule 12(f) terms because the Noerr-Pennington doctrine bars an antitrust claim based on litigation instituted by General against SJ. Because SJ’s counsel have failed to respond to that argument, this Court is (inappropriately) forced to do their work for them.

Noerr-Pennington principles hold in essence that rights of association and petition shield from the antitrust laws any attempts to persuade legislatures to adopt particular laws (Noerr) and any attempts to persuade the executive branch to take certain lawful enforcement actions (Pennington). But ¶ 40 alleges General filed its state lawsuit principally to eliminate SJ as a competitive market force. In those circumstances General’s state court litigation is what Noerr, 365 U.S. at 144, 81 S.Ct. at 533 (though speaking of different conduct) terms “a mere sham to cover what is actually an attempt to interfere directly with the business relationships of a competitor^ so that] the application of the Sherman Act would be justified.” Such a predatory misuse of litigation to injure a competitor falls outside the Noerr-Pennington shield against antitrust liability. See California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972); Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 86 S.Ct. 347, 15 L.Ed.2d 247 (1965). General’s motion to strike is denied.

Conclusion

General’s motion to dismiss is granted as to Count Two. Its motion is denied as to Count One (conditioned on SJ’s amendment of that count on or before February 7, 1986) and Count Three, and its motion to strike ¶¶ 39-41 is also denied. General is ordered to answer the surviving portions of the Complaint on or before February 17, 1986.

      . All references to portions of the Complaint in this opinion will omit the name of the pleading itself, simply taking the form "Count — ” or "¶ — ”

        . For purposes of the motion to dismiss, this Court has accepted as true the Complaint's well-pleaded factual allegations, drawing all reasonable factual inferences in favor of SJ. Wolfolk v. Rivera, 729 F.2d 1114, 1116 (7th Cir.1984).

      . Neither SJ’s Complaint nor its briefing on the current motion reflects real care. Complaint Count One (¶ 44) also charged violations of 18 U.S.C. § 1951 (the Hobbs Act). When it came to briefing the current motion, though, SJ Mem. 3 referred instead to "Travel Act [18 U.S.C. § 1952] violations." But whichever SJ really means, it takes only a simple reading of both the Hobbs Act and the Travel Act to see SJ’s Complaint tracks neither. Accordingly SJ’s RICO claim must survive on the fraud charges or not at all.

      . Complaint Count One (Tf 44) refers to “section 2(a)” of RICO. For ease in reference to the statute in its most readily available form (as part of Title 28), this opinion’s citations will employ the different form just used in the text.

      . Once again the lack of thought by SJ's counsel in drafting the Complaint poses difficulties. It is unclear whether any of the other recipients of General’s misrepresentations also acted in reliance on them. Nor can it be told whether SJ may run afoul of RICO’s statute of limitations (see, e.g., Electronic Relays (India) Pvt. Ltd. v. Pascente, 610 F.Supp. 648 (N.D.Ill.1985)). Only the liberal reading of complaints taught by Hishon v. King & Spalding, 467 U.S. 69, 104 S.Ct. 2229, 2233, 81 L.Ed.2d 59 (1984) saves SJ (at least for the time being) from those and other possible problems.

      . SJ has sufficiently identified the content of the alleged fraudulent statements, by whom and to whom they were made and the range of dates on which they occurred. SJ need not plead its detailed evidence (available to General via discovery) to satisfy Tomera v. Galt, 511 F.2d 504, 508 (7th Cir.1975). General’s attempted invocation of Rule 9(b) is therefore unavailing.

      . SJ initially filed this action May 10, 1985.

      . General also contends the four-year statute of limitations bars consideration of SJ’s allegations as to United in support of Count Three. But SJ’s Sherman Act § 2 monopolization claim derives from General’s alleged conduct toward each of SJ’s prospective customers, attempting to shoot down each one as it emerged. Such a claim has a far better call on the label of “continuing violation” than Count Two’s exclusive dealing claim. Because SJ has unquestionably alleged overt acts by General within the limitations period in support of Count Three, the four-year statute of limitations does not bar reliance on General’s contacts with United to support Count Three.

      . Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961); United Mine Workers of America v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965).


author: FEIKENS, Chief Judge.

text:
    Kendrix M. EASLEY, Plaintiff, v. UNIVERSITY OF MICHIGAN BOARD OF REGENTS; Terry Sandalow, Dean of Law School; Theodore St. Antoine; Peter Westen; Beverly Pooley; Susan Eklund and Kris Munroe, jointly and severally, Defendants.
    No. 84-CV-7560-AA.
    United States District Court, E.D. Michigan, S.D.
    Jan. 29, 1986.

      Douglas L. Webster, Douglas L. Webster, P.C., Southfield, Mich., for plaintiff.
    Doris M. Harker, Ann Arbor, Mich., for defendants.
   OPINION

FEIKENS, Chief Judge.

Kendrix Easley (“Easley”), plaintiff, seeks here to secure a Juris Doctor (J.D.) degree from the University of Michigan Law School over defendants’ objection that he failed to earn the credit hours required for the degree. He brings this action under 42 U.S.C. §§ 1981, 1982, 1983, and the Constitution of the United States and alleges three causes of action. First, he alleges that defendants deprived him of due process by revoking or withholding a J.D. without basis. For this cause of action, he seeks equitable relief, in the form of an injunction ordering defendants to award him a J.D. degree. Second, Easley alleges that one or more defendants seized personal papers from his briefcase during a Law School disciplinary hearing in violation of the fourth and fourteenth amendments to the Constitution. Third, Easley, a black man, alleges that defendants deprived him of his degree, seized his personal papers, and commenced disciplinary hearings against him because of his race in violation of the equal protection clause and 42 U.S.C. §§ 1981 and 1982. For his second and third causes of action, plaintiff seeks primarily damage relief. On August 19,1985, I ordered a bench trial of plaintiffs equitable claim. I have jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343.

1. BACKGROUND

Easley commenced his studies at the Law School in the summer of 1979. In accordance with its policy to enroll a significant number of minority students (P. Ex. 9 at 86-87), the Law School admitted Easley even though he had low law school admission test scores (D. Ex. 43, P. Ex. 12). He experienced difficulty in several courses, earning four grades of “D” or “D + ,” and one grade of “E” (S. Ex. 26). In his second term, Easley sought and obtained special arrangements from Associate Dean Eklund (“Eklund”) regarding course requirements and scheduling of examinations. This pattern persisted throughout his law school career (D. Exs. 48-53). In the summer of 1982 he took the unusual step of petitioning the faculty to eradicate any reference in his transcript to the grade of “D+” in Taxation I, and to the grade of “D” in Enterprise Organization. That petition was denied.

Near the close of his law school career two disciplinary incidents took place. The first incident was triggered when he met with Professor St. Antoine (“St. Antoine”) and attempted to improve his grade of “D” in the course entitled Employment Discrimination. St. Antoine raised the grade to a “D+” after reviewing the examination booklets. While returning the examination booklets to the files, St. Antoine noticed that a cover page of a booklet appeared to have been changed. He outlined the basis for his suspicion in a memorandum to Ek-lund (St. Antoine Deposition, Ex. 13), and ultimately brought a cheating charge against Easley. Because of this pending charge, Easley was not permitted to sit for the July, 1982 Michigan Bar Examination.

At about the same time, Easley submitted a paper to Professor Westen (“Wes-ten”), presumably in an effort to earn one or two credit hours. See infra n. 12. When Westen examined the paper he discovered that it was a nearly complete copy of a Law Review article, and he charged Easley with plagiarism. Both charges were tried to a Law School Tribunal in accordance with its regulations. In November, 1982, Easley was found not guilty of cheating on his employment discrimination examination. In April, 1983, the Tribunal, chaired by Professor Wade McCree, found Easley guilty of plagiarism.

II. THE DUE PROCESS CLAIM Central to this dispute is Easley’s claim that he was deprived of his J.D. degree. Although his pleadings do not make clear whether he is relying upon procedural or upon substantive due process, this is not critical to disposition of this case. He cannot prevail under either theory without first proving his entitlement to a property interest protected by due process. See Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (protection of procedural due process triggered only if plaintiff has a liberty or property interest); Jeffries v. Turkey Run Consolidated School District, 492 F.2d 1, 4 (7th Cir.1974) (absence of property or liberty interest fatal to substantive due process claim); Levitt v. University of Texas at El Paso, 759 F.2d 1224, 1231 (5th Cir.1985), cert. denied, — U.S.-, 106 S.Ct. 599, 88 L.Ed.2d 578 (1985) (“[T]he substantive due process analysis is not triggered unless there is a property or liberty interest taken by state action.”); Kilcoyne v. Morgan, 664 F.2d 940, 942 (4th Cir.1981), cert. denied, 456 U.S. 928, 102 S.Ct. 1976, 72 L.Ed.2d 444 (1982) (same); Brenna v. Southern Colorado State College, 589 F.2d 475, 476 (10th Cir.1978) (same); Ryan v. Aurora City Board of Education, 540 F.2d 222, 228 (6th Cir.1976), cert. denied, 429 U.S. 1041, 97 S.Ct. 741, 50 L.Ed.2d 753 (1977) (same).

Easley makes three arguments. First, he claims that he was entitled to six credit hours for his Civil Procedure course, but that defendants awarded him only five hours, leaving him one credit hour short of the eighty-one hours required for graduation. Second, he claims that he needed only eighty hours to graduate, not the eighty-one specified by applicable academic regulations. Third, he claims that the Law School actually conferred a J.D. upon him during Senior Day activities, and that defendants’ subsequent actions revoked the degree.

A. The Credit Hour Controversy

During the 1979 fall term, Easley enrolled in Professor Martin’s Civil Procedure course, designated Course No. 502, Section 4, with five hours of credit (S. Exs. 11, 19, 28). Although Easley says he attended most of the semester’s classes, he did not take the examination. Instead, he received permission from Eklund to defer it because of claimed family troubles. The deferred examination was originally scheduled for a date early in January, 1980 (D. Ex. 48). However, in January Easley requested another deferral, claiming continuing family difficulties.

Toward the end of the 1981 fall term, Easley discussed graduation requirements with Eklund and Kris Munroe (“Munroe”), the Law School Recorder. They informed him that he had to complete the Civil Procedure course before graduating. Eklund permitted him to satisfy the requirement by passing an examination to be given by Professor Martin. Eklund originally scheduled the examination for a date in January, 1982, but later postponed it again, at Easley’s request, to a date in March, 1982. Ultimately, Easley passed the examination.

Easley claims he earned six credit hours in Civil Procedure. He does not claim— and could not claim — that he ever enrolled in a six-hour Civil Procedure course. Rather, he argues that Eklund promised him six hours credit. Eklund did not promise Easley six hours credit. She had no authority to make any such promise. Although she has limited discretion to determine the number of credit hours a student may receive for an independent study course, she has no authority to alter the number of credit hours given for an established course, such as Civil Procedure. Easley does not dispute this assessment of Eklund’s authority. When a student takes and passes a make-up examination, it is standard law school procedure to give only the credit hours designated for the course. Easley took a make-up examination for a five-hour Civil Procedure course. (Cf. S. Ex. 80 at pp. 13-14).

Easley attempts to corroborate his claim by relying on the changes made on his transcript during the summer of 1982. Professor Martin reported Easley’s grade to the Law School Recorder on April 6, 1982 (S. Ex. 27). Munroe’s job as Recorder includes responsibility for entering reported grades into the Law School computer, which produces student transcripts. It is standard procedure to. hold a grade reported during a semester until the end of the semester before entering it. Following that procedure, Munroe entered Easley’s grade on June 22, 1982 (S. Ex. 27).

That entry consisted of both the grade and information as to the course graded. She entered the following information: Course No. 503, Section .4, Civil Procedure, and Professor Martin’s name. She entered a “3” in the “hrs. load” column, and a “6” in the “hrs. graded” column. The entry contained obvious errors, which Munroe readily admitted in her testimony. First, during the 1982 Winter Term, Professor Cooper taught Course No. 503, Section 4 (S. Ex. 24). Easley did not take a course with Professor Cooper. Second, Easley’s registration records for the term do not reflect enrollment in any section of Course No. 503 (S. Ex. 17). The Civil Procedure course that he took is known as Course No. 502. Although Munroe never corrected these errors, she changed the numbers in both the “hrs. load” and “hrs. graded” columns to “5.” Easley argues that these changes prove that he earned six hours of credit in Civil Procedure, and that defendants wrongfully deprived him of one credit hour, thereby preventing his timely graduation.

Easley’s transcript never reflected six hours of earned credit for the Civil Procedure course. While the “hrs. load” column on the transcript is relevant to determining the credit hours a student has toward graduation, the “hrs. graded” column is not relevant to this determination. Even a cursory examination of Easley’s transcript confirms this. If Easley wishes to rely for credit hours on the “hrs. graded” column, he could claim only sixty-six hours (sixty-seven hours if six hours are allowed for Civil Procedure), far short of the eighty-one hours required for graduation (S. Ex. 26). The original entry in the “hrs. load” column was a “3,” not a “6,” and the final entry in the column was a “5.” This change actually increased the number of credit hours recorded on Easley’s transcript.

I find that neither Eklund, Munroe, nor any other University official, promised Eas-ley six hours credit in Civil Procedure. I also find that Easley earned only five hours credit, and that this was all he was entitled to receive. I find that the Recorder originally erred by crediting Easley with only three hours credit, rather than the five to which he was entitled, and that this error was ultimately corrected so that his transcript accurately reflected the eighty credit hours earned.

These findings compel the legal conclusion that Easley had no right at all, let alone a protected property interest, in a sixth credit hour. But even if Eklund had in fact promised him six hours credit for the course, he would still lack a protected property interest in the sixth hour. Easley argues that under Roth, supra, and Perry v. Sinderman, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), such a promise creates a property interest protected by due process. In Roth, the Court stated:

To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.

Roth, 408 U.S. at 577, 92 S.Ct. at 2709. Perry held that this definition permits a plaintiff to establish a protected interest by proving “rules or mutually explicit understandings that support his claim of entitlement.” Perry, 408 U.S. at 601, 92 S.Ct. at 2699. Easley argues that these cases transform Eklund’s alleged promise into a constitutionally protected interest.

Easley’s argument has no merit. It is not every subjective belief that creates a protected interest; Perry requires that an “understanding” have objective basis in a university’s “policies and practices” of general application. Perry, 408 U.S. at 603, 92 S.Ct. at 2700-01, quoting Sinderman v. Perry, 430 F.2d 939, 943 (5th Cir.1970) (decision below). See Grove v. Ohio State University, College of Veterinary Medicine, 424 F.Supp. 377, 383 (S.D.Ohio 1976) (no protected property interest in admission to veterinary school based upon encouraging statements from administrators and faculty where there was “nothing to support a conclusion that this was a consistent policy or practice of the institution to which an objective conclusion ... could be ascribed.”). In Perry, the Court held that a non-tenured teacher could satisfy this burden by proving that school policies established a system of de facto tenure. The school had no formal tenure system, but its faculty handbook and promulgated guidelines assured “satisfactory” teachers a permanent position. Perry, 408 U.S. at 599-601, 92 S.Ct. at 2698-99. The Circuit Court cases that Easley cites (Trial Brief at 17) also involve written statements or established policies of general application. In contrast, all Easley relies upon is his allegation that Eklund promised him six hours of credit. No policy or practice of the Law School provides an objective basis for his belief.

Under Roth and Perry, Eklund’s promise, assuming it was made, does not create an entitlement protected by due process. Easley earned only five credit hours in Civil Procedure, and no promise can change that. Cf. National Consumer Information Center v. Gallegos, 549 F.2d 822, 828 n. 6 (D.C.Cir.1977) (oral promise by director of public funding agency that plaintiff’s program would continue to receive funding “cannot be said to elevate NCIC’s funding rights to a constitutional status....”); Shamie v. City of Pontiac, 620 F.2d 118 (6th Cir.1980) (City’s promise to provide plaintiff with reasons for denial of his application for an original liquor license did not create a protected property interest, even though the promise was made a matter of court record, because an applicant in plaintiff’s position in fact had no entitlement under state law to a statement of reasons for denial of his application).

In summary, I find that Easley was never promised six hours credit for Civil Procedure. I also hold that even if Eklund had promised him six credit hours, he would have no property interest protected by due process.

B. The Eighty-Hour Controversy

As an alternative claim, Easley alleges that he has an entitlement to a J.D. degree because he needed only eighty hours to graduate. He basis this on a statement contained in the Law School Bulletin (1978-80), a descriptive catalog for prospective students, that no less than eighty hours are required for graduation (P. Ex. 9 at 65). Although Easley admits that Law School regulations applicable to his class require at least eighty-one hours of credit (S. Ex. 30 at 1), he argues that the regulations do not bind him because they went into effect for the first time during his first term at the Law School, and because he did not receive a copy of the regulations prior to beginning the term. Easley thus urges that I order a J.D. degree conferral.

Easley’s claim is groundless and frivolous. Although he testified that he did not receive the regulations before he began school, I find that the regulations were distributed with other orientation material at the beginning of each term. Easley admits receiving at least some of the other material. The regulations are readily accessible throughout the year in the administrative offices of the Law School. It is significant that Easley did not testify that he never received the regulations during his program at the Law School.

More important, Easley’s claim fails for the same reason his first claim fails: the objective reality is that Easley and all others subject to the academic regulations effective May 31,1979, need eighty-one credit hours to earn a J.D. degree, and no representation to the contrary can change that. This is particularly true where the representation Easley relies upon is contained in a booklet that cautions:

The information contained in this Bulletin is subject to change at any time. It is intended to serve only as a general source of information about the Law School and is in no way intended to state contractual terms.

P. Ex. 9 at 1. No one can reasonably rely on statements of academic regulations contained in such a Bulletin. Moreover, Eas-ley never testified that he relied on the statement he quotes. Easley thus has no entitlement to a degree based upon eighty credit hours.

C. The Senior Day Controversy

Easley also claims an entitlement to a J.D. degree based on his participation in the May 15, 1982, Senior Day ceremony of the Law School. He argues that the Law School conferred a J.D. degree upon him during the ceremony, and that defendants’ subsequent actions revoked his degree. Easley relies upon a letter from Professor Pooley (“Pooley”) as corroboration for his claim (P. Ex. 4). The letter, written by Pooley in his capacity as Chairman of the Committee on Professional Responsibility, offers Easley (through his attorney) a settlement of the St. Antoine cheating charge. In the letter, Pooley writes that if plaintiff pleads guilty to the charge, “[gjrant of the J.D. degree to Mr. Easley will be withheld until December 31,1982.” (P. Ex. 4). Eas-ley argues that this letter shows he had already acquired his degree, or at least had done everything necessary to acquire it.

Again, Easley’s argument is groundless and frivolous. The Senior Day ceremony is provided by the Law School as a formal gathering in honor of third-year (senior) law students and their families. No degrees are actually conferred, nor could they be. Since Senior Day takes place the day after final examinations, there is no time to determine semester grades. Accordingly, degree eligibility cannot be verified. Furthermore, the final award of a degree is up to the University Regents.

Pooley explained his purpose in sending the settlement offer to Easley’s attorney. He did not imply that he personally had power to award or withhold a degree, or that Easley had satisfied all the requirements for a J.D. degree. Pooley assumed Easley’s degree would be granted as offered only if Easley qualified for it. His purpose was to indicate that as a penalty for cheating, the degree would be suspended for a time beyond the date on which Easley would otherwise be entitled to it.

Easley did not receive a J.D. degree by taking part in the Senior Day ceremonies.

III. DISPOSITION

For the foregoing reasons, I hold that plaintiff’s equitable claim fails. Defendants may submit an appropriate order.

      .Plaintiff originally alleged more than three causes of action, but in my August 19, 1985, Memorandum Opinion and Order, which I hereby incorporate by reference into this Opinion, I dismissed all except three claims. I also dismissed plaintiffs suit against the Regents of the University, with prejudice, 619 F.Supp. 418.

      . A bench trial was held on December 3, 6, 9, and 11, 1985. This Opinion constitutes the findings of fact and conclusions of law required by Fed.R.Civ.P. 52(a).

      . I cite stipulated exhibits with the abbreviation "S. Ex.,” defendants’ exhibits with the abbreviation “D. Ex.,” and plaintiffs exhibits with the abbreviation "P. Ex.”

      . In my August 19, 1985, opinion, I treated Eas-ley’s theory as one of substantive due process. Mem.Op. at 6. Because of the Supreme Court’s recent decision in Regents of the University of Michigan v. Ewing, — U.S.-, 106 S.Ct. 507, 88 L.Ed.2d 523 (1985), I question whether I have authority to review, under substantive due process principles, the University’s academic decisions at issue. In Ewing, the Court sustained a University’s dismissal of a medical student who had a pattern of academic deficiencies. The Court prefaced its substantive due process analysis by stating that it would assume the existence of a protected interest and dispose of the case on narrower grounds. Ewing, — U.S. at-, 106 S.Ct. at 511-12. As Justice Powell noted, the Court considered the existence of a protected interest “dubious." Ewing, — U.S. at -, 106 S.Ct. at 515-16 (Powell, J. concurring). Justice Powell, moreover, expressly disavowed the existence of a protected interest. Ewing, — U.S. at -, 106 S.Ct. at 515-16 (Powell, J. concurring).
      Because of my ruling, I need not resolve this issue. I assume that Ewing does not preclude my review.

      . Eklund permitted this because Easley had already attended classes for the course. This illustrates the concern Eklund displayed for him during his entire Law School program. The record shows that she did all within her authority to help Easley succeed in his quest for a law degree.

      . Six-hour Civil Procedure courses are offered, but they meet for two consecutive semesters and designate three hours credit for each semester. Easley enrolled in a one-semester, five-hour course (S. Ex. 11).

      . The date stamped on S. Ex. 27 is incorrect.

      . Easley claims that defendants deprived him of the hour so that St. Antoine could charge him with cheating. He argues that the University would have had no jurisdiction over him if defendants had given him all the hours of credit he was due; thus, Easley claims, they took one credit hour away to prevent graduation and to permit a disciplinary hearing. Easley attempts to corroborate his theory by noting that Eklund and Munroe changed his transcript shortly after St. Antoine brought cheating charges against him.
      The record does not support Easley’s claim. First, the transcript matter and the cheating charge are completely separate events. Second, Easley produced no evidence supporting his claim that the cheating charge could go forward only after a reduction of one credit hour. Third, as I discuss below, Eklund and Munroe, in changing Easley’s transcript, actually increased by two the number of credit hours reflected on the transcript.

      . See note 9 on page 584.

        9. Defendants have not barred Easley’s access to a degree. Even now, he remains free to earn one more credit hour, thereby satisfying graduation requirements. Unfortunately, Easley has chosen to litigate.
      Easley could have graduated on time, despite earning only five credit hours for Civil Procedure, if he had completed his three-hour independent study course with Professor Watson. Instead, he permitted his incomplete to mature into an "E,” thus earning no credit for the course (S. Ex. 26). Even if he had completed an independent study for one or two credit hours, he could have earned sufficient credit hours to graduate. Easley considered an independent study with Professor Westen for one or two credit hours, but the paper he submitted led to his conviction of plagiarism. My only point here is that Easley passed by several opportunities to earn sufficient credit hours to graduate.

      . Eklund discovered the error while helping Munroe with her first degree audit. The Law School conducts degree audits to ensure that candidates satisfy graduation requirements. If everything is in order, a candidate typically receives a diploma in the mail several months after finishing school.
      Eklund discovered the error becavfse of the three-hour discrepancy between the "hrs. graded" and the “hrs. load.” For the entry to make sense, there would have to be a prior entry of three “hrs. load” and zero "hrs. graded." This two-entry method is used to record grades in two-semester courses, such as Easley's Property course (S. Ex. 26). In the case of plaintiffs Civil Procedure course, no prior entry accounted for the three-hour discrepancy. Accordingly, Ek-lund knew there had been an error.

      .In his Trial Brief, Easley argues that he had a liberty interest at stake, too. This claim is groundless. In denying Easley a sixth credit hour and a J.D. degree, defendants merely stated that he had not yet earned the hour or the degree. This does not “seriously damage his standing and association in his community." Roth, 408 U.S. at 573, 92 S.Ct. at 2707. Easley remains free to earn one more credit hour, and thereby his J.D. degree.

      . Zimmerer v. Spencer, 485 F.2d 176, 178 (5th Cir.1973), quoting decision below, (protected interest " ‘under the policies and practices of the institution’”); Ferguson v. Thomas, 430 F.2d 852, 856 (5th Cir.1970) (protected interest under University’s "prevailing practices”); Moore v. Knowles, 482 F.2d 1069, 1072 (5th Cir.1983) (remand for finding as to whether the "practices of the school" system justify finding a protected interest); Stapp v. Avoyelles Parish School Board, 545 F.2d 527, 532 (5th Cir.1977) (protected interest based on School System’s letter stating that it considered principal "under contract and would release him only for ‘urgent and unforseeable circumstances’ ”); Soni v. Board of Trustees of the University of Tennessee, 513 F.2d 347, 350 (6th Cir.1975), cert. denied, 426 U.S. 919, 96 S.Ct. 2623, 49 L.Ed.2d 372 (1976) (District Court’s finding of a protected interest not clearly erroneous where “ ‘objective' evidence’ ” supported plaintiffs expectation of continued employment).