author: HOEVELER, District Judge.

text:
    In re WITNESS-ATTORNEY BEFORE GRAND JURY
    NO. 83-1.
    United States District Court, S.D. Florida.
    Jan. 24, 1984.

      Robert Lipman, Asst. U.S. Atty., U.S. Atty’s Office, Miami, Fla., for the United States.
    Jeffrey S. Weiner, Robert G. Amsel, Weiner, Robbins, Tunkey & Ross, Miami, Fla., for witness.
    Neal R. Sonnett, Benedict P. Kuehne, Bierman, Sonnett, Shohat & Sale, Miami, Fla., amicus curiae for Nat. Crim. Defense Attys. Ass’n.
   HOEVELER, District Judge.

THIS CAUSE is before the Court on the government’s Motion to Compel the Witness-Attorney to testify and produce documents. Hearings were held at which evidence was proffered and argument heard. Being advised, the Court denies the Government’s motion.

FACTS

In late January of 1982, the witness (hereafter referred to as the “Witness-Attorney”), a licensed practicing attorney was retained to represent Messrs. Castillo Robinson, Ramon Perdomo, Jesus Rodriguez and Dagoberto Gonzalez, all defendants in the case of United States of America v. Roy Allen, et al., 82-63-CR-WMH, in the United States District Court for the Southern District of Florida. These four defendants were charged in a two count indictment alleging marijuana violations. Eventually, the four defendants pled guilty to one count of the indictment and the government agreed to dismiss the remaining count. The four defendants were subsequently sentenced and surrendered to serve their sentences.

The uncontested facts and findings of fact are that a certain unnamed third party or parties retained the Witness-Attorney to represent the defendants in United States of America v. Roy Allen, et al., supra. Prior to the time the Witness-Attorney was retained, the paying party or parties sought legal advice from the Witness-Attorney with respect to the party or parties actual involvement in past criminal acts relating to the very same charges brought against the defendants in United States of America v. Roy Allen, et al. This third party client(s) also sought advice from the Witness-Attorney concerning bonding arrangements for the defendants and the logistics of “bonding out” the defendants based on the fact that corporate surety bonds had previously been set by a United States Magistrate.

Subsequently, the Witness-Attorney’s unnamed client(s) arrived at the Witness-Attorney’s law offices to continue his, her or their ongoing discussions concerning the case. Subsequent to these discussions, the Witness-Attorney became aware that one or two bondsmen were present in the Witness-Attorney’s law offices concerning an unrelated matter. The Witness-Attorney introduced his client(s) to one or two bondsmen by first name(s) only, invited their use of his office conference room to discuss matters relating to the corporate surety bonds, and left their presence immediately thereafter. [Grand Jury Testimony of 3-29-83, pp. 72, 77],

The government has served subpoenas duces tecum on one or both of the bondsmen present during this introduction and it has learned through documentation that the individuals introduced to the bondsmen by the Witness-Attorney were Carlos Perez and Raul Ramirez. The Witness-Attorney has neither confirmed or denied whether, in fact, these two individuals are the unnamed clients. The government has conceded that it has not conducted any further investigations to confirm the identities of these two individuals and whether they were connected in any way with providing the legal fees for the defendants in United States v. Roy Allen, et al., or in any way connected with the marijuana smuggling operation which formed the basis of the charges in United States v. Roy Allen, et al.

Parenthetically, it should be noted that in December 1982, and January 1983, the Witness-Attorney filed motions for reduction of sentence, pursuant to Rule 35 of the Federal Rules of Criminal Procedure, on behalf of his clients in United States of America v. Roy Allen, et al, supra. In response to this motion, the government filed a document entitled “Government’s Combined Motion for Hearing on Possible Conflict of Interest by Defense Counsel and Partial Response to Motion to Reduce Sentence.” In this, the government suggested that the Witness-Attorney may have a conflict of interest in connection with the pending motions to reduce sentence and suggested that (1) the Witness-Attorney’s clients may have knowledge as to who planned a major drug smuggling operation; (2) the most logical step to bring about a reduction in the Witness-Attorney’s clients’ sentence would be for these clients to inform the government as to who planned the drug smuggling operation; (3) the Witness-Attorney may have had an attorney-client relationship with the planners of the marijuana smuggling operation and further, that the person or persons who planned the drug smuggling operation may have paid the legal fees for the Witness-Attorney’s clients. The Witness-Attorney filed a response to this motion and extensive oral argument was heard before this Court. On March 29, 1983, this Court denied the Government’s “Motion for Hearing on Possible Conflict of Interest” stating, inter alia, that “... This Court finds no showing from the record presented that there was any conflict of interest.” The government did not appeal that order.

On January 12, 1983, the Witness-Attorney was subpoenaed to testify before the Grand Jury. The subpoena compelled the Witness-Attorney to appear before Federal Grand Jury 83-1 and produce documents and provide testimony relating to the amount of legal fees paid in United States v. Roy Allen, et al., and the identity or identities of the party(ies) who paid these fees. The Witness-Attorney appeared at the called for time and place.

The Witness-Attorney appeared before the grand jury and refused to provide information relating to the identity of the Witness-Attorney’s clients who may have paid the legal fees in United States v. Roy Allen, et al., supra, and who sought legal advice for the Witness-Attorney with respect to their involvement in past criminal acts relating to the charges in United States of America v. Roy Allen, et al., supra. The Witness-Attorney did, however, comply with the other aspects of the subpoena by turning over to the grand jury the records of his law firm indicating the fees paid.

On April 27,1983, the government filed a “Motion to Compel Grand Jury Witness to Testify and Produce Documents.” In its motion, the government urged that Witness-Attorney to reveal to the grand jury the identity of the Witness-Attorney’s unnamed client(s) who was introduced to the bondsman or bondsmen. In addition, the government sought, for the period of January 1, 1980, to February 15, 1983, any and all documents, papers, records, and recordings relating to or concerning bail bond fees, collateral for bail bond, and legal fees — in any criminal case or any forfeiture case whatsoever — directly or indirectly paid, transferred, delivered, arranged, or discussed by any of the following persons: (a) Carlos Perez; (b) Raul Ramirez.

During the numerous oral arguments before this Court on the government’s Motion to Compel, the government has conceded that no crime-fraud exception to the attorney client privilege exists or existed in this case. That is, there was no proof of a prior agreement, either explicit or implicit, between or among the defendants in United States of America v. Roy Allen, et al., supra, and others to the effect that in the event that one of the conspirators was arrested, he would be provided with an attorney’s services.

CONCLUSIONS OF LAW

Initially, it should be noted that no waiver of the attorney-client privilege resulted by the Witness-Attorney’s introduction of this client(s) to the bondsman or bondsmen. There was no “meeting” between the Witness-Attorney, his client(s) and any bondsman, but rather a brief, perfunctory introduction, by first name(s) only, after which the Witness-Attorney left the individuals to talk amongst themselves. [Grand Jury Testimony of 3-29-83, pp. 68-72, 77]. The government has provided no evidence, even after having the benefit of testimony from at least one of the bondsmen, that the “meeting” was anything more than a very brief perfunctory introduction. Applying any recognized test, there were no “communications” between the attorney and client shared by other third parties. There was, therefore, no waiver.

Moreover, it should be noted that a bondsman, like a lawyer’s secretary, law clerk, or other support personnel, is often, and especially in this case since corporate surety bond had been ordered, an essential person in an attorney’s full representation of his clients. In United States v. Kovel, 296 F.2d 918 (2d Cir.1961), Judge Friendly, writing for the court, emphasized that:

On the other hand, in contrast to Tudor times when the privilege was first recognized, see 8 Wigmore, Evidence, § 2290, the complexities of modern existence prevent attorneys from effectively handling clients of theirs without the help of others; few lawyers could now practice without the assistance of secretaries, file clerks, telephone operators, messengers, clerks not yet admitted to the bar, and aids of other sorts. “The assistance of these agents being indispensible to his work and the communications of the client often necessarily committed to them by the attorney or by the client himself, the privilege must include all the persons who act as the attorney’s agents.” 8 Wigmore, Evidence, § 2301; Annot., 53 ALR 369 [1929].
******
The presence of the accountant [or as in this case, the bondsman] is necessary, or at least highly useful for the effective consultation between the client and the lawyer which the privilege is designed to permit.

Id. at 921-22. The mere introduction of a criminal defense attorney’s client to a bondsman is “necessary, or at least highly useful, for the effective consultation between the client and the lawyer.” United States v. Kovel, supra, at 922. A substantial portion of a criminal defense attorney’s job involves attempting to have his client released on bond and a bondsman is always necessary when a magistrate or judge orders a corporate surety bond. If this Court were to rule that an introduction by a lawyer of a client to a bondsman will always waive the attorney-client privilege as it relates to the client’s identity, then, in effect, every time a defendant were granted a corporate surety bond, the defense attorney could be compelled to reveal the identity of his client if the attorney introduced the client to a bondsman. This would be so even though the identity of that client would otherwise be privileged. The realities, particularities and implications of practice before this Court and, even more importantly, the legal rights of the parties will not be overlooked to accommodate the government’s understandable concern about drug trafficking.

It is significant to note that the government has stated that it is in possession of the names of the individuals introduced by the Witness-Attorney to the bondsmen. The government has also indicated that it has not made any further investigations or follow-ups in an effort to verify these names and/or to verify whether these individuals were in fact involved in any type of drug smuggling operation.

A criminal defense attorney should not be brought before a federal grand jury and be compelled to divulge attorney-client secrets where the government could very well utilize alternative, less intrusive, methods in order to gain the very same information. The admonition of the Fifth Circuit Court of Appeals in In Re Grand Jury Proceedings; United States v. Jones, 517 F.2d 666 (5th Cir.1975), is particularly appropriate here:

... The Government should not read this opinion as an invitation to tighten the web of secrecy surrounding its objectives and the nature and extent of information already in its hands when it calls lawyers to testify before prosecutorial bodies.

Id. at 675. Before the government will be permitted to compel witness-attorneys to testify before a grand jury regarding matters which could be considered to be protected by the attorney-client privilege, it ought to be compelled to gain this information by first exhausting all of its investigatory powers which would not tread into the sacred area protected by the attorney-client privilege.

The identity of the Witness-Attorney’s unnamed client(s) is privileged information protected by the attorney-client privilege, under the circumstances of this particular case. The general rule is that matters of client identity generally fall outside the traditional common law attorney-client privilege. In Re Grand Jury Proceedings (Lawson), 600 F.2d 215 (9th Cir. 1979); In Re Grand Jury Proceedings; United States v. Jones, supra. However, “under certain circumstances, an attorney must conceal even the identity of a client, not merely his communications, from inquiry.” In Re Grand Jury Proceedings; United States v. Jones, 517 F.2d 666, 671 (5th Cir.1975). The Jones Court continued and indicated:

Just as the clients’ verbal communications are protected, it follows that other information, not normally privileged, should also be protected when so much of the substance of the communications is already in the government’s possession that additional disclosures would yield substantially probative links in an existing chain of inculpatory events or transactions. (Emphasis added).

Id. at 674. In In Re Grand Jury Proceedings; Pavlick, 680 F.2d 1026 (5th Cir., Unit A, 1982), the Court apparently narrowed this exception to apply to disclosures which would supply the “last link in an existing chain of incriminating evidence likely to lead to the client’s indictment.” Id. at 1027.

Under either standard, the identity of the Witness-Attorney’s client is privileged in this case. The Witness-Attorney has made repeated representations that his unnamed client(s) not only paid the legal fees for the defendants in the underlying case but also sought legal advice with respect to his, her or their own involvement in past criminal acts relating to the drug smuggling operation which formed the basis of the charges in United States v. Roy Allen, et al., supra. The Witness-Attorney linked the unnamed client(s) to involvement in a past drug smuggling operation and as such, the identity of the client(s) would yield “substantially probative links” or “the last link” in an existing chain of incriminating evidence likely to lead to the client(s) indictment. As noted in In Re Grand Jury Proceedings; United States v. Jones, supra:

If relators were compelled to disclose the sought-after items before the grand jury, the unidentified clients — having been linked by their lawyers to payments in excess of reported income (the prosecutor need only produce their tax returns) —might very well be indicted.

Id. at 674 [emphasis supplied].

Additionally, the government has acknowledged that the so-called “crime-fraud exception” to the attorney-client privilege does not apply to the instant case. It is generally accepted that once the government has made a prima facie showing that the attorney was retained in order to promote intended or continuing criminal or fraudulent activity, the privilege could not be asserted. In Re Grand Jury Proceedings (Pavilack), supra; Clark v. United States, 289 U.S. 1, 15, 53 S.Ct. 465, 469, 77 L.Ed. 993 (1933); United States v. Friedman, 445 F.2d 1076, 1086 (9th Cir.1971). The crime or fraud exception applies even where the attorney is completely unaware that his advice is sought in furtherance of such an improper purpose. In Re Grand Jury Proceedings (Pavilack), supra; United States v. Friedman, supra, at 1086. Clark v. United States, supra, 289 U.S. at 15, 53 S.Ct. at 469. Since the government has acknowledged that the crime-fraud exception does not apply in the instant case, the Court finds that the crime-fraud exception to the attorney-client privilege cannot compel the disclosures sought by the government in this case.

Aside from the legal and ethical problems associated with requiring the Witness-Attorney to reveal the information sought by the grand jury, it is inevitable that requiring the Witness-Attorney, as well as all attorneys similarly situated to the Witness-Attorney, to act, in effect, as confidential informants and testify against their own client(s) could only serve to further degrade the unfortunate negative image attorneys often possess in our society. Condoning the practice of requiring attorneys to secretly testify against their own clients would only be adding fuel to the fire in a society which is already distrustful of lawyers and the legal system. The attorney-client privilege should not be allowed to be attenuated further.

When an individual walks into an attorney’s office and seeks legal advice with respect to past criminal conduct (and, in this case, prefaces his discussions with the attorney that anything said would be kept secret), there can be no question that that individual expects his conversations with the attorney to remain confidential. In certain circumstances, as in the instant case, these confidences would also include the client’s identity. If a client feels that part or all of his conversations with his attorney-may one day be divulged, that client will necessarily refrain from being fully open and truthful with this attorney. This, in turn, will result in less than effective assistance of counsel and could very well result in diminishing the importance of the Sixth Amendment’s right to assistance of counsel.

Efforts of the type involved here, regardless of how well intentioned, must be reviewed with exceeding care. The attorney-client relation is one sacred to our system and the protections afforded must be maintained in the proper case, even though the result may be distasteful. As Circuit Judge Politz of the Eleventh Circuit Court of Appeals stated in his well reasoned dissent in Pavilack, supra:

The signs, then, are clear. Soon there will be no distinction. Soon there will be no attorney/client privilege recognized. The drug traffic is abhorrent. This cancer on our social fabric must be eradicated. The desire to pursue vigorously all suspected participants is understandable and lauditory. Many things may be sacrificed in this effort, but the attorney/client privilege is not, to me a forfeitable item. This privilege is of such value to our civilized society and system of criminal justice that I must regretfully dissent from today’s ruling, and its natural consequence — defense counsel becoming the gpvernment’s unwilling instrument for the investigation and prosecution of clients for past criminal acts. I am convinced that society’s momentary gain from this development will be far outdistanced by its ultimate loss.

Id. at 1304 (Politz, J., dissenting).

Any momentary gain to society by requiring the Witness-Attorney to testify against his client(s) would indeed be far outdistanced by its ultimate loss.

THEREFORE, it is ORDERED that the Government’s Motion to Compel Grand Jury Witness to Testify and Produce Documents is hereby DENIED.

      . This Court notes that the Pavlick court’s reliance on Jones for this proposition appears to be misplaced. In Jones, supra, the Court specifically emphasized: "The government and the court below have taken the position that a client’s identity, fee, and bonding arrangements can never be privileged unless disclosure would lead automatically to conviction for a criminal offense. That is not the law." [Emphasis supplied]. The Jones court then went on to announce the proper standard which is "substantially probative links." Id. at 674. This Court further notes that Pavlick, supra, is not controlling in this circuit. Bonner v. City of Prichard, 661 F.2d 1206. (11th Cir.1981).


source: Caselaw Access Project

author: RAMBO, District Judge.

license: Public Domain

text:
    UNITED STATES of America v. David MARTINEZ.
    Crim. No. 84-00035-02.
    United States District Court, M.D. Pennsylvania.
    Sept. 14, 1984.

      Sally Lied, Asst. U.S. Atty., Harrisburg, Pa., for plaintiff.
    Robert DeGroot, Weiss, Turco & De-Groot, Newark, N.J., for defendant.
   MEMORANDUM

RAMBO, District Judge.

Before the court are post-trial motions submitted by the defendant in which he seeks the following alternative relief:

1. An order for judgment of acquittal;

2. An order vacating the verdict of guilty;

3. An order granting a new trial.

Defendant was convicted of one count of aiding and abetting the interstate transportation of stolen property and of conspiracy to commit the same. At the heart of defendant’s post-trial motions is the issue of whether or not the government met the jurisdictional requirement that the value of the stolen property be $5,000.00 or more.

In the instant case, the stolen property consisted of a skid of York Peppermint Patties manufactured by Peter-Paul Cad-bury Company. The stolen skid of candy consisted of twelve (12) individual boxes containing thirty-six (36) individual bars or four hundred and thirty-two (432) bars in a case. There were forty-eight (48) cases on a skid or 20,736 individual bars (N.T. 1-25). A consumer would pay thirty (.30) or thirty-five (.35) cents a bar (N.T. 1-40).

The York Peppermint Patties were of the same character and quality as those sold at retail and were generally produced for the purpose of sale at retail. Peter-Paul Cad-bury customers include not only other wholesalers, but also retail outlets. The price charged per bar depended on the outlet (N.T. 1-9), but, almost invariably, such bars sell for either $0.30 or $0.35 each depending on the retail outlet. At $0.30 a bar, a skid had a value of $6,220.80. At $0.35 a bar a skid had a retail market value of $7,257.60.

The above values were testified to by Daniel A. Lorusso, Director of Distribution for Peter-Paul Cadbury. Mr. Lorusso also testified that the value of the skid to Peter-Paul Cadbury — the wholesale price — was $84.24 per case or $4,043.32 per skid (N.T. 1-34). Defendant contends that the latter price should control the jurisdictional amount.

In U.S. v. Moore, 571 F.2d 154 (3d Cir.1978), the court held that the value element of 18 U.S.C. § 2314 may be proved by evidence of the stolen property’s value either at the time of theft or at the time of transportation. In U.S. v. Willis, 322 F.2d 548 (3d Cir.1963), the court, in deciding whether there was competent evidence to show $5,000.00 jurisdictional limit, spoke in terms of retail value. In footnote # 1 of that decision, several other cases are cited which discussed market value. Each of these cases used the retail market value. Herman v. U.S., 289 F.2d 362 (5th Cir.1961) cert. denied, 368 U.S. 897, 82 S.Ct. 174, 7 L.Ed.2d 93 (1961); Husten v. U.S., 95 F.2d 168 (8th Cir.1938); Gordon v. US., 164 F.2d 855 (6th Cir.1947). See also, Cave v. U.S., 390 F.2d 58 (8th Cir.1968) cert. denied, 392 U.S. 906, 88 S.Ct. 2059, 20 L.Ed.2d 1365 (1968). It is the opinion of this court that under the facts of the instant case, the retail value was the appropriate value to use in determining the jurisdictional limitation.

The defendant also alleges that Daniel A. Lorusso was not competent to testify as to the retail value of the merchandise. Mr. Lorusso was not called to the stand as an expert witness to give an opinion. He was called as a fact witness. As previously noted, Daniel A. Lorusso is the Director of Distribution for Peter-Paul Cadbury. In that capacity, he was responsible for customer service and as such was knowledgeable about the customers of Peter-Paul Cadbury (N.T. 1-7, 8) as well as the retail and wholesale prices of the candies manufactured by Peter-Paul Cadbury (N.T. 1-7, 8, 19, 41-42). Furthermore, no objection was placed on the record to the testimony of Mr. Lorusso. Such an objection is now untimely.

The defendant’s last objection goes to this court’s response to a jury question. The question presented to the court was:

What is the court’s ruling on the value of the stolen merchandise four thousand dollars (wholesale) or six thousand dollars plus (retail)?

N.T. Ill — 274

The court responded to the question as follows:

I instruct you that the value means face, par or market value, whichever is greatest. The aggregate value of all goods, wares, merchandise, securities and money referred to in a single indictment shall constitute the value thereof. For purposes of market value, I am instructing you that it is retail value.

N.T. Ill — 285

The defendant argues that decision making on the essential element of value was incorrectly taken from the province of the jury. The defendant is in error. There was no dispute as to either the wholesale or retail value of the merchandise. The dispute concerned which figure controlled for jurisdictional purposes. This is a matter of law which is the responsibility of the court, not the jury.

For the foregoing reasons, the post-trial motions of the defendant will be denied.


author: ALLEN SHARP, Chief Judge.

text:
    Brian DAVIDSON, Petitioner, v. Jack R. DUCKWORTH, Superintendent, and Indiana Attorney General, Respondents.
    No. S 83-538.
    United States District Court, N.D. Indiana, South Bend Division.
    Sept. 17, 1984.

      Brian Davidson, pro se.
    William Patrick Glynn III, Deputy Atty. Gen., Indianapolis, Ind., for defendants.
   MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

This petition for writ of habeas corpus was filed pursuant to 28 U.S.C. § 2254 by Brian Davidson, an inmate incarcerated at the Indiana State Prison in Michigan City, Indiana. The matter is now before this court on respondents’ supplemental return to show cause. In accord with the dictates of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), the complete state court record has been filed with, and carefully examined by, this court.

A careful examination of the underlying state court record and the opinion of the Supreme Court of Indiana, Ind., 442 N.E.2d 1076 (1982), reveals that petitioner has exhausted his available state court remedies per 28 U.S.C. § 2254(b), (c); Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982) Both sides having briefed their respective positions, this petition is now ripe for ruling.

Petitioner was convicted in a state court jury trial of murder, for which he received a determinate sentence of thirty (30) years. This conviction was unanimously affirmed on appeal by the Supreme Court of Indiana. Petitioner now brings this petition for a federal writ of habeas corpus.

Petitioner raises the following issues in this application for habeas relief:

(1) whether the trial court’s refusal to allow cross-examination of the state’s chief juvenile witness regarding his past delinquent activities constituted denial of petitioner’s Fourteenth Amendment right to due process and equal protection of the laws;

(2) whether petitioner’s Fifth Amendment right against self-incrimination was abridged by the prosecutor’s questioning him regarding his pre- and post-arrest silence; and,

(3) whether petitioner was denied due process when the trial court gave its instruction number six.

Each will be addressed in its turn.

This court in its Memorandum and Order on April 5, 1984, was unable to determine whether the issues presented in the habeas petition were those originally presented to the Supreme Court of Indiana. Since the time of the Order, this court has received the complete state court record and has had the opportunity to review the same indepth. This court now finds that although the issues are worded slightly different in the habeas petition then in the direct appeal, the claims were presented to the state court. The petitioner did fairly present the claims to the state court. Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). Therefore, the petitioner has exhausted his state court remedies.

The petitioner also asks this court to hold an evidentiary hearing “on the cause and prejudice” issues presented by fulfilling the requirements of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1976); Engle v. Issac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). The criteria against which requests must be measured are set forth at 28 U.S.C. § 2254(d). Essentially, the statute declares that evidentiary hearings in federal habeas proceedings are necessary only when the petitioner establishes or the respondent admits, or it “otherwise appear[s]”, that the State court’s determinations of factual questions evidenced by written findings lack sufficient indicia of reliability. Wickliffe v. Duckworth, 574 F.Supp. 979 (N.D.Ind.1983) Here, the petitioner has failed to show that the State court’s factual determinations of factual questions evidenced by its written findings lack sufficient indicia of reliability. The state record clearly shows that the petitioner failed to object or present argument during trial or on appeal, and thus, petitioner fails to show the necessity of an evidentiary hearing on the cause and prejudice issue. Therefore, petitioner’s request for an evidentiary hearing is hereby DENIED.

This court also notes that the petitioner has not filed a request for the appointment of counsel, but at all times during these proceedings he has been ably represented by Joseph M. Kalady, a fellow inmate and lay advocate.

I.

The petitioner, Davidson, alleges the denial of his constitutional rights of due process and equal protection when the trial court granted the state’s motion in limine preventing Davidson from cross-examining one of the state’s juvenile witness concerning his juvenile adjudications. Davidson claims that said ruling prevented him from being allowed to present evidence to the jury concerning the witness’ bias and prejudice through impeachment tactics, and thus, deprived him of his constitutional right to confront the witness.

The respondents claim that the petitioner failed to present a reviewable issue to the Indiana appellate courts since the petitioner failed to timely object or preserve the record. Therefore, they claim that the petitioner waived any claim as a matter of procedural default.

A closer review of the state court record reveals that the trial court denied the state’s motion in limine as to voir dire and opening statements, reserving ruling for the time of cross-examination of the witness. The trial court granted the motion in limine directly prior to the witness cross-examination absent any argument or objections offered by the defendant. The defendant then fully cross-examined the witness making no attempt to place into evidence before the jury any prior crimes or juvenile adjudications of the witness. Based on the fact that the defendant failed to present a reviewable issue to the state court, the Indiana Supreme Court found no reversible error existed.

The issue of the affect of a state procedural default upon a federal habeas claim has been the focal point of much consideration by the federal courts. The Supreme Court of the United States has held, “We must determine, therefore, whether respondents may litigate, in a federal habeas proceeding, a constitutional claim that they forfeited before the state courts.” Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982).

The U.S. Supreme Court also considered the forfeiture of a constitutional claim in a habeas proceeding resulting from a state procedural default in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), when defendant failed to make a contemporaneous objection pursuant state procedural practice. The Court in Sykes when considering the affect of applying a procedural default as a bar to a constitutional claim stated, “We recognize that these costs are particularly high when a trial default has barred a prisoner from obtaining adjudication of his constitutional claim in the state courts. In that situation, the trial court has had no opportunity to correct the defect and avoid problematic retrials. The defendant’s counsel, for whatever reasons, has detracted from the trial’s significance by neglecting to raise a claim in that forum. (Footnotes omitted).” The Court also realized the consequences of the intervention of federal courts in the processes of the state criminal proceedings and further stated, “The state appellate courts have not had a chance to mend their own fences and avoid federal intrusion. Issuance of a habeas writ, finally, exacts a charge by under cutting the State’s ability to enforce its procedural rules.” Id. 456 U.S. at 129, 102 S.Ct. at 1572.

In extending the Francis rule applying the “cause” and “prejudice” exception of procedural default, the Court in Sykes held, “If a criminal thinks that an action of the state trial court is about to deprive him of a federal constitutional right there is every reason for his following state procedure in making known his objection... The “cause” and “prejudice” exception of the Francis rule will afford an adequate guarantee, we think, that the rule will not prevent a federal habeas court from adjudicating for the first time the federal constitutional claim of a defendant who in the absence of such an adjudication will be the victim of a miscarriage of justice.”

In this case, petitioner neither objected at trial, nor did he offer any reasons why he failed to comply with state procedural requirements. The Petitioner has failed to show cause for his failure to comply with state procedure and has not demonstrated the resulting prejudice therefrom. In Engle, the Court applying the Sykes test of “cause” and “prejudice” to a state procedural default in a federal habeas petition stated, “These considerations supported our Sykes ruling, that, when a procedural default bars state litigation of a constitutional claim, a state prisoner may not obtain federal habeas relief absent a showing of cause and prejudice.” This petition fails to meet the criteria set forth in the exception to the Sykes test demonstrating cause for non-compliance with state procedure and the resulting prejudice therefrom, thus, this issue is barred by procedural default.

II.

The petitioner raises as his second issue before this court, a claim for the violation of his Fifth Amendment right against self-incrimination by the prosecutor’s questioning him regarding his pre- and post-arrest silence. This petition is the first instance that the petitioner raises any claim as to a violation of his post-arrest silence. In his direct appeal to the Supreme Court of Indiana he clearly claimed a violation in regard to pre-arrest silence only. A close scrutiny of the alleged pre- and post-arrest silence questioning in this petition reveals that they are one in the same as the challenged pre-arrest silence questioning in the direct appeal to the state court. It is clear that the petitioner has construed the silence in question to be post-arrest silence for the first time in this habeas petition. A careful review of the questions under consideration shows that the silence was of a pre-arrest nature and does not lend itself to being characterized as post-arrest silence.

The Indiana Supreme Court when faced with the opportunity to consider the issue of pre-arrest silence questioning by the prosecutor in regards to any violation of Davidson’s constitutional rights first considered the defendant’s failure to comply with the state procedural requirements. The Court found that the defendant had waived any claim on the issue of pre-arrest silence since he failed to timely object at the trial.

The petitioner’s failure to timely object thus preserving the issue for appeal constituted a procedural default. Therefore, the petitioner must show cause for failing to comply with state procedure and the resulting prejudice therefrom. Wainwright v. Sykes, supra. There has been no offer of explanation of why the petitioner failed to comply with state procedural requirements, thereby allowing the state courts the opportunity to mend their own fences. Therefore, without a showing of cause and prejudice the petitioner fails to fall within the exception to the Francis rule concerning procedural default. Id., supra. Issue two of the petition for alleged violation of self-incrimination under the Fifth Amendment for certain prosecutorial conduct in regards to pre-arrest silence is barred by procedural default.

Further, in regards to pre-arrest silence the United States Supreme Court has clearly held in Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980) that impeachment by use of pre-arrest silence does not violate the Fifth Amendment, the Fourteenth Amendment or the Constitution. Therefore, when the defendant voluntarily took the witness stand to testify in his own behalf he subjects himself to cross-examination and is susceptible to the impeachment of his credibility just like any other witness. Raffel v. U.S., 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054 (1926). Thus, in the event petitioner’s claim was not barred by procedural default his claim would not present an issue violating the Constitution requiring granting of habeas relief.

III.

The third issue presented by the petitioner is whether he was denied due process when the trial court gave its instruction number six. The petitioner claims that the instruction as given shifted the burden of proof on the issue of intent to the defendant. The respondents claim that procedural default applies and that the Indiana Supreme Court found no existence of fundamental error.

At the time the trial court gave the instruction to the jury the defendant did not object or offer argument against the instruction. The defendant failed to preserve the issue for appeal. Further, the defendant has failed to offer any reasons for his failure to comply with the state procedural requirement to timely object. The Indiana Supreme Court found that the defendant waived any error in the giving of the instruction.

The state court found that no fundamental error existed as to issue three, and it also found independant grounds of procedural default waiving any error the petitioner claims he may have had as to instruction number six. Thus, it is upon the petitioner to show cause for the non-compliance of state procedure, and the prejudice resulting from any alleged error. Wainwright v. Sykes, supra; Engle v. Issac, supra. The petitioner has failed to show cause or demonstrate prejudice. Therefore, issue three is barred by procedural default.

CONCLUSION

The petition for a writ of habeas corpus is hereby DENIED.

IT IS SO ORDERED.

      . 28 U.S.C. § 2254(d) reads, in its entirety:
      (d) In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidence by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or is shall otherwise appear, or the respondent shall admit—
      (1) that the merits of the factual dispute were not resolved in the state court hearing;
      (2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;
      (3) that the material facts were not adequately developed at the State court hearing;
      (4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;
      (5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;
      (6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or
      (7) that the applicant was otherwise denied due process of law in the State court proceeding;
      (8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record:
      And in an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determination has been made, unless the existence of one or more of the circumstances respectively set forth in paragraphs numbered (1) to (7), inclusive, is shown by the applicant, otherwise appears, or is admitted by the respondent, or unless the court concludes p-usuant to the provisions of paragraph numbered (8) that the record in the State court proceeding, considered as a whole, does not fairly support such factual determination, the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous.

      . Unlike most prison legal assistants, Mr. Kalady has considerable experience in prosecuting inmate petitions, both under 42 U.S.C. § 1983 and 28 U.S.C. § 2254, in federal court. He has appeared before this court on behalf of fellow inmates on numerous occasions. It is this court’s understanding that Mr. Kalady holds a Master’s degree in philosophy from DePaul University, and worked for two Chicago Loop law firms prior to his incarceration.

      . Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976).

      . During cross-examination of Defendant, the prosecutor questioned Defendant without objection, as follows:
      "Q Sir, is it your testimony you did not intend to hit anyone with those shots?
      A Yes, it is.
      Q Did you ever go to the police sir, with this information?
      A No, maam (sic).
      Q I believe you testified that while you were hiding you knew that someone had been hit, is that correct?
      A That’s right.
      Q And yet you never went to the police?
      A No, maam (sic), I was scared to death.
      Q And when were you ultimately arrested, sir?
      A Approximately twelve days after the incident.
      Q So, in that two weeks you never went to the police with your information?
      A That’s right.
      Q You testified that you got a hair cut, is that correct?
      A That’s right.
      Q To avoid detection?
      A That's right.
      Q Didn’t it occur to you that since a man had died and you knew what had had happened that you should give that information to the authorities?
      A Nobody knows how much that occurred to me, maam (sic).
      Q But you did not go to the police?

        A No, maam (sic).
      Record, pp. 748-49. Davidson v. State, 442 N.E.2d 1076, 1079 (1982).

      . United States ex rel Saulsbury v. Greer, 702 F.2d 651, 655 (7th Cir.1983); Phelps v. Duckworth, 582 F.Supp. 401, 407 (N.D.Ind.1983).
      The Seventh Circuit Court of Appeals in United States ex rel Allen v. Franzen, 659 F.2d 745, 748 (7th Cir.1981) held:
      That Jenkins does control the pre-arrest silence issue, if the prosecutor’s questions on cross-examination and remarks in closing argument had referred only to petitioner’s silence prior to receiving his Miranda warnings, we would have been bound by Jenkins to conclude that no constitutional violation occurred.

      . Instruction number 6 reads as follows:
      “‘Intent’ concerns the frame of mind of a person at the time of a particular act. You can only determine intent by what a person says and what he does. Intent is a mental process. It is proved by the facts and circumstances leading up to and surrounding the particular act. Obviously, intent is a secret and silent operation of the mind. Its visible manifestation is the accomplishment or the attempted accomplishment of the act decided upon. An individual whose intent is sought to be ascertained may remain silent. Upon the question of intent, you may infer that a person intends to accomplish the necessary, natural, and probable consequences of his act.”

        Davidson v. State, supra, at 1080.

      . The Indiana Supreme Court held:
      "We do not agree that the giving of instruction No. 6 resulted in fundamental error____ It is apparent on its face, however, that instruction No. 6 does not dictate any such presumption to the jury. It attempts to explain intent to the jury and tells them they may infer that a person intends to accomplish the necessary natural and probable consequences of his act by considering that act and the surrounding cicumstances leading up to it. The jury was to determine the defendant’s intent by examining and considering all the facts and circumstances surrounding the incident at the beach ..."

        Davidson v. State, supra, at 1081.


author: WOODROW WILSON JONES, District Judge.

text:
    Martha WATKINS and Shirley D. McCurry, on behalf of themselves and all others similarly situated, Plaintiffs, v. MILLIKEN & COMPANY, Defendant; and Lucy R. PACE, on behalf of herself and all others similarly situated, Plaintiff, v. MILLIKEN & COMPANY, Defendant.
    Nos. SH-C-84-122, SH-C-84-167.
    United States District Court, W.D. North Carolina, Shelby Division.
    Sept. 19, 1984.

      Whalen, Hay, Cash & Wolcott by J. Patrick Whalen, Jr., Asheville, N.C., for plaintiffs in both cases.
    Pisgah Legal Services, Inc. by Barry L. Master, Asheville, N.C., for plaintiff in no. 122.
    Hamrick, Bowen, Nanney & Dalton by Walter H. Dalton, Rutherfordton, N.C., and Thompson, Mann & Hutson by John P. Mann, E. Scott Smith, M. Lee Daniels, Jr., Greenville, S.C., for defendants in both cases.
   MEMORANDUM OF DECISION

WOODROW WILSON JONES, District Judge.

In compliance with an order of this Court dated June 26, 1984 an evidentiary hearing was conducted in Rutherfordton on August 6, 1984 upon the motions of Defendant Milliken & Company to dismiss and strike certain allegations and causes of action from the complaints filed by the Plaintiffs Watkins and McCurry, SH-C-84-122 and Plaintiff Pace, SH-C-84-167. The cases were consolidated for the purpose of the hearing since they contain similar factual and legal issues and the parties are represented by the same counsel.

Plaintiffs Watkins and McCurry filed their action against Defendant Milliken on April 20, 1984 seeking individual and class relief under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. Sections 2000e — 2000e-16 (Title VII), and the Age Discrimination in Employment Act of ]967, as amended, 29 U.S.C.A. Sections 621-634 (ADEA). The Title VII claims were brought as class actions under Rule 23, Federal Rules of Civil Procedure and charged Milliken with discriminating against Plaintiffs and the class they seek to represent on the basis of sex and their national origin. The ADEA claims are brought under Rule 23 as class actions.

The Defendant moved to dismiss and to strike the Title VII claims, both individual and class, under Rules 12(b)(1), (6) and (f), Federal Rules of Civil Procedure, for the reason that the complaint did not allege that either of the Plaintiffs had filed charges of sex or national origin discrimination with the Equal Employment Opportunity Commission (EEOC) nor received notices of right to sue from EEOC, that the Defendant had not been notified of such claims, and that EEOC had neither investigated nor attempted to conciliate the claims. Milliken contends that the Court lacked jurisdiction over the Title VII claims, they fail to state a claim upon which relief can be granted and they should be striken from the complaint. The Defendant also moved to dismiss and strike the Plaintiffs’ claim under ADEA to the extent that they seek to state a Rule 23 class action contending that Congress, by incorporating into the ADEA the procedures for “representative actions” found in section 16(b) of the Fair Labor Standards Act, as amended, 29 U.S.C.A. Section 216(b) (FLSA), rejected the “notice” based procedures of Rule 23. In addition the Defendant moved to dismiss and strike the Plaintiffs’ state law claims of breach of contract as not properly pendent to any federal claim, claiming both this Court’s lack of authority to entertain such claims as well as the propriety of the Court’s entertaining such claims founded upon a theory having no clear support under North Carolina law.

On May 18, 1984, the Plaintiff Pace filed both a motion to intervene in the Watkins and McCurry action as well as a separate action, SH-C-84-167. Pace’s complaint raises individual and class claims under Title VII and ADEA, as well as an individual, pendent, state law contract claim. Pace raises no sex discrimination claim, but seeks individual and class relief for national origin discrimination under Title VII.

The Defendant moved to dismiss and strike the Title VII claim, the Rule 23 ADEA claim, and the pendent contract claim from the Pace complaint for the same reasons set forth in the Watkins and McCurry action.

The Plaintiffs Watkins, McCurry and Pace are all represented by the same counsel and have opposed the motions to dismiss and strike filed by the Defendant. With reference to the Title VII claims, the Plaintiffs contend that they attempted to file charges of sex and reverse national origin discrimination with EEOC but were effectively prevented from doing so by representatives of EEOC who would only accept age discrimination charges from them. With regard to the Rule 23 ADEA claims, the Plaintiffs concede that Rule 23 is inapplicable to actions brought under ADEA but contend that Section 16(b) of FLSA permits this Court to: (1) direct the Defendant to provide names and addresses of potential class members; (2) certify a class, and (3) provide notice to all potential class members of their right to “opt in” to the class action. As to the state law claims the Plaintiffs contend that this Court has the power to entertain the breach of contract claims as pendent to the federal claims and that there is no good reason for it not to do so.

The Court heard oral arguments on the Defendant’s motions to dismiss and strike and there developed material factual differences between the parties concerning the role played by EEOC in receiving and processing the alleged claims of sex and national origin discrimination. The contents of the affidavits and documents offered led the Court to order an evidentiary hearing limited to the question whether Plaintiffs’ failures to file charges of sex and national origin discrimination, and to receive statutory notices of right to sue thereon, are, under the circumstances herein, excused by considerations of “waiver, estoppel, or equitable tolling,” as set forth in Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982) and Baldwin County Welcome Center v. Brown, 466 U.S. 147, 104 S.Ct. 1723, 80 L.Ed.2d. 196 (1984). After conducting such hearing on August 6, 1984 the Court now enters its findings and conclusions.

The Plaintiffs Martha Watkins, Shirley D. McCurry and Lucy R. Pace are all native born, white American females and were employed by the Defendant Milliken at its Hatch Mill plant in Columbus, North Carolina. Plaintiff Watkins was discharged from such employment on April 26, 1982, at the age of fifty-eight (58). She contends that she was discharged because of her age, sex and national origin. Plaintiff McCurry was discharged from Milliken’s employment on June 23, 1982 at the age of forty-eight (48) and contends that such discharge was because of her age, sex and national origin. The Plaintiff Pace was discharged on May 18, 1982 and alleges that her age and national origin were the real reasons for such discharge.

The Plaintiff Watkins first contacted EEOC by letter dated May 26, 1982 addressed to the Charlotte office and received there on May 28, 1982. She stated in the letter that Milliken was contending that she was fired for misconduct and insubordination but “I have reason to believe my job was given to a young Cambodian boy named Lor Lee. I am 58 years old.” EEOC personnel treated the complaint as an age discrimination charge. Mrs. Watkins visited the office in person on June 17, 1982 and entered upon what EEOC calls its “intake” process. The first step of this procedure requires the complaining party to fill out an “Intake Questionnaire” without assistance from EEOC personnel. In response to the question in the form as to “what action was taken against you that you believe to be discriminatory” she stated, “I believe I was fired because of my age.” The questionnaire provided her an opportunity to identify the cause of her discharge, be it race, sex, religion, national origin, or other discrimination, and to so indicate by checking the appropriate box or boxes on the form. She admitted that she did not check any of the boxes but wrote below the boxes, “I believe I was fired because of my age.”

The next step in her “intake” process was an interview with Tony L. Caulder, Intake Equal Opportunity Specialist to whom her complaint had been assigned. He had before him her letter of May 26, 1982 and the questionnaire which she had just finished. Mr. Caulder went through the EEOC process of “pre-charge counsel-ling” in which he explained to her what kinds of employment discrimination were prohibited by Title VII. Mrs. Watkins did not deny that she was told by Mr. Caulder that the EEOC had authority to accept and investigate charges of national origin discrimination. She testified and set forth in her affidavit filed with the Court that during the interview with Mr. Caulder she told him that she had been replaced by a young Cambodian male, that Milliken was replacing many employees with Cambodians because she believed the government was subsidizing the Cambodians' pay and that she believed it was wrong for Milliken to take a woman’s job and give it to a man. She testified that Mr. Caulder responded to the effect that EEOC could not help her and the others concerning the Cambodians taking people’s jobs but that they would try to help if her job was taken because of her age or sex.

Mr. Caulder testified at the hearing that he took more than three pages of notes during the intake interview and the notes indicate that Mrs. Watkins told him that another employee told her that she had been replaced by a Cambodian, named Lor Lee approximately 30 years old; that he had worked in her department while she was there; that Mr. Lee is a bit dark in color and that Lucy Pace was replaced by a female Cambodian, name unknown. He denied telling Mrs. Watkins or any other person that the EEOC could not help concerning the “Cambodians taking people’s jobs,” stating that he had never made any such statement to any charging or complaining party. After the interview Mr. Caulder drafted a formal charge of discrimination for Mrs. Watkins identifying both age and sex discrimination and presented it to her for her examination. She was invited to make any changes, corrections or additions but she made none. Mrs. Watkins does not contend that she made any effort to change the charge and states that she signed and swore to the paper writing that day while in the office.

Mrs. Watkins testified that about seven or eight months later she received a telephone call from a person who identified himself as William H. Convey, Jr., EEOC investigator to whom the charge had been assigned. She states that during the conversation Mr. Convey told her in effect that EEOC could not really help her with the sex discrimination charge but that if she would drop that charge they would be able to help her with the age discrimination charge. Mr. Convey’s account of the conversation differs sharply. His notes indicate that after a discussion with her she stated that she thought age was the primary reason for the action taken against her. Based upon the conversation and her statement he said it was decided to amend sex out of the charge. He advised Mrs. Watkins that a new charge would be typed and mailed to her for review, date and signature. Mr. Convey testified that he did not tell Mrs. Watkins that the EEOC could not help her with the sex charge nor did he use any words to that effect. That the decision to amend-out sex discrimination was mutually agreed upon, that she made no effort to amend-in any other charge such as national origin and that it is a normal procedure, in conversations' with charging parties, both to amend-in and amend-out claims or allegations. He then mailed the amended charge containing only the age discrimination and she signed it and returned it to the Charlotte office.

The Court finds that the accounts of these transactions given by the EEOC representatives are more credible for three reasons. First they testified from notes made contemporaneously with the conversations, second, they have no interest in these proceedings, and third, the Plaintiffs who made no notes are interested in the proceeding and have made prior inconsistent statements about the subject matter. In addition it seems illogical that employees of the EEOC would tell a complaining party that they could not help her on a charge of national origin or sex discrimination in employment. The Court finds it difficult to accept such testimony particularly about sex discrimination charges in light of the many cases appearing on the calendars of this Court over the years in which sex discrimination charges had been investigated by EEOC.

On May 20, 1982, six days before she first contacted the EEOC she filled out a complaint form furnished to her by the North Carolina Human Relations Council in which she said age discrimination was the cause for her discharge. The form, like the EEOC form, contained a question as to why she thought she had' been treated, ,unfairly and she selected age as the reason and did not cheek the box for sex, or color or race or religion, or national origin. This selection was her own act and could not have been influenced by any official of EEOC.

In January 1983 she wrote to United States Senator John East to seek his assistance and stated: “I’ll get right to the point. I was fired from my job on the 26th of April of 1982. I had worked for Milliken & Co. for about 12 years. I am 59 years old. I feel like I was fired because of my age. Milliken fired five people about the same time I was fired, all females over forty years old.”

The Plaintiff Shirley D. McCurry also contends that her efforts to file national origin discrimination were rejected by EEOC personnel. She visited the Charlotte office on June 25, 1982 to complain about her discharge on June 23, 1982. In answer to the question as to what action was taken against her that she believed was discriminatory she stated in her “Intake Questionnaire” that “my age and they treated me in a very unfair way trying to force me to quit, and I didn’t so they took action.” In addition in another space in the questionnaire she stated, “hiring forign (sic) imports in” as a reason why the company took action against her. She does not contend that the EEOC employees told her they could not help on the national origin discrimination claim but merely states that she relied upon them to advise her on the charges of discrimination which she had a right to claim against Milliken. Mrs. McCurry was interviewed by Shirley Escribano, an EEOC Specialist, who testified that she explained to Mrs. McCurry EEOC’s enforcement responsibility over Title VII charges and expressly mentioned all categories of prohibited discrimination, including national origin. Mrs. McCurry does not deny this statement. Ms. Escribano testified from notes made during the interview. Toward the end of the interview Mrs. McCurry stated that three other females, over forty years of age, were discharged near the same time of her discharge and that she had noticed a lot of Cambodians being hired in the winding department. At the conclusion of the interview Ms. Escribano drafted a handwritten charge of age discrimination for Mrs. McCurry’s review and signature. The charge was reviewed with Mrs. McCurry and she made no suggested changes, deletions or additions. It was signed and sworn to that day and Mrs. McCurry never communicated any dissatisfaction with the charge to the officer or anyone else at EEOC. In a four page letter dated March 23, 1983, to EEOC investigator William Convey, who had been assigned to investigate the charge, Mrs. McCurry made repeated references to age discrimination but never mentioned sex or national origin discrimination, except in one instance to say that a Cambodian had been treated better than she on a complaint about the quality of the work. She expressed no dissatisfaction with the charge of age discrimination. There is no evidence that any EEOC employee attempted by any means to dissuade Plaintiff McCurry from filing or pursuing a charge of sex or national origin discrimination.

The Plaintiff Lucy R. Pace first contacted the EEOC by letter dated June 11, 1982 and received and docketed by EEOC on June 15, 1982. The letter referred to age and made no mention of any other kind of prohibited discrimination. In her initial response to Milliken’s motion to dismiss, she filed an affidavit with the Court in which she stated that her letter to the EEOC complained of age discrimination and the influx of foreign-born workers and that her job was given to a foreign-born worker. Her original affidavit contained the statement that during her visit to the EEOC office she made several statements to the intake officer to the effect that Milliken was discriminating against older, American workers in favor of foreign workers, and that “the EEOC responded to my statements to the effect that the EEOC could not help on the issue of jobs being given to foreign people, but they would look into the possibility of age discrimination.” However when confronted with a copy of the letter from her to EEOC which made no reference to foreign-born workers or any other type of discrimination except age Mrs. Pace filed a “supplementary” affidavit in which she explained that she had first prepared the letter mentioning foreign workers, but then “talked to a co-worker who advised (her) the EEOC wouldn’t help (her) with the issue of Cambodians taking people’s jobs.” She then states that she removed all mention of foreigners from the letter and sent it to the EEOC. Mrs. Pace does not identify the co-worker who advised her that the EEOC would not help with such a charge but it appears that such information could not have come from Plaintiff Watkins or Plaintiff McCurry. Mrs. Pace’s letter is dated June 11, 1982 and received by EEOC on June 15, 1982. While Mrs. Watkins did not visit the EEOC office until June 17, 1982 and Mrs. McCurry did not go until June 25, 1982. Such a conflict precludes the Court from crediting her testimony that anyone at the EEOC told her or the other Plaintiffs that they “could not or would not help” on the national origin issue of discrimination.

Mrs. Pace, as did the other Plaintiffs, completed an intake questionnaire in which she stated that she believed she was discharged because of her age. This was done without any aid, advice or interference from the EEOC personnel. She was interviewed by Tony Caulder, the same officer who assisted Mrs. Watkins, and he testified that he conducted the usual precharge counselling covering all Title VII jurisdictional categories. After the interview he prepared a draft charge based upon the information furnished and submitted it to Mrs. Pace for approval and signature. She was advised that she could make any changes, additions or deletions she cared to make. She signed a written charge containing only age discrimination. Mr. Caulder’s intake notes indicates that Mrs. Pace made reference to some young Cambodians both male and female and described one instance in which a young Cambodian male had received better treatment than, .she in a work related problem.

The EEOC’s internal regulations, published in the EEOC Compliance Manual, §§ 2-6, Bureau of National Affairs (1979), at p. 2:0006, provide express instructions to intake officers such as Caulder and Escribano in situations as alleged by these Plaintiffs. This instruction is as follows:

Do Not Refuse To Take Charge. The foregoing provisions notwithstanding, a potential charging party should not be turned away who wishes to proceed in making a charge; if a person insists on filing an invalid charge, it should be taken.

The Court finds and concludes from the evidence, and its greater weight, that the EEOC personnel, Caulder and Escribano conferred with the Plaintiffs and advised each of them as to the jurisdiction of the Commission under Title VII and while they expressed their opinion as to what charge the evidence would support, they did not refuse to accept any charge or state they could not or would not help them on charges of sex and/or national origin discrimination. The Court finds that the evidence does not establish that the EEOC, or any of its personnel engaged in any acts or conduct which would result in a waiver, estoppel or equitable tolling of the statutory requirements in question here.

As shown in the Memorandum and Order dated June 26, 1984, it is not disputed that the EEOC never notified the Defendant Milliken that the Plaintiffs had filed any charge other than age discrimination. It is also not in dispute that the EEOC never investigated, attempted to investigate, conciliated, or attempted to conciliate any of the charges on any basis other than age discrimination.

There is no evidence to support any contention that the Defendant has either waived its right to raise the defense of Plaintiffs’ failure to satisfy statutory prerequisites to suit under Title VII, or engaged in any conduct which would estop the Defendant from raising such defenses.

These motions to dismiss are filed under Rules 12(b)(1) and (6), F.R.Civ.P. and question both this Court’s jurisdiction to entertain the claims as well as the sufficiency of the allegations to state a claim under Title VII. Since the parties have presented live and affidavit testimony, as well as numerous documents, all of which have been considered by the Court, the motions to dismiss must be treated as motions for summary judgment under Rule 56, F.R.Civ.P.

In Mortensen v. First Federal Savings and Loan Ass’n, 549 F.2d 884 (3rd Cir.1977), the procedure for the determination of a motion to dismiss for lack of subject matter jurisdiction is outlined as follows:

The procedure under a motion to dismiss for lack of subject matter jurisdiction is quite different. At the outset we must emphasize a crucial distinction, often overlooked, between 12(b)(1) motions that attack the complaint on its face and 12(b)(1) motions that attack the existence of subject matter jurisdiction in fact, quite apart from any pleadings. The facial attack does offer similar safeguards to the plaintiff: the court must consider the allegations of the complaint as true. The factual attack, however, differs greatly for here the trial court may proceed as it never could under 12(b)(6) or Fed.R.Civ.P. 56. Because at issue in a factual 12(b)(1) motion is the trial court’s jurisdiction — its very power to hear the case — there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiff’s allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. Moreover, the plaintiff will have the burden of proof that jurisdiction does in fact exist. 549 F.2d at 891.

See, McLain v. Real Estate Board of New Orleans, Inc., 583 F.2d 1315, 1318, n. 1 (5th Cir.1978), vacated and remanded on other grounds, 444 U.S. 232, 100 S.Ct. 502, 62 L.Ed.2d 441 (1980). 5 C. Wright & A. Miller, Federal Practice and Procedure § 1350 at 555 (1969).

On the question of its own jurisdiction to hear these claims, the Court, as fact finder, may weigh the evidence to resolve disputed factual issues. Having done so this Court concludes that it lacks subject matter jurisdiction of the Plaintiffs’ individual and class claims of sex and national origin discrimination under Title VII. The reasons for such conclusion are set forth in this Memorandum of Decision and the Memorandum and Order dated June 26, 1984.

Congress enacted Title VII of the Civil Rights Act of 1964 to assure equality of employment opportunity by eliminating those practices and devices which discriminate on the basis of race, color, religion, sex, or national origin. It selected as the preferred means of achieving this goal the voluntary compliance of the parties. ■ The Congress created the Equal Employment Opportunity Commission and established procedures whereby state and local equal employment opportunity agencies, as well as the Commission, would have an opportunity to settle disputes through conference, conciliation, and persuasion before the aggrieved party was permitted to file a lawsuit. Alexander v. Gardner-Denver Company, 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). As the Supreme Court has recently pointed out, “Title VII sets forth ‘an integrated, multistep enforcement procedure’ that enables the Commission to detect and remedy instances of discrimination. (citation omitted). The process begins with the filing of a charge with the EEOC alleging that a given employer has engaged in an unlawful employment practice.” EEOC v. Shell Oil Co., 466 U.S. 54, —, 104 S.Ct. 1621, 1627, 80 L.Ed.2d 41, 52 (1984) (footnote omitted), quoting, Occidental Life Insurance Co. v. EEOC, 432 U.S. 355, 359, 97 S.Ct. 2447, 2450, 53 L.Ed.2d 402 (1977).

Judge Russell, speaking for the Court in King v. Seaboard Coast Line R. Co., 538 F.2d 581 (4th Cir.1976), said:

Title VII is limited in application to discrimination in employment based on race, color, religion, sex or national origin; it does not cover other types of discrimination, however unfair they may be. And one who seeks relief under that Title must, as a prelude to any right to sue, file a charge “in writing” and “under oath” with the EEOC within ninety days (now 180 days) after the act of discrimination of which he complains occurred. That charge, enlarged only by such EEOC investigation as reasonably proceeds therefrom, fixed the scope of the changing party’s right to institute a civil suit. The suit filed may encompass only the “discrimination stated in the charge itself or developed in the course of a reasonable investigation of that charge.” EEOC v. General Electric, 532 F.2d 359 (4th Cir.1976).

In United Black Firefighters of Norfolk v. Hirst, 604 F.2d 844 (4th Cir.1979), the Court held that,

... a plaintiff in a civil action under Title VII must allege and prove the filing of a timely charge of discrimination with the Equal Opportunity Commission together with receipt of, and action on, a statutory notice of his right to sue. 42 U.S.C.A. § 2000e-5(f)(l). Neither the complaint nor the amended complaint alleges that any of the applicant-plaintiffs complied with these prerequisites. They were not entitled to sue under Title VII, and their claims were properly dismissed. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011 [1019], 39 L.Ed.2d 147.

The Courts have somewhat relaxed their strict adherence to the statutory requirements as prerequisites to the institution and maintenance of suit in federal court under Title VII, but no court has held that Plaintiffs can bypass the EEOC and all of the requirements of the statute. In Perdue v. Roy Stone Transfer Corp., 690 F.2d 1091 (4th Cir.1982), the Court held under the facts of that case that it is the entitlement to a “Right to Sue” notice, rather than its actual issuance or receipt, which is a prerequisite to the jurisdiction of the federal courts under § 2000e-5(f)(l). Going one step.behind the issue in Perdue, howevel-,. it is cíear that-the filing of a Title VII charge of discrimination is a prerequisite to the “entitlement” to the notice of right to sue discussed therein. The Supreme Court has recently held that, “the existence of a charge that meets the requirements set forth in § 706(b), 42 U.S. C.A. § 2000e-5(b), is a jurisdictional prerequisite to judicial enforcement of a subpoena issued by the EEOC.” EEOC v. Shell Oil Co., supra (emphasis added). If the existence of a valid charge is a jurisdictional prerequisite to the EEOC’s entering upon the first step of the enforcement procedures given the agency under Title VII, this Court has no reluctance in similarly holding with regard to the final step of the enforcement procedures allotted to private litigants under Title VII.

However, as has recently been made clear the, “filing of a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel and equitable tolling.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). (emphasis added). There is no dispute in these matters concerning whether Plaintiffs Watkins, McCurry, and Pace filed timely charges of age discrimination under the ADEA. Nor is there any dispute concerning whether Defendant Milliken has engaged in any conduct by which it could be said to have waived, or to be estopped from asserting, the defenses of failure to file Title VII charges and failure to receive right to sue notices under Title VII. The only question, therefore, is Plaintiffs’ contention that, under the circumstances of these cases, Title VII’s charge-filing and notice of right to sue requirements should be equitably tolled, and, as has been noted above, on this issue the burden of proof lies upon Plaintiffs.

Plaintiffs argue that these cases fall within that line of cases which permit suit under Title VII when, through no fault of the plaintiff, the EEOC has acted in some fashion to preclude the plaintiff from satisfying all of the statutory preconditions tb'. suit. Plaintiffs rely upon such decisions as Perdue, supra; National Organization for Women (NOW) v. Sperry Rand Corp., 457 F.Supp. 1338 (D.Conn.1978); and Moore v. Memphis Light, Gas & Water, 21 EPD ¶ 30,379 (W.D.Tenn.1979). Those cases do indeed stand for that proposition. In Perdue, the Fourth Circuit held that plaintiff, whose charge of discrimination had resulted in an EEOC-approved conciliation agreement with her employer, could sue under Title VII for the employer’s alleged breach of the agreement even after EEOC refused her request for a right to sue notice after the breach. Similarly, in NOW, the court held that EEOC’s failure to issue a notice of right to sue to that organization, after an EEOC officer told the organization it lacked standing to pursue sex and race charges jointly with an individual charging party, did not bar a subsequent suit in federal court by both NOW and the individual plaintiff. It is important to note, of course, that in both Perdue and NOW, the defendants had received notice that Title VII charges had been filed against them, and that the plaintiffs had, “done everything within [their] power to comply with the procedural requirements of Title VII, ...” NOW, 457 F.Supp. at 1342. Finally, in Moore, the court permitted suit under Title VII despite the fact that no Title VII charge had been filed. However, in that case, the evidence revealed that plaintiff’s attempt to file a race discrimination charge had been rejected by EEOC for plaintiff’s failure to identify a white person who had been better treated in a similar situation. Moore, 21 EPD ¶ 30,379.

All of these decisions fall within the general rule announced by the Fourth Circuit that, “A Title VII complainant is not charged with the Commission’s failure to perform its statutory duties.” Russell v. American Tobacco Co., 528 F.2d. 357, 365 (4th Cir.1975), cert. denied, 425 U.S. 935, 96 S.Ct. 1666, 48 L.Ed.2d 176 (1976) (suit permitted where, after valid charge was filed, EEOC completely neglected to inform defendant that charge had been filed). This Court readily accepts the Russell principle; it is a principle, however, which has no application to the facts of this case.

The Court has found that the EEOC neither rejected Plaintiffs’ attempts to file charges of sex and reverse-national origin discrimination nor in any fashion attempted to dissuade Plaintiffs from filing such charges. Rather, while Plaintiffs did make some references to Cambodians in Defendant’s work place, they all consistently identified their age as being the cause of their discharges. Each Plaintiff freely signed charges alleging only age discrimination after being specifically invited by the EEOC representative to make any additions or changes to the charges drafted by EEOC. Plaintiffs neither made nor attempted to make any such changes; nor, apparently, did any Plaintiff ever voice any objection to the contents or scope of their charges until after Defendant had filed and served its motion to dismiss.

The facts of these cases take them outside the scope of the Russell decision. It is clear here that the EEOC is not guilty of misfeasance or nonfeasance in the performance of its statutory duties under Title VII. The case of Hawkins v. Allis-Chalmers, 527 F.Supp. 895 (W.D.Mo.1981) seems to fit the facts of these cases and is far more persuasive on this issue. In Hawkins, the plaintiff attempted to sue both her employer and her union under Title VII. The union moved to dismiss for lack of subject matter jurisdiction because no charge of discrimination had been filed against it. The plaintiff argued that “she told the EEOC to charge both the employer and the union, but EEOC failed to do so,” and urged the court to apply the Russell rule permitting suit when jurisdictional failures were caused by EEOC. The court declined plaintiff’s suggestion as it recognized the critical distinction between jurisdictional failures chargeable only to EEOC and others which are not. Judge Hunter in language equally applicable here, stated:

All of the above (Russell -type) situations were procedures completely within the control of EEOC. The charge, however, is not completely within the EEOC’s control in that the charging party must sign the charge. In her affidavit in support of her opposition to defendant’s motion to dismiss, plaintiff states that she signed the charges. This situation is more similar to that in Bryant v. Western Electric Co., 572 F.2d 1087 (5th Cir.1978). In Bryant, the plaintiff had been employed by Western Electric. He claimed that he told the EEOC that Western was his employer and then signed the charge prepared by the EEOC. The charge named South Central Bell instead of Western. The district court could find no theory which would allow the plaintiff to avoid the requirement of a charge naming the party being sued, and the Fifth Circuit affirmed.

Id., 527 F.Supp. at 897-98.

As in the Hawkins and Bryant cases, this Court can find no reason to toll the requirement that these Plaintiffs shall file Title VII charges of sex and national origin discrimination against the Defendant before launching a wide-ranging class action on such charges. The Defendant has not had its statutorily-required opportunity to conciliate such charges through EEOC and EEOC has made no investigation of such charges. None of these failures were the fault of EEOC or the Defendant. Each of the Plaintiffs were fully advised of the procedure and elected to pursue age discrimination charges only. This Court lacks subject matter jurisdiction over these Title VII claims and they will be dismissed.

In addition to Title VII relief the Plaintiffs seek individual and class relief under the ADEA and request the Court to certify a class of Hatch Mill employees who have been terminated or discriminated against in their employment because of age, the class to consist of all persons over tbe age of 40 years, and to notify potential class members of their inclusion in these actions and of their right to opt-out, all as provided for by Rule 23, F.R.Civ.P. Along with the filing of the complaints the Plaintiffs served upon the Defendant interrogatories which request, inter alia, the names, ages and last known address of all persons employed at Hatch Mill during the past seven years.

The Defendant moved to dismiss Plaintiffs’ ADEA claims to the extent that such claims seek Rule 23 class relief, arguing that the Act permits no such relief and that the allegations fail to state claims upon which such relief can be granted, Rule 12(b)(1), F.R.Civ.P. The Plaintiffs in responding to the Defendant’s motion to dismiss recognize the inapplicability of Rule 23 to ADEA actions and concede that any “class” type relief under the ADEA is only available pursuant to the “representative action” provisions found in § 16(b) of the Fair Labor Standards Act, as amended, 29 U.S.C.A. § 216(b). Nevertheless, the Plaintiffs seek certification under § 216(b) of the FLSA and “request answers to their discovery of the names, addresses and birth dates of potential class member so they may be notified of their right to opt in.”

The Plaintiffs’ efforts to bring an age discrimination class action under Rule 23, fails to state a claim upon which relief can be granted. Section 7(b) of the ADEA provides, in pertinent part, that, “the provisions of this chapter shall be enforced in accordance with the powers, remedies, and procedures provided in Sections 211(b), 216 [except for subsection (a) thereof], and 217 of this title ...” 29 U.S.C.A. Section 626(b). Section 216 of Title 29 is the codification of Section 16 of the Fair Labor Standards Act (FLSA), 29 U.S.C.A. Section 216, and in Section 16(b) of the FLSA, Congress provided a specific mechanism for “representative” actions under the law, a mechanism also incorporated in toto in the ADEA.

Section 216(b) of FLSA provides that:
An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer ... in any Federal or State court of competent jurisdiction by any one or more employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought. (Emphasis added).

Thus Section 216(b) provides for the maintenance of an “opt in” class action in clear contradistinction to the “opt out” class action devise provided by Rule 23.

As set forth in LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286 (5th Cir.1975):

There is a fundamental, irreconcilable difference between the class action described by Rule 23 and that provided for by FLSA § 16(b). In a Rule 23 proceeding a class is described; if the action is maintainable as a class action, each person within the description is considered to be a class member and, as such, is bound by judgment, whether favorable or unfavorable, unless he has “opted out” of the suit. Under § 16(b) of FLSA, on the other hand, no person can become a party plaintiff and no person will be bound by or may benefit from judgment unless he has affirmatively “opted into” the class; that is, given his written, filed consent, (citation omitted).
Rule 23(c) provides for “opt out” class action. FLSA § 16(b) allows as class members only those who “opt in.” These two types of class actions are mutually exclusive and irreconcilable. Since ADEA § 7(b) adopts FLSA § 16(b), we must hold that only “opt in” type class actions may be utilized in age discrimination cases. Rule 23 cannot be invoked to circumvent the consent requirement of the third sentence of FSLA (sic) § 16(b) which has unambiguously been incorporated into ADEA by its Section 7(b).

Id., 513 F.2d at 288-89 (footnotes and citations omitted).

LaChapelle has been looked upon with favor by virtually every federal court to decide this question. While the Court of Appeals for the Fourth Circuit has not directly addressed the question every district court in the circuit to have considered the question has followed LaChapelle.

Judge Gordon in two decisions from the North Carolina Middle District granted the defendants’ motions to dismiss and strike the plaintiffs’ Rule 23 class action allegations brought under ADEA. Hill v. Western Electric Co., 76 F.R.D. 4 (M.D.N.C.1976) and Wagner v. Loew’s Theatres, Inc., 76 F.R.D. 23 (M.D.N.C.1977).

The Court holds that the Plaintiffs may not maintain a class action under the “opt out” provisions of Rule 23. The language of the ADEA itself, by its explicit incorporation of the “opt in” provision of Section 16(b) of FLSA, 29 U.S.C.A. Section 216(b), clearly prohibits the Plaintiffs’ efforts to have this Court treat these actions as Rule 23 class actions and “proceed to certify the class and subclasses set out in paragraph 2.3 of the complaints. Rather, as the authorities cited above” have held, these actions may only be maintained as representative actions on behalf of those similarly situated persons who first affirmatively “opt in” to the actions by filing written consents with the court. Nor is the Court persuaded that § 16(b) of the FLSA permits either discovery of “class members’ ” names and addresses or notice to them of their right to “opt in.”

Section 16(b) of the FLSA was enacted as a measure to prohibit the kind of notice-based class action procedures contained in Rule 23. As the Court of Appeals for the Ninth Circuit has recently held:

the FLSA contains no specific authority for giving notice to class members who are potential party plaintiffs. Rule 23, of course, provides for court-directed notice to class members ... most courts that have interpreted the FLSA, including this court, have held that neither the named plaintiffs, their counsel, nor the court have the power to provide notice to FLSA class members. [Kinney Shoe Corp. v. Vorhes, 564 F.2d 859,] 863 [ (9th Cir.1977) ]; Locascio v. Teletype Corp., 74 F.R.D. 108, 112 (N.D.Ill.1977); Roshto v. Chrysler Corp., 67 F.R.D. 28, 30 (E.D.La.1975); McGinley v. Burroughs Corp., 407 F.Supp. 903, 911 (E.D.Pa.1975).

Partlow v. Jewish Orphans’ Home, 645 F.2d 757, 758-59 (9th Cir.1981). The Kinney line of authority continues to be the majority rule and the rule within the Fourth Circuit. See, e.g., Haynes v. Singer Co., Inc., 696 F.2d 884 (11th Cir.1983); Schmidt v. Fuller Brush Co., 527 F.2d 532 (8th Cir.1975) (mandamus lies against district court’s certification of FLSA class action and order requiring notice to potential class members); Baker v. The Michie Co., 93 F.R.D. 494 (W.D.Va.1982); Madrigal v. Green Giant Co., 25 W.H. Cases 89 (E.D.Wash.1981) (representative parties not entitled to order requiring employer to furnish list of names of potential class members); and Montalto v. Morgan Guaranty Trust Co., 83 F.R.D. 150 (S.D.N.Y.1979).

The Court of Appeals for the Tenth Circuit has recently spoken to the precise issue presented by this case. In Dolan v. Project Construction Corp., Etc., 725 F.2d 1263, 26 W.H. Cases 984 (10th Cir.1984), a FLSA plaintiff filed a “representative” action and served upon defendant interrogatories which demanded that defendant, “[s]tate the name and last known address of each employee of the defendant ... within the last two years including the date of hire, date of termination, days and hours of each day worked, the wage paid said employee ... [etc.]” Id. at 1265.

In Dolan, the Tenth Circuit assayed the propriety of such interrogatories against the legislative history clearly evincing congressional disapproval of such tactics. Borrowing at length from the court’s opinion, the degree to which plaintiffs would have this Court circumvent the will of Congress becomes clear:

In its original form, the FLSA made provision for an action by an employee in behalf of himself and other employees similarly situated. However, after decisions of the United States Supreme Court interpreted the FLSA to provide for compensation that historically had not been reimbursed, [citation omitted] a virtual flood of litigation ensued in the form of class actions. Perceiving the flood of litigation as a serious threat to interstate commerce the Congress moved to limit the applicability of the FLSA to certain industry practices. Particularly relevant here, the Congress also limited the class action procedures for filing representative actions. In describing the financial burdens affecting interstate commerce, the House of Representatives’ Report stated:
“The procedure in these suits follows a general pattern. A petition is filed under section 16(b) ... by one or two employees in behalf of many others. To this is attached interrogatories calling upon the employer to furnish specific information regarding each employee during the entire period of employment. The furnishing of this data alone, is a tremendous financial burden to the employer.”
H.R.Rep. No. 71, 80th Cong., 1st Session 4 (1947); 1947 U.S. Code Cong. & Ad. News (80th Cong., 1st Session) 1029, 1032. Not only did Congress disapprove of the normal discovery practices associated with class actions, but it also made the specific finding that unless the provisions of the FLSA of 1938 were changed “the courts of the country would be burdened with excessive and needless litigation and champertous practices would be encouraged.” § 1(a)(7) Portal-to-Portal Act of 1947.
The opt-in language of § 216(b) was a direct result of this clear congressional dissatisfaction with the original class action provisions of the FLSA. In fact, the relevant language of § 216(b) was entitled, “Representative Actions Banned” in the Portal-to-Portal Act.
Clearly, Congress sought to limit the nature of a class action suit based upon an alleged FLSA [or ADEA] violation. While still providing for collective and representative actions, it intended to severely limit the burden on the defendant and the participation of the court.

Dolan v. Project Construction Corp., 725 F.2d at 1266, 1267, 26 W.H. Cases at 985-86 (emphasis added).

It is under the same statute, with the same legislative history that the Plaintiffs ask this Court to proceed as if the distinction between 29 U.S.C.A. Section 216(b) and Rule 23 did not exist. The Court can find no reason to disregard the words of the statute and the holdings in LaChapelle, Hill and Wagner, and the host of other eases denying such proceedings.

For the foregoing reasons the Plaintiffs’ ADEA allegations are not maintainable in the fashion of a Rule 23 class action. The Court will not compel notice or production of names of potential class members. The Court will allow a reasonable length of time for potential parties-plaintiffs to “opt in” by filing written consent to be made such parties. See Naton v. Bank of California, 649 F.2d 691, 693 (9th Cir.1981) (30 days in which to “opt in” approved).

These actions have been pending for several months and the Court believes that prospective plaintiffs have had time to hear of its pendency and thirty days should be long enough for them to “opt in.” The Court will allow thirty days from the date of this Memorandum of Decision for other parties-plaintiffs to file written consents to become parties to these actions.

Each Plaintiff alleges that her discharge by the Defendant constituted a breach of her employment contract in violation of North Carolina law. They all allege the existence of an implied contract which is said to arise from the fact that the Defendant had in effect personnel policies which afforded rights based on seniority and performance evaluations and rights to oral and written warnings prior to severe disciplinary action. The Defendant admits that the Plaintiffs were discharged but it contests this Court’s jurisdiction over these state law claims — claims which Plaintiffs’ counsel admit could have been, and could still be brought and raised in state court.

Federal courts have the power to exercise pendent jurisdiction when the federal and state claims “derive from a common nucleus of operative fact” and the claims are such that the plaintiff would “ordinarily be expected to try them all in one judicial proceeding.” United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Ferguson v. Mobil Oil Corp., 443 F.Supp. 1334 (S.D.N. Y.1978), aff'd mem., 607 F.2d 995 (2nd Cir.1979). Even if the power is found, Gibbs does not “require” the district court to hear the state claim. Hughes v. Marsh Instrument Co., 28 F.E.P. Cases (N.D.Ill.1981). Having found the power, the Court must also consider, in its discretion, whether “judicial economy, convenience and fairness” will be served. These considerations include determining such issues as whether jury confusion will result, whether state claim issues will predominate, or whether state claim issues will present unsettled issues of state law.

The only remaining federal claim is each Plaintiff’s allegation of age discrimination. They have requested a jury trial and under the statute they are entitled to one. Lorillard v. Pons, 434 U.S. 575, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978). The Plaintiffs would also be entitled to a jury trial on their common law contract claims if those claims remain as pendent to their age claims.

In the ADEA claims the sole dispositive issue will be whether the Plaintiffs were discharged because of their age. Lovelace v. Sherwin-Williams Co., 681 F.2d 230 (4th Cir.1982). In order to prevail upon their contract claims the Plaintiffs will be required to prove the existence of the alleged “policies and practices” said to constitute the implied contracts. There appears to be no relationship between the existence of such policies and practices, on the one hand, and their contentions that they were discharged because of their age, on the other. Since the Defendant admits that it discharged the Plaintiffs, their proofs with regard to their contract claims will need to focus, not on the discharge but upon facts said to support the formation of the contracts in the first place. The facts pertaining to an implied contract would have no connection or bearing on whether the Plaintiffs were discharged because of their age. For these reasons, the Court finds and concludes that the Plaintiffs’ federal and state claims do not derive from a “common nucleus of operative fact,” as required by Gibbs, and that this Court therefore lacks the power to entertain the state law claims.

Assuming for the sake of argument that the Court had the power to adjudicate the contract claims, there are two compelling reasons for it to decline to exercise that power. First, the Court is of the opinion that there exists a substantial possibility of jury confusion in the mixing of the age claims and the implied contract claims. Second, the state of the law in the private-sector, at-will employment in the State of North Carolina.

Neither the Supreme Court nor the General Assembly of North Carolina has yet recognized an “implied contract” exception to the general rule of at-will employment. While in some cases, particularly those involving public employees, it may arguably be appropriate to incorporate disciplinary or other personnel policies into an employment contract otherwise silent on such matters, see, e.g. Rhodes v. Board of Education of Person County, Etc., 58 N.C.App. 130, 293 S.E.2d 295, rev. denied, 306 N.C. 744, 295 S.E. 479 (1982), it remains the rule in North Carolina that, absent agreement upon a definite term of duration, employment contracts are terminable at the will of either party without regard to cause. See, e.g., Still v. Lance, 279 N.C. 254, 182 S.E.2d 403 (1971); Brooks v. Carolina Telephone & Telegraph Co., 56 N.C.App. 801, 290 S.E.2d 370, 372 (1982).

The Court is of the opinion that the proper arena for the resolution of such far-reaching questions of state employment should be the state court or legislature. See, e.g. Dockery v. Lampart Table Co., 36 N.C.App. 293, 244 S.E.2d 272, rev. denied, 295 N.C. 465, 246 S.Ed.2d 215 (1978). The Court agrees with Judge Erwin’s reasoning in Sanders v. Duke University, 538 F.Supp. 1143 (M.D.N.C.1982), when he said: “The question of whether a university’s faculty handbook is part of an employment contract ... has not been addressed by the North Carolina courts, (citation omitted) Accordingly, the courts of North Carolina, not a federal court, should initially resolve the issue.” Id., 538 F.Supp. at 1148.

The Court therefore concludes that, even if it possessed the power to entertain Plaintiff’s implied employment contract claims, which it does not it would not exercise that power because of the likelihood of jury confusion and the issues therein would be best decided, for the first time, by the state courts. Accordingly, the Defendant’s motion to dismiss the state law contract claims for lack of jurisdiction will be allowed and the claims dismissed.

For the reasons set forth in these findings and conclusions, the Court will grant the Defendant’s motions to dismiss the Plaintiffs’ Title VII claims, their class action claims under ADEA, and the pendent state law employment contract claims. The case will proceed on the claims filed under ADEA but without class action. An appropriate order dismissing those claims and striking them from the complaints will be issued and entered.