author: THOMAS F. HOGAN, District Judge.

text:
    Thomas B. HUDGINS, et al., Plaintiffs, v. INTERNAL REVENUE SERVICE, Defendant.
    Civ. A No. 84-3830.
    United States District Court, District of Columbia.
    Aug. 6, 1985.

      Edward J. Snyder, Atty. Tax Division, U.S. Dept, of Justice, Washington, D.C., for defendant.
    Thomas B. Hudgins, pro se.
    Billie E. Billman, Balboa, Republic of Panama, for plaintiffs.
   MEMORANDUM OPINION

THOMAS F. HOGAN, District Judge.

The plaintiffs have brought this action pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, seeking to compel the Internal Revenue Service (IRS) to release to them certain “documents and records” purportedly within the IRS’s possession and control. The case is presently before the Court on defendant’s motion to dismiss for lack of subject matter jurisdiction, Fed.R.Civ.P. 12(b)(1), on the grounds that plaintiffs have failed to exhaust their administrative remedies. Upon consideration of defendant’s motion, and the plaintiffs’ opposition thereto, this Court concludes that the defendant’s motion must be denied, but that this action shall be dismissed sua sponte for failure to state a claim.

Discussion

On October 17, 1984 the IRS National Office received a letter from plaintiff Hud-gins requesting, under FOIA the “documents” describing: 1) the purpose for which an individual’s social security number, required to be disclosed on federal tax returns, is used in terms of rights, benefits and privileges related to the Social Security Program, 2) the effects, in terms of rights, benefits and privileges under the Social Security Program, of failing to provide the social security number, and 3) whether a social security number is required on a federal tax return to obtain a benefit under the Social Security Program. (Complaint, Exhibit 1; Declaration of P.A. Fauconnet, Chief of the Public Services Branch, Disclosure and Security Division of the IRS [hereinafter Fauconnet Declaration], at ¶ 2.) On October 11, 1984 the IRS received a letter from plaintiff Billman similar to that received from plaintiff Hudgins, but requesting such documents under FOIA related to “federal programs” as opposed to the Social Security Program specifically. (Declaration of H.A. Williamson, Jr., Public Services Branch, Disclosure and Security Division of the IRS [hereinafter Williamson Declaration], at ¶ 2 & Exhibit B.)

The IRS responded to plaintiff Hudgins’ letter on October 26, 1984, nine days after receipt, informing the plaintiff that he had failed to identify the requested records in sufficient detail to permit a search. (Complaint, Exhibit B; Fauconnet Declaration, at ¶ 3.) Plaintiff Billman’s request was responded to five days after receipt, in a letter dated October 16, 1984, informing plaintiff that the information he requested could be found in the Internal Revenue Code. (Williamson Declaration, Exhibit B.)

After the responses from the IRS the plaintiffs did not file anything further with the IRS, but instead initiated this action. The defendants maintain that the plaintiffs’ failure to pursue an administrative appeal constitutes a failure to exhaust administrative remedies, depriving this Court of subject matter jurisdiction.

The Freedom of Information Act does require that an individual exhaust his administrative remedies prior to filing a judicial action. See Hedley v. United States, 594 F.2d 1043 (5th Cir.1979). The Act specifically provides, however, that administrative remedies will be deemed exhausted if the agency fails to comply with the statutory time limitations for making a determination. 5 U.S.C. § 552(a)(6)(C). The defendant asserts that the plaintiffs do not fall within this exception to actual exhaustion of administrative remedies because each of the plaintiffs’ requests was responded to within 10 days of receipt.

With respect to time limitations, however, FOIA specifically provides that the agency shall

determine within ten days ... after the receipt of such request whether to comply with such request and shall immediately notify the person making such request of such determination, and the reasons therefor, and the right of such person to appeal to the head of the agency any adverse determination.

5 U.S.C. § 552(a)(6)(A) (emphasis added). The failure to inform an individual of the right to appeal constitutes a failure to reach a determination within the statutory time limitations. Martinez v. FBI, No. 821547, Mem.Op. (D.D.C. December 1, 1982); Marschner v. Department of State, 470 F.Supp. 196, 198-99 (D.Conn.1979); Shermco Industries v. Secretary of the United States Air Force, 452 F.Supp. 306, 317 (N.D.Tex.1978). The defendant’s letters of October 16 and 26 failed to inform the plaintiffs of their right to appeal, (see Complaint, Exhibit B; Williamson Declaration, Exhibit B), and there is no record that the plaintiffs were otherwise informed, within 10 days of their request, of their right to appeal. Accordingly, plaintiffs are deemed to have exhausted their administrative remedies pursuant to 5 U.S.C. § 552(a)(6)(C).

Nevertheless, because this Court finds that plaintiffs have not requested “records” as that term is employed under FOIA, plaintiffs' claims shall be dismissed for failure to state a claim upon which relief can be granted. Under FOIA an individual may only obtain access to records “written or transcribed to perpetuate knowledge or events.” Di Viao v. Kelley, 571 F.2d 538, 542-43 (10th Cir.1978) (citing Nichols v. United States, 325 F.Supp. 130 (D.Kan.1971), aff'd 460 F.2d 671 (10th Cir.1972), cert. denied, 409 U.S. 966, 93 S.Ct. 268, 34 L.Ed.2d 232 (1972). Therefore, FOIA neither requires an agency to answer questions disguised as a FOIA request, Di Viao, 571 F.2d at 542, or to create documents or opinions in response to an individual’s request for information. See N.L.R.B. v. Sears, Roebuck and Co., 421 U.S. 132, 162, 95 S.Ct. 1504, 1522, 44 L.Ed.2d 29 (1975); Krohn v. DOJ, 628 F.2d 195, 197-98 (D.C.Cir.1980). Plaintiffs’ requests seem to be nothing more than an effort to secure legal research regarding the Internal Revenue Code from the I.R.S. Plaintiffs’ assertion that a response from the defendant that the information requested can be obtained in a public library is “unacceptable as I do not have access to any public libraries that are in the english [sic] language in Panama,” (Plaintiffs’ Memorandum in Response to Order of January 18, 1985) is irrelevant. FOIA creates only a right of access to records, not a right to personal services.

Moreover, even assuming that plaintiffs’ request could be construed to embrace existing documents, an agency is not required to have “clairvoyant capabilities” to discover the requester’s need. See Weisberg v. Department of Justice, 705 F.2d 1344 (D.C.Cir.1983). To trigger the right of access to records under FOIA an individual must reasonably describe the records requested. 5 U.S.C. § 552(a)(3)(A). In doing so, the description must be “sufficiently detailed so that a professional employee of the agency, familiar with the general subject area, could reasonably be expected to find the desired .documents.” H.Rep. 93-876, 93 Cong.2d Sess. 6 (1974); H.Rep. 93-1380, 93 Cong.2d Sess. 7 (1974) U.S.Code Cong. & Admin.News, pp. 6267, 6271. See also Krohn v. Department of Justice, 628 F.2d 195, 198 (D.C.Cir.1980) (citing Irons v. Schuyler, 465 F.2d 608, 610-11 (D.C.Cir.1972), cert. denied, 409 U.S. 1076, 93 S.Ct. 682, 34 L.Ed.2d 664 (1972). The October 1984 responses of the defendant to the plaintiffs’ request clearly reveal that employees of that agency could not comprehend the nature of any records responsive to the request, as discernible from a general fishing expedition for answers to questions. Accordingly, plaintiffs’ action shall be dismissed.

In light of this dismissal, this Court need not address the plethora of motions filed by the plaintiff after the defendant’s motion to dismiss, seeking among other things, to declare section 6012 of the Internal Revenue Code unconstitutional and quash the notices of tax deficiency against the plaintiff. Beyond the facially frivolous nature of these motions, they are by no stretch of reason cognizable under FOIA.


source: Caselaw Access Project

author: PRENTICE H. MARSHALL, District Judge.

license: Public Domain

text:
    William E. BROCK, Secretary of Labor, United States Department of Labor, Petitioner, v. Kenneth F. PACKER, President, Packer Engineering Associates, Inc., Agent of Harold Schmeilski, Fire Marshal, Office of the Fire Marshal, State of Illinois and Harold Schmeilski, Fire Marshal, Office of the Fire Marshal, State of Illinois, Respondents.
    Civ. A. No. 85 C 5635.
    United States District Court, N.D. Illinois, E.D.
    Aug. 6, 1985.
    Edward J. Moran, Asst. U.S. Atty., Anton Valukas, U.S. Atty., Chicago, Ill., for petitioner.
    William J. White, Lord, Bissell & Brook, Chicago, Ill., for respondents.
   MEMORANDUM OPINION AND ORDER

PRENTICE H. MARSHALL, District Judge.

This cause is before the Court on petitioner’s Rule 59 motion to amend the June 28, 1985 order of this court denying petitioner’s petition to enforce federal administrative subpoenas duces tecum issued pursuant to Section 8(b) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 657(b)) to respondent State Fire Marshal and respondent Packer. For the following reasons, petitioner’s motion to amend is granted and petitioner’s subpoenas duces tecum are herein enforced by this court.

Petitioner is conducting a continuing inspection and investigation of a July 23, 1984 catastrophe which occurred at the workplace of the Union Oil Company of California (hereinafter “Union Oil”) located in Romeoville, Illinois. An amine absorber tower, vessel identified as NO. 12 D 701, owned and operated by Union Oil, was a pressure vessel located at the Union Oil workplace. On July 23, 1984, the vessel ruptured catastrophically resulting in the release of propane and butane onto and around the worksite. These combustibles ignited causing fires and explosions. The fires and explosions that occurred resulted in multiple deaths and serious injuries to employees employed at the workplace.

Pursuant to Section 8(a) of the Occupational Safety and Health Act, petitioner initiated an inspection and investigation of this incident for the purpose of determining whether said incident occurred as a result of Union Oil’s failure to comply with the Act and the occupational safety and health standards promulgated pursuant to the Act.

The State of Illinois, through the Office of the State Fire Marshal, also initiated an investigation of this incident to determine whether the incident had occurred as a result of Union Oil’s violation of laws of the State of Illinois. On July 28, 1984, respondent State Fire Marshal issued an administrative search warrant for the seizure of the vessel as “evidence relative to the cause and origin of the fire and explosion at the Union Oil Refinery in Romeo-ville, Illinois ... for inspection and testing purposes if necessary.” Respondent State Fire Marshal thereafter designated respondent Packer as its agent for purpose of such inspection and testing.

Petitioner appeared before the Circuit Court of Will County, Illinois at a hearing regarding enforcement of the State Fire Marshal’s' administrative search warrant. Union Oil also appeared at the hearing and there consented to the seizure of the vessel by respondent State Fire Marshal and delivery of said vessel to respondent Packer. Petitioner entered into an agreement with representatives of respondent State Fire Marshal and Union Oil before the Will County Court relating to the seizure and testing of the vessel by respondent State Fire Marshal therein specifically retaining the full right to exercise his statutory rights under the Occupational Safety and Health Act before the United States District Court should such ever become necessary. Some time thereafter, petitioner was advised by respondent State Fire Marshal that it did not intend to perform any additional testing of the seized property. Thereafter, petitioner promptly issued to respondents, pursuant to Section 8(b) of the Act, federal administrative subpoenas duc-es tecum for the production of sections of said vessel for destructive and non-destructive testing. Petitioner designated as its agent for testing, the National Bureau of Standards, United States Department of Commerce. The National Bureau of Standards, consistent with its statutory function, purpose and authority (15 U.S.C. Section 271, et seq.) is authorized to provide advisory services to governmental agencies on scientific and technical problems, including metallurgical research, the study of alloy steels and light metal alloys, the prevention of corrosion of metals and alloys, and the development of standards for metals. (15 U.S.C. Sections 272(e), 272(f)(16)).

Petitioner, pursuant to Section 8(b) of the Act, seeks enforcement of the federal administrative subpoenas by this court. Union Oil, along with certain other parties involved in the private litigation in the Illinois state courts, were granted the right to intervene in this action. Intervenor Union Oil and respondent Packer have opposed enforcement of petitioner’s subpoenas. In-tervenor Union Oil argues that the Occupational Safety and Health Act does not authorize the issuance by petitioner of administrative subpoenas calling for the production and seizure of private property for the purposes of performing destructive and non-destructive testing. Respondent Packer argued that enforcement of the subpoenas would subject it to contempt due to possible conflicting state and federal court orders relating to the subject property.

This Court, on June 28, 1985, found petitioner’s administrative subpoenas to be valid, however, denied enforcement of petitioner’s subpoenas under the doctrine of comity to the prior existence of in rem jurisdiction over the property by the state court in Will County, Illinois. Proceedings thereafter had before the Will County court have removed this obstacle from enforcement of petitioner’s otherwise valid administrative subpoenas. On July 1,1985, the Will County court exercised its jurisdictional “right to determine ... how far it would permit any other court to interfere with such possession and jurisdiction” over the subject property and determined that this Court’s enforcement of petitioner’s subpoenas would not interfere with the State processes and modified its prior order to accommodate enforcement by this court. Palmer v. Texas, 212 U.S. 118, 29 S.Ct. 230, 232, 53 L.Ed. 435 (1909).

For the foregoing reasons, this court amends its Order of June 28, 1985 and herein orders enforcement of petitioner’s federal administrative subpoenas duces te-cum. This court reaffirms its finding of June 28, 1985 that petitioner’s subpoenas are valid. The subpoenas seek production of relevant evidence, were lawfully issued, and the subject matter of the subpoenas fall clearly within the jurisdiction and authority granted to petitioner by Congress. Further, said subpoenas meet the specific criteria necessary for district court enforcement and are not oppressive in any way. United States v. Morton Salt Co., 338 U.S. 632, 652, 70 S.Ct. 357, 359, 94 L.Ed. 401 (1960).


author: LEIGHTON, District Judge.

text:
    Dennis BROOKS, John Halpin, James Evans, John Laporte, Karl Starpins, Donald Olson, William Lutsch, Donald Shelter, Walter Jarczyk, John Janecek, Ronald Sbarbaro, Jerry Acciari, Donald Kufner, Richard Rice, Harry Smith, Raymond Williams, Robert Meiners, Mark Weidner, Peter George, and Mark Brines, Plaintiffs, v. VILLAGE OF LINCOLNWOOD, John C. Porcelli, Mayor, and Daniel Martin, Chief of Police, Defendants.
    No. 85 C 2568.
    United States District Court, N.D. Illinois, E.D.
    Aug. 22, 1985.

      Laura S. Addelson, Garson H. Wernick and David Kornfeld, Evanston, Ill., for plaintiffs.
    Ronald S. Cope, David L. Ader, Ancel, Glink, Diamond, Murphy & Cope, P.C., Chicago, Ill., for defendants.
   MEMORANDUM

LEIGHTON, District Judge.

This is defendants’ motion to dismiss the complaint with prejudice, under Rule 12(b). Plaintiffs are police officers employed by the Village of Lineolnwood Police Department; defendants are the Village of Lin-colnwood, its mayor and the village chief of police.

In Count I, plaintiffs allege violations of the overtime pay provisions of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 207(a). They contend that on January 1, 1980, the Village through its chief of police, promulgated an employment policy requiring all police officers to report for work thirty to forty-five minutes prior to the start of their shift. Plaintiffs further allege that they were required to be “on call” during meal periods and were required to attend firearms training once a month. They contend that defendants’ policy in regard to compensable time does not include these additional periods of work, in violation of § 207(a) of FLSA.

Count II alleges a pendent state law claim for breach of contract, stating that defendants had agreed to pay overtime rates for work performed in excess of forty hours per week. Plaintiffs allege that this agreement was reduced to writing on January 11, 1985 as Department General Order # 48 (Order # 48).

In Count III, plaintiffs seek a declaration that the previous overtime pay practices of the village, as evidenced by Order #48, violated 29 U.S.C. § 207(a)(1) of the FLSA, which applies to the Village of Lineolnwood Police Department.

In their motion to dismiss, defendants contend first that when the case was filed on March 25, 1985, there was no case or controversy presented because the Supreme Court had not yet denied the rehearing in Garcia v. San Antonio Metropolitan Transit Authority, — U.S. —, 105 S.Ct. 1005, 83 L.Ed.2d 1016 reh. denied, — U.S. —, 105 S.Ct. 2041, 85 L.Ed.2d 340 (1985), the case in which the Court overruled its 1976 decision, National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976). National League of Cities had held that the Commerce Clause did not empower Congress to enforce minimum wage and overtime provisions of FLSA against the states in areas of “traditional government functions”. Id. at 852, 96 S.Ct. at 2474. In overruling this decision, the Court in Garcia held that nothing in the overtime and minimum wage requirements of FLSA was destructive of state sovereignty or violated the Constitution. Id. at 1020. FLSA was thus made applicable to municipalities.

Defendants’ second contention is that FLSA was not applicable to municipalities during the period alleged in the complaint (prior to the Garcia decision), and that Garcia is prospective only. Alternatively, defendants argue that plaintiffs’ allegations are based on incorrect subdivisions of FLSA, and that it is subdivision 207(k) that applies to police and firefighters. Under this subdivision, defendants contend that plaintiffs are not entitled to overtime pay rates. Finally, defendants argue that plaintiffs’ final count for declaratory relief seeks an advisory opinion as to the future effects of a change in the law, and that the policy plaintiffs complain of is no longer in effect.

The threshold issue presented to this court is whether the Supreme Court’s ruling in Garcia removing the constitutional barriers to the application of the FLSA to municipalities should be applied retrospectively. First, however, the court must decide whether it has jurisdiction over this matter. The court finds that a case or controversy does exist between the parties at this point in time. Plaintiffs claim to have suffered an injury and this injury would be redressed by the relief requested. The requirement of ripeness is therefore satisfied. Stewart v. Hannon, 675 F.2d 846 (7th Cir.1982).

With regard to the retrospective application of Garcia, the court must look to three factors in determining whether non-retrospective application is proper. Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971); see also Northern Pipeline Const. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). First, the decision to be applied non-retrospectively must establish a new principle of law either by overruling clear past precedent on which the litigants may have relied, or deciding an issue of first impression. Second, the prior history of the rule in question must be examined to determine whether retrospective application will further or retard the operation of the rule. Third, the inequities of retrospective application must be balanced. Chevron, 404 U.S. at 106-07, 92 S.Ct. at 355.

In Garcia, the Supreme Court overruled the clear past precedent of National League of Cities which held that the tenth amendment limited Congress’ power to enforce FLSA against municipalities in areas of traditional government functions. Plaintiffs argue, however, that defendants cannot establish their prior reliance on National League of Cities because the overtime policy of the department had been in effect prior to 1976 when that case was decided. This does not establish that defendants did not rely on National League of Cities in believing that their overtime pay policies would not be subject to the requirements of FLSA. On January 3, 1980, when defendants’ policies were put into writing, National League of Cities represented the law governing this case. The court cannot assume that defendants could have foreseen that National League of Cities would be overturned. Thus, the first factor favoring non-retrospective application has been met.

As to the second factor, retrospective application of FLSA to municipalities would cause substantial problems that would retard the application of the Garcia ruling. As defendants point out, plaintiffs’ salaries are appropriated and expended by the village on an annual basis. Retrospective application of Garcia would wreak havoc on municipal budgeting and create unanticipated financial liability for already strapped municipalities. Such a result cannot be said to further the application of the Garcia ruling, which merely sought to remove an unworkable standard of municipal immunity from federal law.

Finally, the retrospective application of Garcia would create substantial inequities. Until the Garcia decision, National League of Cities constituted clear authority that FLSA could not be applied to municipalities in areas of traditional government functions. It would be unjust to hold defendants to a rule that did not exist at the time their policies were in effect. The court therefore holds that the Supreme Court’s decision in Garcia removing municipality tenth amendment immunity to FLSA should not be applied retrospectively. Plaintiffs’ claim in Count I based on the retrospective application of FLSA must therefore be dismissed.

Plaintiffs also seek a declaration that FLSA applies to the Village of Lincolnwood and that Order # 48 violates FLSA. It is clear from the Supreme Court’s decision in Garcia that municipalities are no longer immune from the application of FLSA. However, this court has held that Garcia is not to be given retrospective effect. The issue therefore is whether defendants’ policy in effect from the time the rehearing in Garcia was denied on April 15, 1985, until this policy was changed on April 29, 1985, is a proper subject for declaratory relief.

The court will enter a declaratory judgment only when such relief will serve a useful purpose. Cook County Legal Assistance Foundation v. Pauken, 573 F.Supp. 231 (N.D.Ill.1983). Because Order # 48 is no longer in effect and Order # 89 which is now in effect seeks to comply with the requirements of FLSA, a declaration by this court that Order # 48 violated FLSA would serve no useful purpose. Plaintiffs have not alleged that Department Order # 89 fails to comply with the FLSA. For these reasons, the court declines to enter a declaratory judgment; Count III is therefore dismissed. Since plaintiffs’ federal claims have been dismissed, the court declines to exercise jurisdiction over the pendent state law claim for breach of contract. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Accordingly, defendants’ motion is granted; this suit is dismissed in its entirety.

So ordered.

      . Order # 48 is no longer in effect. On April 29, 1985, Order # 48 was superseded by Department General Order # 89 (Order # 89) which seeks to comply with the requirements of FLSA.


author: ASPEN, District Judge:

text:
    DIAL-IN, INC., an Illinois Corporation, Plaintiff, v. The ARO CORPORATION, a Foreign Corporation, Defendant.
    No. 85 C 6484.
    United States District Court, N.D. Illinois, E.D.
    Sept. 18, 1985.

      Michael J. Gill and Susan E. Babb, Is-ham, Lincoln & Beale, Chicago, Ill., for plaintiff.
    Jon 0. Nelson and Anne M. Rosenblum, Allegretti, Newitt, Witcoff & McAndrews, Ltd., Chicago, Ill., for defendant.
   MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

On May 23, 1985, plaintiff Dial-In, Inc. (“Dial-In”) filed this breach of contract action against defendant The ARO Corporation (“ARO”) in the Circuit Court of Cook County, Illinois. ARO was also served with a summons and a copy of the complaint on that day. On July 19, 1985, ARO filed a petition for removal of the case to this Court. Claiming that the removal petition is untimely, Dial-In has moved to remand the action to state court. For the reasons set forth below, Dial-In’s motion to remand is granted.

Under 28 U.S.C. § 1446(b), a petition for removal must be filed within thirty days after the defendant, through service or otherwise, receives a copy of the initial pleading setting forth the plaintiffs claim for relief. Dial-In argues that ARO has failed to act within this time limit, waiting almost sixty days to file its removal petition.

ARO, on the other hand, contends that the May 23, 1985 service of Dial-In’s complaint was fatally defective in that it failed to include a full copy of the contract on which Dial-In’s suit is based, as required by Ill.Rev.Stat. eh. 110, 112-606. Indeed, although the copy of the complaint filed in state court included a full copy of the parties’ contract, the service copy was missing two pages (the second and the last) of the four-page document. ARO argues that the thirty-day period for removal did not begin to run until July 15, 1985, when ARO informed Dial-In of the missing pages and Dial-In supplied them to ARO, or at least until June 19, 1985, when ARO filed its general appearance in state court. ARO also points out that on June 19, 1985, the parties filed a stipulation giving ARO until July 19, 1985, to answer or otherwise plead to Dial-In’s complaint.

Dial-In responds initially by arguing that the failure to attach a complete copy of the parties’ contract to the service copy of the complaint was not a fatal defect — it did not in any way impair the jurisdiction of the state court over ARO’s person. Ill.Rev. Stat. ch. 110A, ¶ 104(d); Hubbartt v. Frank, 36 Ill.App.3d 529, 344 N.E.2d 496, 499 (5th Dist.1976).

More to the point is Dial-In’s assertion that ARO had been effectively notified of the nature of the suit and the contract in question on May 23, 1985. Service of process under state law does not control removal under 28 U.S.C. § 1446. Tyler v. Prudential Insurance Co. of America, 524 F.Supp. 1211, 1213 (W.D.Pa.1981); Perimeter Lighting, Inc. v. Karlton, 456 F.Supp. 355, 359 (N.D.Ga.1978). Rather, “[a]ll that is required is that the defendant receives, through service or otherwise, a copy of an ‘initial pleading’ from which the defendant can ascertain that the case is one which is or has become removable.” Tyler, 524 F.Supp. at 1213, citing Internaional Equity Corp. v. Pepper & Tanner, Inc., 323 F.Supp. 1107, 1109 (E.D.Pa.1971); see also Mielke v. Allstate Ins. Co., 472 F.Supp. 851, 853 (E.D.Mich.1979); Perimeter, 456 F.Supp. at 358. If ARO could have intelligently determined removability from the papers it received with the May 23 summons, then the thirty-day statutory period began to run on that date.

We agree with Dial-In that the papers served on ARO on May 23, even with two pages of the contract missing, did in fact reveal that the case might be removed to federal court. This Court could exercise subject matter jurisdiction in this case only by virtue of the parties’ diversity of citizenship, pursuant to 28 U.S.C. § 1332(a). The initial pleading which ARO received on May 23 quite clearly alleged that the parties are citizens of different states and that the amount in controversy exceeds $10,-000. Thus, ARO could have determined from the outset that this action was removable, and the thirty-day period established in § 1446(b) began to run on May 23. Consequently, ARO’s July 19 petition for removal is untimely.

The fact that ARO filed a general appearance on June 19 is irrelevant to the question of removability. If anything, ARO’s appearance constituted a waiver of any objections it may have had to the May 23 service of process. E.g., Gutow v. Cooper, 82 Ill.App.3d 534, 37 Ill.Dec. 850, 402 N.E.2d 852 (1st Dist.1980); Zvonarits v. Vollen, 64 Ill.App.3d 958, 21 IlLDec. 724, 382 N.E.2d 18 (1st Dist.1978). But as we have already noted, service of process under state law is distinct from, and does not govern, removal under § 1446.

Also irrelevant is the stipulation of the parties to allow ARO to answer or otherwise plead to Dial-In’s complaint until July 19. The thirty-day period set forth in § 1446(b) is mandatory and cannot be extended by consent of the parties or by court orders. E.g., Diaz v. Swiss Chalet, 525 F.Supp. 247, 250 (D.P.R.1981); Tyler, 524 F.Supp. at 1213; Crompton v. Park Ward Motors, Inc., 477 F.Supp. 699, 701 (E.D.Pa.1979); Perrin v. Walker, 385 F.Supp. 945, 948 (E.D.Ill.1974); Transport Indemnity Co. v. Financial Trust Co., 339 F.Supp. 405, 407 (C.D.Cal.1972). Therefore, the parties’ stipulation has no effect on the timeliness of ARO’s removal petition.

In sum, ARO’s petition for removal is untimely, as it was not filed within thirty days of the May 23, 1985 service of summons and complaint. Because the case was improperly removed from state court — though without any apparent bad faith — ARO must pay Dial-In the costs, but not the attorney’s fees, the latter incurred in opposing removal. 28 U.S.C. § 1446(d); Zoyoipoulos v. Palombo, 584 F.Supp. 867 (D.Colo.1984); Brown & Sharp Mfg. Co. v. All Individual Members of Lodges 1088 and 1142 of District No. 64 of the Int’l Ass’n of Machinists and Aerospace Workers, AFL-CIO, 535 F.Supp. 167, 172 (D.R.I. 1982). Accordingly, Dial-In’s motion to remand is granted. It is so ordered.

      . Moreover, nothing in the two missing contract pages sheds any further light on this issue.

      . This case is distinguishable from Potter v. McCauley, 186 F.Supp. 146 (D.Md.1960), where there was no personal service by legal process on defendant before she voluntarily entered a general appearance in state court.

      .The parties should be able to determine the amount of costs due Dial-In without the assistance of the Court and should then present an appropriate draft order to the Court. If this proves not to be the case, Dial-In should promptly file with the Court a statement itemizing its costs.


author: MORAN, District Judge.

text:
    Michael MARTENS, By and Through his father and next friend, Philip MARTENS, Plaintiff, v. DISTRICT NO. 220, BOARD OF EDUCATION, et al., Defendants.
    No. 82 C 3414.
    United States District Court, N.D. Illinois, E.D.
    Sept. 19, 1985.

      Martin J. Healey Jr., Chicago, Ill., for plaintiff.
    Robert A. Lewinthal, Fred Sudak & Associates, Chicago, Ill., for defendants.
   MEMORANDUM AND ORDER

MORAN, District Judge.

This case stems from the warrantless search of the student plaintiff on school property. It raises several interesting questions under the Fourth Amendment of the Constitution, which reads:

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

I.

At about 10:30 a.m. on April 29, 1982, Joan Baukus, dean of students at Reavis High School, received an anonymous phone call. The caller identified herself as living in the Sahs area of Stickney, Illinois. The caller said that she had discovered her daughter with marijuana cigarettes purchased from James Lafollette, a student at Reavis. The caller said Lafollette kept marijuana in a Marlboro box in his school locker, and that the box was in the locker that day. Baukus tried unsuccessfully to persuade the caller to reveal her name or leave a phone number. Baukus then had Lafollette open his locker. There, as promised, was a Marlboro box containing marijuana cigarettes.

At about 12:30 p.m. the same day, Bau-kus received another phone call from a woman Baukus believed to have been the earlier anonymous tipster, although she was not sure. This second caller identified herself as living in the Sahs area. She said she had discovered her daughter in possession of marijuana cigarettes. The caller indicated that her daughter had purchased the marijuana from James Lafollette and the plaintiff, Michael Martens. The caller said Martens kept drug paraphernalia in the lining of his coat and that he might have paraphernalia in his possession that day. Baukus was again unsuccessful in persuading the caller to reveal her name or phone number.

At about 1:15 p.m. Baukus brought Martens to her office and confronted him with the substance of the phone call. Martens denied he had a controlled substance in his possession and refused to consent to a search until his parents were contacted. Baukus was unable to reach either of Martens’ parents over the next 45 minutes.

At this point Officer Hentig, a Cook County Sheriffs deputy, came into Baukus’ office and spoke to Martin. Hentig was at the school on another matter. There is no indication that he supplied any evidence implicating Martens or directed school officials to detain Martens for questioning. He told Martens that based on his experience it would be better to cooperate with school officials. Hentig then asked Martens to empty his pockets and Martens complied. A pipe in Martens possession was later found to have contained marijuana residue.

Martens was suspended from school on May 10,1982, pending a hearing before the Board of Education on May 18, 1982. At that hearing Martens was represented by counsel, presented witnesses and cross examined adverse witnesses. The transcript of the hearing covers 23 single-spaced pages. At the conclusion of the hearing the Board decided to expel Martens for the remainder of the school year. This order was not entered on Martens’ permanent record and was not revealed to colleges or prospective employers. Martens faced no criminal charges as a result of the search. At the time of the expulsion Martens was at the end of his junior year. Martens claims, tardily, that the expulsion kept him from graduating a semester early, as he had planned.

Martens’ complaint for a temporary restraining order has long since become an action for damages. Martens claims, first, that the search violated his Fourth Amendment rights and, second, that the illegally seized evidence was improperly admitted at the expulsion hearing before the school board. This court delayed ruling on defendant’s motion for summary judgment until after the Supreme Court handed down its decision in New Jersey v. T.L.O., — U.S. —, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985).

II.

Young people are not stripped of their constitutional rights upon entering the schoolhouse. The Supreme Court has recognized that students are protected by the proscriptions of the First, Eighth and Fourteenth Amendments. See Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (First Amendment), Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977) (Eighth Amendment), Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975) (Fourteenth Amendment). In T.L.O. the Supreme Court rejected the argument that school administrators act in loco parentis and are not subject to the dictates of the Fourth Amendment. The Court held that the Fourth Amendment does apply to searches by school officials. 105 S.Ct. at 740-41.

While honoring the notion that students have Fourth Amendment rights, the T.L. O. Court limited those rights in order to accommodate the school’s need to preserve order and a proper educational environment. First, the Court held that school officials need not obtain a warrant before searching a student. 105 S.Ct. at 743. According to the Court, the warrant requirement is unsuited to the school environment because it “would unduly interfere with the maintenance of the swift and informal disciplinary procedures needed in the schools.” Id.

As a second concession to school officialdom, the T.L.O. Court rejected “probable cause” as the touchstone for determining the legality of school searches. It held that “the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search.” 105 S.Ct. at 743-44. In determining the reasonableness of a search, a court must consider, first, whether the search was justified at its inception and, second, whether the scope of the search was reasonably related to the circumstances that prompted the search. Id. at 744. The difference in the quantum of information required under the probable cause and reasonableness standards is quite unclear, although the Court seems to indicate that the courts should look to the reasonableness standards of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny for guidance.

This case differs from T.L.O. in one important respect. T.L.O. involved the search of a student on school grounds by a school official. In this case the disgorgement was in the presence of and at the urging of a police officer. Apparently happening into Baukus’ office, Officer Hentig told Martens that cooperation was indicated. At this point Martens broke a 45-minute stalemate and emptied his pockets. Yet, the record also indicates that Hentig had nothing to do with developing the facts that prompted Baukus to detain Martens in her 'office. Nor did Hentig direct school officials to detain and search Martens. In short, Hentig’s urging was the immediate cause of Marten’s emptying his pockets, but there is no indication that a criminal investigation was contemplated, that this was a cooperative effort with law enforcement, or that but for his intervention Martens would not have been searched eventually. See T.L.O., 105 S.Ct. at 744 n. 7. The interest that prompted the T.L.O. Court to waive the warrant requirement and to adopt a reasonableness standard— preserving swift and informal disciplinary procedures — would not be served by imposing warrant and probable cause requirements here in light of Hentig’s relatively limited role. There is, here, no basis for thinking that school official action was a subterfuge to avoid warrant and probable cause requirements.

The school officials certainly had reasonable suspicions and, indeed, probably probable cause to search Martens. Under the totality-of-circumstances test of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the anonymous tip was adequate to satisfy even the higher standard. First, the high school was facing a substantial drug problem that had resulted in the expulsion of many students before Martens. A tip that a Reavis student had drug paraphernalia was thus not inherently implausible. Second, coming from a member of the public rather than the typical police informer from the criminal milieu, the tip was presumptively somewhat more credible. Third, there was substantial evidence indicating the tip was accurate. Baukus believed that the Martens tip came from the same caller who had accurately indicated that another student possessed marijuana. There is some other evidence suggesting that the tipster was indeed the same person. Both were female, lived in the same area, had discovered their daughter in possession of marijuana, and refused to disclose their identity or phone number. Finally, the Martens tip was not a blanket allegation but rather outlined Martens’ role as a drug distributor, described where he kept his drug paraphernalia and indicated that Martens had the paraphernalia in his possession that day. The detailed nature of the tip weighs in favor of its accuracy. Finally, even if there were not probable cause, the reasonable suspicion led to measures reasonably related to the objectives of the search and not excessively intrusive. A high school junior was asked, in a school office during school hours and in light of specific information relating to marijuana, to empty his pockets, and he reluctantly complied.

Conclusion

Defendant’s motion for summary judgment is granted.


author: ALAIMO, Chief Judge.

text:
    Francis D. O’NEIL, Jr., and Robert A. Kimmons, on behalf of themselves and all others similarly situated, Plaintiffs, v. EPIC POWER SERVICES, INC., and A, B, C, D, E, F, G, H, I, J, K, L and M, Defendants.
    Civ. A. No. 285-052.
    United States District Court, S.D. Georgia, Brunswick Division.
    Sept. 23, 1985.

      John H. Calhoun, Vidalia, Ga., for plaintiffs.
    Charles M. Kidd, David N. Schaeffer, Atlanta, Ga., R. Peter Catlin, III, Brunswick, Ga., for defendants.
   ORDER

ALAIMO, Chief Judge.

Francis D. O’Neil, Jr., and Robert A. Kimmons filed this action against their former employer, Epic Power Services (“Epic”), seeking damages for breach of contract, restraint of trade and fraud. Defendant has moved for summary judgment on the grounds that plaintiffs failed to exhaust the contractual grievance procedures mandated under the collective-bargaining agreement to which they were bound. Having read and considered defendant’s brief in support of its position, the Court is of the opinion that the motion should be granted.

FACTUAL BACKGROUND

In October 1984, Georgia Power Company contracted with Epic to perform electrical work at the Edwin I. Hatch Nuclear Plant in Baxley, Georgia. Affidavit of Ronald T. Criddle, at 2 (May 9,1985). Epic, in turn, hired a number of electricians, including plaintiffs O’Neil and Kimmons, to work on the job. Id. Local No. 508 of the International Brotherhood of Electrical Workers (“IBEW”) had jurisdiction over portions of the Hatch Plant and, as a result, Epic employees were required either to be IBEW members or to obtain temporary work permits from Local No. 508. Criddle Affidavit, at 3. In addition, Epic gave as many as 16 electricians individual letters of employment, promising them wages of $17.50 per hour plus certain per diem payments and guaranteeing them a minimum of eight to ten full weeks of work. Plaintiffs' Complaint, Exhibit A.

When Epic employees signed union authorization cards or obtained work permits on October 15-16, 1984, union officials informed them that they would be working under a collective-bargaining agreement between Local No. 508 and the Georgia chapter of the National Electrical Contractors Association (“NECA”). Criddle Affidavit, at 3-4. This agreement recognized Local No. 508 as the exclusive bargaining representative for wages, hours, and terms and conditions of employment. Inside Working Agreement Between IBEW Local No. 508 & NECA (Georgia Chapter), § 2.05 (1983). It also provided a three-step grievance procedure for resolving disputes arising under the contract. Inside Working Agreement, §§ 1.04-1.08.

Disputes did arise almost immediately. Pursuant to the wage scale set out in the collective-bargaining agreement, on November 2, 1984, Epic reduced its employees’ wages from $17.50 per hour to $15.25 per hour and eliminated certain per diem payments. Criddle Affidavit, at 5. A total of 34 workers opposed this action and, by memorandum dated November 5, 1984, Epic acknowledged that those individuals were working under protest. Plaintiffs’ Complaint, Exhibit B. Their protest remained one in name only, however, for on the same day Georgia Power canceled its contract with Epic. Epic immediately laid off its entire force of electricians at the Hatch Plant, including plaintiffs. Criddle Affidavit, at 5.

None of the employees whose pay was cut and who were subsequently laid off attempted to initiate grievance proceedings under the collective-bargaining agreement. Criddle Affidavit, at 6-7. On January 7, 1985, plaintiffs O’Neil and Kimmons filed their complaint with the Appling County Superior Court, seeking damages on behalf of themselves and others similarly situated for breach of contract, restraint of trade and fraud. Predicating jurisdiction on diversity of citizenship and § 301 of the Labor Management Relations Act, 29 U.S.C. § 185(a) (1982), Epic timely filed a removal petition with this Court and now seeks to have the complaint dismissed on a motion for summary judgment.

The sole issue for resolution is whether plaintiffs have failed to exhaust their contractual grievance procedures mandated under the collective-bargaining agreement to which they were bound.

DISCUSSION

As a general rule, employees claiming breach of a collective-bargaining agreement are bound by the terms of that agreement and must attempt to use the grievance procedures set out therein as their first mode of redress. Hines v. Anchor Motor Freight, 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976); Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). When employees asserting an arbi-trable grievance have failed to use the dispute resolution machinery available to them under the agreement, their independent suit against the employer must be dismissed. Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965).

Like most rules of law, these principles are easier to announce than they are to apply. In this case, for example, the chief difficulty lies in the fact that plaintiffs have not claimed breach of a collective-bargaining agreement. Instead they rely on individual written employment contracts, which specify wages and duration of the job but make no mention of a union contract. The restraint of trade charge likewise depends on Epic’s unilateral alteration of terms contained in the letters of employment. Only in the fraud charge do the plaintiffs mention the role of IBEW in this sad saga. That charge alleges Epic falsely represented that the IBEW Local No. 508 had approved plaintiffs’ employment at the Hatch Plant when in fact it had not. As a result of accepting jobs with Epic, plaintiffs claim they were charged with violations of their union constitution, were tried before a union tribunal and were fined.

When a worker arguably bound by a collective-bargaining agreement asserts an individual employment contract as the basis for a lawsuit, issues going to the heart of national labor policy arise, for the strength of our labor policy lies in its emphasis on collective efforts rather than individual action. The United States Supreme Court recognized this fundamental conflict in J.I. Case Co. v. NLRB, 321 U.S. 332, 64 S.Ct. 576, 88 L.Ed. 762 (1944), when it held that to the extent that an individual contract and a collective agreement are inconsistent, the latter must prevail. Id. at 337-39, 64 S.Ct. at 580-81, 88 L.Ed. 767-68. Any individual contract by which an employer would “incidentally exact or obtain any diminution of his own obligation or any increase of those of employees in matters covered by the collective agreement” is inconsistent with the latter agreement. Id. at 339, 64 S.Ct. at 581, 88 L.Ed. at 768.

The Court expressly declined to hold that an individual contract more advantageous than the collective agreement was unenforceable per se, but Justice Jackson voiced disapproval of such contracts:

The practice and philosophy of collective bargaining looks with suspicion on such individual advantages.... [Advantages to individuals may prove as disruptive of industrial peace as disadvantages. They are a fruitful way of interfering with organization and choice of representatives; increased compensation, if individually deserved, is often earned at the cost of breaking down some other standard though to be for the welfare of the group, and always creates the suspicion of being paid at the long-range expense of the group as a whole.

Id. at 338-39, 64 S.Ct. at 580-81, 88 L.Ed. at 768 (emphasis added). Justice Jackson further stressed: “Individual contracts ... may not be availed of to defeat or delay the procedures prescribed by the National Labor Relations Act ... or to limit or condition the terms of the collective agreement.” Id. at 337, 64 S.Ct. at 580, 88 L.Ed. at 767.

The rationale underlying J.I. Case remains as valid today as it was 40 years ago. In fact, both the Fifth and Eleventh Circuit Courts of Appeal have followed similar lines of reasoning in rejecting employee claims based on individual contracts when it was apparent that the claims derived from rights under a collective-bargaining agreement. See, e.g., Redmond v. Dresser Industries, Inc., 734 F.2d 633 (11th Cir.1984); Eitmann v. New Orleans Public Service, Inc., 730 F.2d 359 (5th Cir.1984): In Redmond, plaintiff tried to claim both an individual employment contract based on oral representations made by his superiors and an employment contract under the collective agreement. In Eitmann, plaintiff claimed that he, unlike other employees covered by the collective agreement, could not be discharged for inability to perform his duties if he was injured on the job. Plaintiff based his claim of “lifetime” employment on oral representations made by a manager. In both cases, the courts granted summary judgment for the defendant employers because the plaintiffs had failed to exhaust contractual grievance procedures mandated by an existing collective-bargaining agreement. Redmond v. Dresser Industries, Inc., supra, at 635; Eitmann v. New Orleans Public Service, Inc., supra, at 363.

To the extent plaintiffs here raise claims cognizable under the collective agreement between Epic and Local No. 508, this Court must likewise follow the lead of Redmond and Eitmann in granting Epic summary judgment, for it is undisputed that plaintiffs never availed themselves of the contractual grievance procedures. Plaintiffs’ breach of contract and restraint of trade claims derive from Epic’s unilateral decision to cut the pay and, subsequently, to terminate the employment of its electricians at the Hatch Plant. IBEW Local No. 508 was the exclusive representative of all employees in the Hatch Plant bargaining unit with respect to “rates of pay, wages, hours of employment and other conditions of employment.” See Inside Working Agreement, § 2.05.

Wage reductions and layoff decisions clearly fall within the ambit of the collective agreement and indeed are standard grist for the arbitral mill. Thus, before filing suit against their former employer, plaintiffs are obligated initially to pursue their claims through the contractual grievance machinery. Hines v. Anchor Motor Freight, Inc., supra, 424 U.S. at 563, 96 S.Ct. at 1055, 47 L.Ed.2d at 241; Vaca v. Sipes, supra, 386 U.S. at 184-85, 87 S.Ct. at 913-14; 17 L.Ed.2d at 854. Dismissal of the separate suit against the employer is the price of failing to grieve an arbitrable dispute. Republic Steel Corp. v. Maddox, supra, 379 U.S. at 652, 85 S.Ct. at 616, 13 L.Ed.2d at 583.

The Fifth and Eleventh Circuits have also held that such arguably extrinsic claims as fraud and misrepresentation can be subject to a contractual duty to grieve where the arbitration clause is broad and the claims relate generally to the employment relationship. See, e.g., Mason v. Continental Group, Inc., 763 F.2d 1219 (11th Cir.1985) (misrepresentations about a plant closing); Reese v. Mead Corp., 79 Lab.Cas. (CCH) ¶ 11,732 (N.D.Ala.1975), aff'd mem., 529 F.2d 1350 (5th Cir.1976) (misrepresentations about availability of continued layoff rather than termination with severance pay).

The sweeping arbitration provisions of the instant collective-bargaining agreement purport to cover “[a]ll grievances or questions in dispute” without exception. See Inside Working Agreement, § 1.06. Plaintiffs’ fraud claims address whether Local No. 508 had approved their employment at the Hatch Plant, as Epic represented, and thus relate to “other conditions of employment” for which Local No. 508 was the exclusive representative. Id. at § 2.05. Since union approval of plaintiffs’ assignment to the Hatch Plant bargaining unit was a “condition of employment” within the scope of the collective agreement, Epic’s alleged misrepresentations and the effect thereof were argubly arbitrable as “questions in dispute.”

Unless one can say with positive assurance that the arbitration clause is not susceptible of an interpretation encompassing a particular dispute, doubts should be resolved in favor of coverage. United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960). The Court finds no difficulty in concluding that the fraud claims here are arbitrable, given that they implicate the union’s right to be the exclusive representative for electricians working at the Hatch Plant. One cannot gainsay the union’s interest in exerting some control, albeit limited, over the composition of the bargaining unit. Moreover, “it would seem entirely inappropriate to conclude that employees could cast aside the contract grievance procedure by merely alleging that statements made by the employer amounted to fraud.” Reese v. Mead Corp., 79 Lab.Cas. (CCH) ¶ 11,732, at 22,-005. Under the rubric of Mason and Reese, therefore, plaintiffs were bound to submit their arguably extrinsic fraud claims to the grievance process.

CONCLUSION

Because plaintiffs have stated claims cognizable under the collective-bargaining agreement between Epic and IBEW Local No. 508, yet failed first to exhaust the contractual grievance procedures mandated by the agreement, defendant’s motion for summary judgment is hereby GRANTED. The Clerk is directed to enter an appropriate judgment.

In light of the foregoing ruling, defendant’s motion to deny class certification is DISMISSED AS MOOT.


author: PLATT, District Judge.

text:
    ANDREA THEATRES, INC. and E.B. Cinema Corp., Plaintiffs, v. THEATRE CONFECTIONS, INC., Defendant.
    No. 84 CV 4833.
    United States District Court, E.D. New York.
    Sept. 23, 1985.
    Rosenberg & Tubs, New York City by Jeffrey L. Rosenberg, Allan E. Mayefsky, for plaintiffs.
    Nixon, Hargrave, Devans & Doyle, New York City by Frank H. Penski, Mary Louise Barhite, for defendant.
   MEMORANDUM AND ORDER

PLATT, District Judge.

Defendant’s present motion to dismiss plaintiff’s complaint calls upon us once again to determine the delicate question of whether we should interfere, however slightly, in a lawsuit first commenced by the defendant against the plaintiffs for breach of contract in the Monroe County Supreme Court wherein the plaintiffs here (defendants there) interposed as counterclaims and defenses the identical claims which they assert here. Since any action taken by us on this motion might carry with it the implication that the learned Supreme Court Justice to whom the State Court proceeding has been assigned is not as qualified to decide whether the identical counterclaims and defenses should stand or be dismissed, comity dictates that no such action should be taken by us absent an express request therefor from another such Judge in a prior action to whom any such questions may also be submitted.

Procedurally, this case is now before the Court on defendant Theatre Confections, Inc.’s (hereinafter TCI) motion to dismiss the complaint of plaintiffs Andrea The-atres, Inc. and E.B. Cinema Corp. (hereinafter collectively referred to as ATI) pursuant to Rule 12(b)(6), F.R.Civ.P., or, alternatively, to dismiss or stay this action pending the resolution of an ongoing State action involving precisely the same parties. For the reasons stated below, the Court grants defendant’s motion to stay this action.

Defendant TCI is a New York corporation with its principal offices in Rochester. Plaintiffs’ Complaint, ¶ 6 (hereinafter PI. Complt.). TCI’s primary businesses involve (1) the provision of “concession packages” which include products to be sold and equipment for the operation of sales in space it leases from entities such as movie theaters, and (2) loans for purposes such as construction to the owners of entities from which it leases space to operate its concession stands. Id. at ¶¶ 7, 10. TCI’s business ventures are conducted primarily in the northeast and north central United States. Id.

Plaintiffs are both New York corporations, owned by the same principals, with their principal place of business in Merrick, New York. PI. Complt. MI 4, 5, 21. Each plaintiff is the lessee and operator of a movie theater complex in the greater New York City area; Andrea Theatres leases and operates one in Staten Island, New York; E.B. Cinema, one in Nanuet, New York. Id. The principals of plaintiffs also lease and operate several other movie theaters in the same geographic area. Id. at ¶ 21.

In February of 1979, plaintiff E.B. Cinema obtained its present ten-year lease in Nanuet for the purpose of constructing a “five-plex” movie theater by the Christmas season of 1979. PI. Complt. If 14. At the time, plaintiffs estimated the construction would cost approximately $500,000 to $600,000, and they “were unable to obtain all the financing necessary for the planned construction ... from outside banks.” Id. at ¶ 15.

In September of 1979, TCI agreed to loan $300,000 to plaintiffs for the construction. Pl.Complt. ¶ 19. On September 26, 1979, ATI’s principals and TCI signed both a loan agreement for $300,000 and a concession lease agreement covering three other movie theaters in addition to the two plaintiff theaters, also operated by ATI’s principals.

In return for the loan, TCI required various forms of security and collateral; the concession lease agreement being one form. PI. Complt. If 23. For example, the Concession Lease was to run until September of 1987, but could be automatically extended by TCI “until all monies owed” by ATI’s principals to TCI “if any, have been repaid in full.” Defendant’s Affidavit in Support of its Motion, Exhibit B, Concession Lease Agreement Mí 1, 14 (hereinafter Concession Agreement). Moreover, for an initial period, the Concession Agreement was to be used as a vehicle for paying the loan itself; that is, until a certain fraction of the loan was paid a portion of the proceeds that would otherwise have been paid to ATI’s principals as rent for the leased space were to be treated as loan payments. Defendant’s Affidavit in Support of its Motion, Exhibit A, Loan Agreement, ¶ 2(b) (hereinafter Loan Agreement).

Ultimately, only $250,000 of the $300,000 that TCI had initially made available under the loan was actually used. PI. Complt. 1157. However, the Loan Agreement also acknowledged debts owing to TCI under previous loans made by TCI to plaintiffs’ principals and theaters operated by them, among them being plaintiff Andrea The-atres, in 1975 and 1976 which had been guaranteed by inter alia a concession lease agreement. Loan Agreement, 1f 8. The aggregate amount owed on these previous loans was acknowledged by plaintiffs’ principals to be $148,835.54 as of September 20, 1979.

ATI’s principals agreed that this aggregate amount “shall be added to the outstanding balance hereunder” (i.e., the 1979 loan) and would be repaid together with interest in the manner set forth under paragraph 2 of the 1979 Loan Agreement “as if said account stated \i.e., the aggregate amount outstanding from the old loans] had been an additional loan borrowed as of the date hereof.” Loan Agreement, 118. By this Court’s estimation, then, the total value of the 1979 loan came to nearly $400,000 exclusive of interest.

Under the Concession Lease Agreement, ATI’s principals agreed to buy concession products exclusively from TCI for five theaters, two of which are the plaintiffs herein, and TCI was given the exclusive right to sell its products from the space it leased. Concession Lease, till 2, 4. In exchange for the lease, TCI was to pay approximately 50% of the proceeds from its sales to plaintiffs’ principals as a rental fee. Id. at ¶ 3. Plaintiffs’ principals were to use its own theater staff at the concession but TCI reserved the right to staff the concession with its own employees under certain circumstances. Id. at 1114. During the time that plaintiffs’ principals used their own staff, they were to give TCI a weekly accounting for all monies received from the sales of the concessions and make deposits of these monies as well as give TCI a monthly inventory. Id. at ¶ 8.

The Concession Lease Agreement also incorporated a previous concession lease agreement entered into on November 18, 1975 between TCI and other theaters operated by plaintiffs’ principals, among them Andrea Theatres, and modified that previous agreement where it was inconsistent with the present 1979 agreement. Concession Agreement, 1121.

In the Spring of 1984, plaintiffs allege that they had paid TCI approximately $450,000 and informed TCI that they considered the 1979 loan paid. PI. Complt. ¶ 60. Plaintiffs further allege that TCI agreed with them but refused to consider the loan repaid unless plaintiffs agreed to extend the Concession Lease Agreement. Id. at 11 61.

According to TCI, ATI breached both its Loan and Concession Agreements in the Spring of 1984. As a result of this, in June of 1984, TCI sought a preliminary injunction against plaintiffs in New York State Supreme Court, Monroe County, due to plaintiffs’ breach of these two agreements. This action is entitled Theatre Confections, Inc. v. Andrea Theatres, Inc. and E.B. Cinema Corp., Index No. 4905/84.

ATI initially filed a general denial dated July 30,1984, and later amended its answer to assert counterclaims and affirmative defenses for the breaches claiming that TCI had violated New York’s criminal and civil usury laws and was improperly withholding guarantees and security instruments given to TCI as collateral for the loans.

In December of 1984, plaintiffs filed the present action against TCI alleging as direct causes of action the previously noted defenses asserted in the State proceeding as well as assertions that TCI had violated federal antitrust law. In January of 1985, plaintiffs were permitted to file a second amended answer in the State proceeding adding as counterclaims and defenses the identical antitrust claims asserted in their federal complaint.

Plaintiffs claim that TCI has violated the Sherman Act, §§ 1 and 2, the Clayton Act, § 3, and New York State’s antitrust statute through (1) its “resale price maintenance” of the prices at which it sold the concessions’ products to the theater patrons, (2) its arrangement to be the exclusive operator of the concession stands in plaintiffs’ theaters during the term of the loan, and (3) its “tying” the loan of money to plaintiffs to the condition that plaintiffs agree to the Concession Lease Agreement.

TCI in its State Court action has already moved for partial summary judgment asserting that plaintiffs’ antitrust defenses may not under New York law be used to delay the outcome of the State based contract action. Plaintiffs’ Affidavit in Opposition to Defendant’s Motion, Exhibit B, TCI’s Memorandum of Law in Support of its State Court Motion for Partial Summary Judgment, at 7-11. TCI further argues in its State Court motion that it is entitled not only to partial summary judgment on its claim, but severance of that claim so that it can seek to enter and enforce judgment on it. Id. at 12-14.

In TCI’s State Court motion for partial summary judgment, ATI cross-moved to stay the State Court proceeding pending the outcome of ATI’s claims in federal court.

On June 7, 1985, at the time defendant’s present motion was called by this Court for oral argument, plaintiffs did not appear. Because plaintiffs were not there, the Court did not permit the defendant to argue. Instead, the Court stated for the record that having reviewed the briefs, it was inclined to stay the present case pending the outcome of the State action and instructed the defendant to submit an order to that effect.

Subsequently, plaintiffs arrived after the motion had been called and explained that they were late due to construction repairs on the Courthouse’s facade which had caused the Courthouse entrance to be moved to the Internal Revenue Service building that is connected to the Courthouse and to the fact that they were then misinformed as to which elevator banks to use to get to the Courtroom. When plaintiffs arrived, they demanded the right to be heard and later repeated this demand by letter to the Court.

As the Court had permitted no oral argument and there is no right to oral argument in civil motions, the Court did not reschedule the motion.

Upon further consideration, the Court still believes it should abstain in the present action pending the outcome of the separate State action. Although the federal court does have exclusive jurisdiction over private federal antitrust actions, State Courts have the power to decide whether antitrust violations exist when asserted as defenses to actions in breach of contract. 1A J. Moore, W. Taggart, A. Vestal & J. Wicker, Moore’s Federal Practice, ¶ 0.208b (2d ed. 1985).

As may be apparent from the somewhat lengthy discussion of the facts, it seems to the Court at this juncture that the facts of this case and the parallel State action involve predominantly breaches of contract and accounting for loan payments between parties who have been dealing with each other since 1975 under similar loan-concession lease arrangements. Whether the allegations of antitrust violations were added as an afterthought to TCI’s filing a State action or possibly because ATI’s principals obtained more enlightened legal counsel, the Court cannot venture to say, but at first blush, the antitrust allegations do not seem to be wholly meritorious.

However, because the bulk of the dispute between the parties relates to questions of State law and because it is possible for the State Court to determine whether an antitrust violation exists, this Court holds that it is in the interests of judicial restraint and comity to stay the present action. In the event that the State Court finds an antitrust violation, plaintiffs may always return here. Therefore, the Court also hereby dismisses this action without prejudice to plaintiffs’ underlying claims and right to move to reinstate this action subsequent to the resolution of the State Court proceeding if circumstances should then warrant it.

SO ORDERED.

      . According to paragraph 8(a) of the Loan Agreement, an unpaid balance of $106,605.48 was owed by TCI as of September 20, 1979 under a Revolving Credit Agreement dated June 4, 1975, between Henry Goldman (one of plaintiffs’ principals), Theatre Service and TCI, the payment of which had been guaranteed by Mi-Ann theatre Corp. (a theater owned by plaintiffs’ principals) and Andrea theatres (one of the plaintiffs herein) pursuant to a concession lease agreement dated November 18, 1979 between these two theaters and TCI.
      According to paragraph 8(b), Andrea Theatres and Mi-Ann Theatre also entered into a Revolving Credit Agreement with TCI dated November 18, 1975, under which they owed TCI as of September 20, 1979, the sum of $17,971.41.
      Finally, according to paragraph 8(c), Andrea Theatres and Mi-Ann Theatre together with some of the principals owed TCI as of September 20, 1979, a past-due balance of $24,259.65 pursuant to a promissory note in the face amount of $17,000 dated February 6, 1976.

      . More specifically, TCI, in its Memorandum of Law in support of its partial summary judgment motion in State Court, avers that ATI admitted to owing TCI at least $87,494.79 in the Spring of 1984.
      To alleviate any possible confusion which might arise from this recitation of the parties’ conflicting allegations, the Court notes that its decision to abstain in this matter was made only after a thorough review of the papers and pleadings prepared by both sides in both the federal and State Court actions. The Court, therefore, summarizes above, without casting any judgments as to the merits of the opposing claims, some of the issues that lie at the heart of the State contract dispute and which must be resolved before this Court could take up the matter again.


author: STECKLER, District Judge.

text:
    James GEARY, Plaintiff, v. JEFFBOAT, INC., Defendant/Cross-Plaintiff, v. DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Cross-Defendant.
    No. NA 84-218-C.
    United States District Court, S.D. Indiana, New Albany Division.
    Sept. 26, 1985.
    Alton D. Priddy, Hardy, Logan & Hastings, New Albany, Ind., for plaintiff.
    Robert A. Donald, III, Lynch, Sherman & Cox Louisville, Ky., for Jeffboat.

      Francis S. Lilly, Sol. of Labor, Donald S. Shire, Associate Sol., Joseph M. Walsh, Counsel for Claims, Joshua T. Gillelan, II, Atty., U.S. Dept, of Labor, Washington, D.C., John Daniel Tinder, U.S. Atty., Carolyn N. Small, Asst. U.S. Atty., Indianapolis, Ind., for cross-defendant.
   STECKLER, District Judge.

This matter is before the Court to enforce a supplementary order made by a Deputy Commissioner of the Department of Labor. The Deputy Commissioner declared Jeffboat, Incorporated in default of its obligation to pay a compensation award to plaintiff. Also the Commissioner ordered Jeffboat to pay an additional amount of twenty (20) percent of the original award as a default penalty pursuant to § 914(f).

Cross-defendant, Director, Office of Workers’ Compensation Programs, moves the Court for summary judgment. The Director seeks both dismissal of Jeffboat’s cross-claim for declaratory relief and judgment in favor of plaintiff. In response, Jeffboat argues that the supplementary order is void and unenforceable for two reasons. First, Jeffboat argues that the Commissioner lacked authority to make the supplementary order. Second, Jeffboat contends it was denied a formal hearing on the supplementary order in violation of due process. The Court disagrees.

Under Section 918(a) the Deputy Commissioner is authorized to make a supplementary order “where the employer’s liability already has been determined under a compensation order and the employer is in default of its payment under that order.” Providence Washington Ins. v. Director, O.W.C.P., 765 F.2d 1381, 1384 (9th Cir. 1985). The Commissioner has a duty to investigate claimant’s application, provide ten (10) days’ notice to interested parties, and provide a hearing to establish a factual basis for granting or denying claimant’s request. Specifically, the Commissioner must determine whether payment under a compensation order is due, whether the employer has defaulted in payment and then must calculate the amount in default and assess a penalty, if applicable. Title 33 U.S.C. § 918(a); Providence, supra, at 1385. The typical § 918 default award is a matter of computation and rarely raises substantive issues of fact or law. Id. at 1386; Bray v. Director, O.W.C.P., 664 F.2d 1045 (5th Cir.1981). Consequently, unless there is a genuine dispute of fact or law regarding the supplementary order, an informal conference is appropriate and a formal hearing is not required. Lauzon v. Strachan Shipping Co., 602 F.Supp. 661 (S.D.Texas, 1985); 20 C.F.R. § 702.301. This procedure is wholly consistent with the purpose of § 918(a) which is “to provide a quick and inexpensive mechanism for the prompt enforcement of unpaid compensation awards.” Tidelands Marine Service v. Patterson, 719 F.2d 126 (5th Cir.1983).

Further, failure to grant a formal hearing does not deny due process. The default award is calculated on the basis of an appealable compensation order. This underlying compensation order determines the substantive rights of the parties by a formal hearing before an administrative law judge. The compensation order is then appealable on the merits to the Benefits Review Board and ultimately the Court of Appeals. For the aforementioned reasons the Court concludes that the Director is entitled to summary judgment on Jeff-boat’s cross-claim for declaratory relief.

The Director secondly moves the Court to enter judgment on plaintiff’s complaint for enforcement of the Deputy Commissioner’s supplementary order. Having reviewed the entire file and being duly advised in the premises, the Court hereby finds that the supplementary order is in accordance with the law and that entry of judgment is appropriate. Title 33 U.S.C. § 918(a).

Following a formal hearing an Administrative Law Judge made a compensation award to James Geary. That compensation order was filed in the Deputy Commissioner’s office on January 30, 1984. Jeffboat timely appealed the compensation order to the Benefits Review Board but did not acquire a stay of payments pursuant to 33 U.S.C. § 921(b)(3). Therefore, the compensation payments became due ten (10) days after the compensation award Was filed on January 30, 1984. On March 15, 1984, Geary notified the Deputy Commissioner that he had not received any payments under the compensation order. Geary timely applied for a supplementary order within one year after Jeffboat’s default. The Deputy Commissioner investigated Geary’s application, gave notice of the claim to parties on April 19, 1984, and held an informal conference on May 13, 1984. At the informal conference Jeffboat did not deny that a compensation order awarded payments to Geary and that Jeffboat had failed to make said payments to Geary under the award. On July 26, 1984, the Deputy Commissioner issued a supplementary order declaring Jeffboat in' default of the payments and assessing a 20% penalty. The total amount in default was $13,462.90. The supplementary order was filed in the Deputy Commissioner’s office on July 26, 1984. On August 23, 1984, Geary filed a complaint and certified copy of the supplementary order with the Clerk of the appropriate District Court.

IT IS THEREFORE ORDERED, ADJUDGED, and DECREED that the Director’s motion for summary judgment on Jeffboat’s cross-claim for declaratory relief is GRANTED and judgment is entered on the supplementary order in the amount of Thirteen Thousand Four Hundred Sixty-two Dollars and Ninety Cents ($13,462.90), plus interest.

Plaintiff’s counsel is entitled to reasonable attorney fees pursuant to 33 U.S.C. § 928 and shall make application therefor, consistent with 20 C.F.R. § 702.132(a), within 15 days from the date of this order.


author: MILTON POLLACK, Senior District Judge:

text:
    Jerry WORD, Petitioner, v. UNITED STATES of America, Respondent.
    No. 85 Civ. 6246 (MP).
    United States District Court, S.D. New York.
    Oct. 3, 1985.

      Jerry Word, pro se.
    Rudolph W. Giuliani, U.S. Atty., S.D.N.Y. by Franklin H. Stone, Asst. U.S. Atty., New York City, for U.S.
   MILTON POLLACK, Senior District Judge:

DECISION

Jerry Word, pro se, moves this Court, under Federal Rule of Civil Procedure 60(b), to reconsider its previous decision denying Word’s motion to vacate and set aside his sentences under 28 U.S.C. § 2255 (1982). For the reasons stated in this Court’s prior opinion, as amplified below, Word’s motion for reconsideration is denied.

The facts underlying this motion are set forth in greater detail in this Court’s prior opinion, dated August 27,1985, 616 F.Supp. 695, and familiarity with them is assumed. The relevant facts will be summarized only briefly below.

On December 1, 1982, a jury found Word guilty of both one count of conspiracy to possess heroin with intent to distribute and one count of attempted possession of one kilogram of heroin with intent to distribute, both prohibited by 21 U.S.C. § 846 (1982). This Court sentenced Word to concurrent fifteen-year prison terms on each count, a $50,000 fine on each count, and ten years of special parole on the attempt count. The Second Circuit affirmed the conviction. United States v. Word, 742 F.2d 1444 (2d Cir.1983).

The grand jury indictment upon which the conviction was based was a superseding indictment, filed November 4, 1982. It was identical to the initial indictment, filed September 16, 1982, regarding the attempted possession charge. Regarding the conspiracy charge, however, the superseding indictment expanded the scope of the conspiracy by specifying ten rather than seven overt acts and by enlarging the time frame from slightly more than one month to slightly more than one year and four months. Trial on the superseding indictment began on November 29, 1982. Based on Word’s September 8, 1982 affidavit professing financial inability to retain counsel, counsel was promptly appointed to represent Word throughout these proceedings.

On August 27, 1985, this Court denied Word’s most recent pro se § 2255 motion. This Court first rejected Word’s claim that its refusal to allow a three week continuance on the eve of trial so that Word could change counsel violated his Sixth Amendment right to effective assistance of counsel, on the grounds that the claim had been raised and rejected by the Second Circuit on direct appeal.

Next, this Court rejected, on several independent grounds, Word’s claim that commencing the trial within thirty days of the superseding indictment violated the Speedy Trial Act, ’ particularly 18 U.S.C. § 3161(c)(2) (1982). First, this Court held that Word waived his claim by not raising it at trial, especially since Word argued at trial that the Government took too long in bringing him to trial, allegedly in violation of 18 U.S.C. § 3161(c)(1) (1982). Even if not waived, this Court held, second, that the thirty day limit in § 3161(c)(2) is not inflexible. The twenty-five days Word’s counsel had to prepare, between the time of the superseding indictment and trial, was sufficient given that the superseding indictment realleged the same conspiracy, albeit with an expanded time frame and three additional overt acts, and given that Word’s capable and experienced defense lawyer never requested additional time to research or prepare. Even if this conspiracy count is defective, however, this Court held, third, that the attempted possession count, realleged in the superseding indictment in its entirety without any additions, still stands. Thus, even if the sentence for conspiracy would have to be vacated, the conviction, the concurrent fifteen-year prison sentence, and the ten years of special parole on the attempt count would still remain.

Finally, this Court rejected Word’s claim that the superseding indictment is defective since not considered by the full grand jury. Although recognizing a substantial question concerning Word’s waiver of this claim by not raising it at trial or on direct appeal, this Court held that Word’s claim was insufficient to raise a genuine factual issue because of his failure to present any facts supporting his claim, let alone a sworn affidavit of anyone, including himself, purporting to have knowledge of those proceedings. In addition, the Assistant United States Attorney submitted a sworn affidavit stating that the grand jury’s foreman and secretary signed an entry in the grand jury records, attesting that twenty-two grand jurors voted a true bill on the superseding indictment on November 4, 1982. •

This motion for reconsideration was received by the Pro Se Clerk’s Office in the Southern District of New York on September 13, 1985. Word’s affidavit in support of his motion was subscribed and sworn before the notary on September 6, 1985. The judgment being challenged was entered on August 27, 1985.

DISCUSSION

A motion filed within ten days of the entry of judgment questioning the correctness of this Court’s prior decision should be construed as a motion for reconsideration under Federal Rule of Civil Procedure 59(e), regardless of its characterization as a Rule 60(b) motion. Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 41 (2d Cir.1982); see Browder v. Director, Department of Corrections, 434 U.S. 257, 261 n. 5, 98 S.Ct. 556, 559 n. 5, 54 L.Ed.2d 521 (1978) (habeas corpus case). Construing Word’s motion as a.Rule 59(e) motion will preserve his right to appeal the merits of his claims, if notice of appeal is timely filed from this decision. See Rule 11, 28 U.S.C. foil. § 2255; Fed.R.App.P. 4(a); see generally United States v. Whitford, 758 F.2d 329 (8th Cir.1985) (discussing time limits for appeal in a § 2255 case). Appellate review of Rule 60(b) motions is governed by an abuse of discretion standard and, therefore, the correctness of the underlying judgment may not be reached. Browder, 434 U.S. at 263 & n. 7, 98 S.Ct. at 560 & n. 7; Nestle Co. v. Chester’s Market, Inc., 756 F.2d 280, 282 (2d Cir.1985).

Word’s motion for reconsideration is denied for the reasons stated in this Court’s prior opinion, dated August 27, 1985. Only two points raised by Word merit further discussion.

First, Word argues that this Court incorrectly denied his claim challenging the superseding grand jury indictment without first granting an evidentiary hearing. See Rule 8, 28 U.S.C. foil. § 2255 (1982). When there is an inconclusive factual record, he continues, the court may not deny a § 2255 motion solely on the basis of government affidavits without first conducting an evidentiary hearing. To search for facts supporting his claim, Word requests that the grand jury minutes be produced, at public expense, and that he be allowed other related discovery. See Rule 6, 28 U.S.C. foil. § 2255 (1982).

Although Word is correct in claiming that, when there is a genuine factual dispute, a court may not resolve that dispute solely on the basis of contradicting government affidavits without first conducting an evidentiary hearing, see Taylor v. United States, 487 F.2d 307 (2d Cir.1973) (per curiam), Word has not carried his initial burden of demonstrating a genuine factual issue. See Newfield v. United States, 565 F.2d 203, 207 (2d Cir.1977) (A § 2255 motion “does not entitle petitioner automatically to a hearing.”).

The First Circuit confronted a claim identical to the one Word now makes and held that the district court need not conduct an evidentiary hearing based on “such a fishing expedition.” DeVincent v. United States, 632 F.2d 145, 146 (1st Cir.), cert. denied, 449 U.S. 1038, 101 S.Ct. 618, 66 L.Ed.2d 501 (1980). The court stated that “[ojnce it appeared from DeVincent’s affidavit that he lacked proof of his allegation and was merely speculating about the way in which he was indicted, there was no need to ... hold further proceedings including an evidentiary hearing.” Id. (emphasis added).

Second, Word argues that this Court incorrectly computed the thirty day period under § 3161(c)(2). Pointing to the statutory language indicating that time is calculated from “the date on which the defendant first appears through counsel,” he claims that he had only fourteen days to prepare on the superseding indictment, rather than the twenty-five day period calculated by this Court. He asserts that he first appeared through counsel on the superseding indictment on November 15, 1982, not November 4, 1982, when the superseding indictment was filed. This miscalculation prejudiced him, he claims, since the additional time would have enabled him to change counsel and thereby present a different defense.

Initially, this Court notes that Word’s claim of prejudice is illusory since, even assuming Word’s calculations are correct, Word would have had only slightly more than two weeks to change counsel. This Court rejected Word's request, made on November 28, 1982, the day before trial was scheduled to begin, for a three-week continuance so that Word could change counsel. This three-week continuance was necessary, Word claimed, to accommodate his “new” counsel’s “prior commitments.” Thus, even assuming Word’s calculations are correct, his “new” counsel was unavailable to try the case at the time it would have been rescheduled. Moreover, his appointed counsel requested no additional time to prepare on the superseding indictment but instead, as noted previously, filed a motion, at Word’s insistence, accusing the Government of taking too much time.

To the extent that this Court miscalculated the thirty day period under § 3161(c)(2), it now believes that its original calculation was too generous to Word. This Court believes that in a superseding indictment situation, “where the later indictment charges the same offenses and necessitates no changes in or new formulations of defense strategies, the § 3161(c)(2) trial preparation time period runs from the date of the original indictment.” United States v. Rojas, 607 F.Supp. 1439, 1446 (N.D.Ind.1985). If the changes in the superseding indictment are not insubstantial, however, the district court must grant a “reasonable continuance” to allow the defendant to prepare a defense to the new charges. United States v. Guzman, 754 F.2d 482, 486 (2d Cir.1985). Even assuming Word did not receive notice of the superseding indictment until November 15, 1982, this Court believes fourteen days is a “reasonable continuance” before trial on the expanded conspiracy count of the superseding indictment, especially given that Word’s appointed counsel did not complain of a lack of opportunity to prepare adequately for trial.

CONCLUSION

Accordingly, Word’s motion for reconsideration is denied.

SO ORDERED.

      . This Court considers the motion timely under Rules 6(a) [new version effective August 1, 1985] and (e), Fed.R.Civ.P. Cf. Afran Transport Co. v. S/T Maria Venizelos, 450 F.Supp. 621, 623 n. 2 (E.D.Pa.1978) (Fed.R.Civ.P. 52(b)). To be safe, however, if Word intends to appeal this decision, he should calculate the sixty-day time within which a notice of appeal must be filed for actions in which the United States is a party from August 27, 1985, not from the date of this decision. See Rule 4(a), Fed.R.App.P.

      . This Court notes, en passant, that access to grand jury minutes is limited to a particularized, discrete showing of need. In re Federal Grand Jury Proceedings, 760 F.2d 436, 439 (2d Cir.1985).

      . Even assuming that Word is entitled to receive the grand jury minutes, his claim that the public pay for their reproduction must fail since 28 U.S.C. § 753(f) (1982) does not grant indigent prisoners an absolute right to free transcripts on a § 2255 motion. United States v. MacCollom, 426 U.S. 317, 96 S.Ct. 2086, 48 L.Ed.2d 666 (1976) (plurality opinion).

      . See also DeVincent v. United States, 602 F.2d 1006 (1st Cir.1979) (prior decision indicating that a route short of a full evidentiary hearing might be appropriate to determine whether a genuine factual issue exists).

      . Word did not, however, explain what event occurred on November 15 which he considers an appearance through counsel.

      . The Supreme Court has granted certiorari in a Ninth Circuit case on this very issue and, therefore, a definitive answer may soon be forthcoming. See United States v. Rojas-Contreras, — U.S. —, 105 S.Ct. 1167, 84 L.Ed.2d 319 (1985).


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

text:
    Victor Jay JORDAN, Petitioner, v. Vernon G. HOUSEWRIGHT, Attorney General of the State of Nevada, Respondents.
    No. CV-R-85-265-ECR.
    United States District Court, D. Nevada.
    Oct. 3, 1985.

      Victor Jay Jordan, in pro per.
    Brian McKay, Atty. Gen. by Brooke Neil-sen, Asst. Atty. Gen., Carson City, Nev., for respondents.
   ORDER

EDWARD C. REED, Jr., District Judge.

Victor Jordan petitions this Court for a writ of habeas corpus under 28 U.S.C. § 2254. Presently incarcerated in the Nevada State Prison, a jury found Jordan guilty of grand larceny, robbery with a deadly weapon, attempted robbery with a deadly weapon, battery with a deadly weapon, and carrying a concealed weapon. Jordan was sentenced to sixty-five years in prison.

In support of his petition, Jordan argues: (1) that he was denied effective assistance of counsel; (2) that his confession should not have been admitted into evidence; and (3) that the trial court failed to advise him of his right not to testify at trial. Jordan is represented by John W. Aebi, Esq., on this petition.

Although Jordan did not request an evi-dentiary hearing, this Court considered those factors which would require one to be held. See Townsend v. Sain, 372 U.S. 293, 312-313, 83 S.Ct. 745, 756-757, 9 L.Ed.2d 770 (1963). Except as noted below, the record before this Court adequately provides the necessary information.

Jordan did not pursue a direct appeal to the Nevada Supreme Court. Jordan signed a stipulation to waive his direct appeal in order to avoid further charges for an alleged attempted escape from the Churchill County jail. Jordan’s state habeas petition was denied July 10, 1984. The Nevada Supreme Court dismissed Jordan’s appeal from the denial of his state habeas corpus petition as being untimely. Thus, none of the issues before this Court have ever been raised before the Nevada Supreme Court. However, at the time Jordan filed his federal habeas petition, Jordan had exhausted his state remedies because he would be effectively precluded from raising any of these issues before the Nevada Supreme Court.

Jordan argues two constitutional claims in support of his petition. He argues first, that his confession should not have been admitted into evidence, and second, that the trial court failed to advise him of his right not to testify at trial. Respondent argues that Jordan has deliberately bypassed orderly state court procedures for review of the constitutional issues he now raises and the petition should be dismissed. Respondent points to the signed stipulation as evidence of Jordan’s knowing and deliberate decision to forego his direct appeal from his conviction.

Because Jordan’s state remedies were no longer available at the time he filed his federal habeas petition, this Court may dismiss the petition without reviewing the merits only if we determine that the “habeas applicant, after consultation with competent counsel or otherwise, understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts, whether for strategic, tactical, or any other reasons that can fairly be described as the deliberate bypassing of state procedures ...” Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 849, 9 L.Ed.2d 837 (1963). This Court finds that Jordan deliberately bypassed his direct appeal. The stipulation was signed outside the thirty-day time period for the filing of a notice of appeal. However, at the eviden-tiary hearing on Jordan’s state habeas petition, Jordan’s counsel testified that the decision to waive the direct appeal was made within the thirty-day limit. Exhibit D, Tr. 40-41. The stipulation not to appeal was made in order to avoid charges of attempted escape for which Jordan would have faced the possibility of significant additional years in prison.

The transcript of the evidentiary hearing on Jordan’s state habeas petition further reveals that the decision not to appeal was made after numerous consultations with his attorneys. Id. at 39. Jordan was an escaped prisoner from Georgia. At the time of the alleged escape he was awaiting sentencing on several felony convictions. The chance of being sentenced to substantial additional years was great. Jordan had legitimate reasons which he understood and, accordingly, deliberately bypassed his direct appeal on whether his confession should have been admitted at his trial and whether the trial court failed to advise him of his right to testify at trial. Thus, the habeas petition should be dismissed as to these claims.

Jordan next argues that his trial counsel was ineffective. He bases this argument on: (1) counsel’s purported failure to investigate and prepare his case before trial; (2) counsel’s advice to waive his right to directly appeal the guilty verdicts; and (3) counsel’s purported failure to prepare Jordan for his sentencing hearing or to adequately represént him at the hearing.

The Supreme Court has recognized that the “right to counsel is the right to the effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970). The standard to determine effective assistance of counsel was recently enunciated by the Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). .The Court held that: “[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id., 104 S.Ct. at 2064. First, the defendant must show that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed to the defendant by the Sixth Amendment. Id. Second, the defendant must show that the deficient performance prejudiced the defense. This requires a showing that counsel’s errors were so serious as to deprive the defendant to a fair trial, a trial whose result is reliable. Id.

Jordan first alleges that his trial counsel, Barbara Byrne, Esq., failed to talk to potential witnesses as requested by Jordan. At the state evidentiary hearing, Ms. Byrne testified fully about her efforts on his behalf, both pretrial, during trial, and post trial. Before trial, she attempted to locate and talk with those individuals Jordan felt would support his case. Exhibit D, Tr. 53-56.

Investigation is one of the keys to effective counsel. This is especially true with respect to important witnesses. However, counsel need not pursue “every path until it bears fruit and all conceivable hope withers.” United States v. Tucker, 716 F.2d 576, 584 (9th Cir.1983) quoting Lovett v. Florida, 627 F.2d 706, 708 (5th Cir.1980). See also United States v. Parr-Pla, 549 F.2d 660, 664 (9th Cir.1977), cert. denied 431 U.S. 972, 97 S.Ct. 2935, 53 L.Ed.2d 1069 (1977) (Counsel’s failure to seek continuance to attempt to locate missing witness did not constitute ineffective representation, since the record indicated that at most the witness would have confirmed portions of defendant’s testimony relating to a collateral issue.).

Ms. Byrne interviewed Jordan several times prior to trial. She made a pretrial motion in limine, a motion for change of venue, and successfully had one of the counts against him dismissed. Counsel’s performance was neither deficient nor prejudicial to Jordan’s defense.

Jordan next alleges that the advice to waive his direct appeal in return for no attempted escape charges being filed was incompetent. This argument is without merit. Jordan faced the threat of a significant additional sentence. Both Ms. Byrne, and his subsequent attorney, Lee Armstrong, felt that there was little merit to any of the issues he could have raised. Jordan’s counsel had good reason to advise Jordan to waive his appeal.

Jordan’s final allegation of ineffective assistance of counsel at his sentencing raises significant issues. Jordan was sentenced in Fallon, Nevada, on June 15, 1982. The court moved the sentencing date up approximately one week because of Jordan’s attempted escape during the night of June 14, 1982, or in the early morning of June 15, 1982.

Jordan was found in the evidence locker of the Churchill County Sheriff’s office at approximately 4:00 a.m. on the morning of June 15, 1982. He had apparently consumed quantities of both marijuana and alcohol. When Ms. Byrne attempted to speak with Jordan on the morning of June 15, 1982, the Sheriff of Churchill County refused to allow Jordan out of the padded cell he had been placed into and refused to allow Ms. Byrne into that cell. Exhibit D, Tr. 59. Counsel was forced to attempt to speak with Jordan through a one to two inch gap, provided by a chained door, while electrical work was being conducted nearby. Id. at 59-60. At the time counsel attempted to communicate with her client, Jordan was lying on the floor of his cell. Id. at 60. He appeared to be badly hungover, sick and did not understand what counsel was saying. Id. at 62.

It appears to the Court that Jordan may have been denied effective assistance of counsel at his sentencing. Not only may counsel’s performance have been deficient, but Jordan may have been prejudiced by the inadequate performance. There was apparently no consultation between Jordan and his counsel regarding the pre-sentence report. Given the fact that the sentencing judge followed the report’s recommendation, it would seem a necessity for Jordan to have understood the report. Despite the fact that counsel doubted Jordan’s ability to independently read and understand the report, she agreed to proceed with sentencing. Id. at 89. Further, Jordan may not even have been aware of the significance of the June 15, 1982, sentencing. See Id.

This Court requires additional briefing on this issue by both petitioner and respondent. The parties should direct their attention to the constitutional issues of Jordan’s right to effective assistance of counsel, keeping in mind the standard enunciated in Strickland.

IT IS, THEREFORE, HEREBY ORDERED that the petition for habeas corpus is DENIED as to all claims except whether or not Jordan was denied effective assistance of counsel at his sentencing.

IT IS FURTHER HEREBY ORDERED that petitioner and respondent shall each file contemporaneous briefs within thirty (30) days on the said issue of Jordan’s assistance of counsel at sentencing. Thereafter, petitioner and respondent shall each have fifteen (15) days within which to file contemporaneous answering briefs.

As to the said remaining claim, the Court may at a later time determine to hold an evidentiary hearing, if needed. Such decision will be made after the briefs mentioned above have been filed and considered.