author: ROYNER, District Judge.

text:
    Gerard COOPER, Plaintiff, v. Richard ELROD, et al., Defendants.
    No. 85 C 312.
    United States District Court, N.D. Illinois, E.D.
    July 17, 1985.
   MEMORANDUM OPINION AND ORDER

ROYNER, District Judge.

Plaintiff, a pretrial detainee in the State of Illinois, claims that defendants unlawfully transferred him from the Cook County Juvenile Detention Center (“Audy Home”) to the Cook County Jail after he turned seventeen years old because they did not grant him a prior hearing. Plaintiff bases his claim on an Illinois statute which provides that when a convicted person originally committed to the Juvenile Division of the Illinois Department of Corrections (“IDOC”) reaches the age of seventeen, there shall be a hearing to determine whether or not that person shall be transferred to the Adult Division. Ill.Rev.Stat. ch. 38, ¶ 1005-8-6(c), 1003-10-7(a), (c) (1983). Plaintiff claims that defendants, in effecting his automatic transfer, acted under color of state law to deprive him of his Fourteenth Amendment rights to equal protection and due process in violation of 42 U.S.C. § 1983. This Court has proper subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343.

Prior to transfer, plaintiff Gerard Cooper filed in Cook County Circuit Court a motion to prevent transfer, which was denied on Friday, January 11, 1985. On Monday, January 14, 1985, after the transfer had occurred, plaintiff argued a motion for a temporary restraining order before this Court, which motion also was denied. Plaintiff now requests that this Court grant him the following relief: (a) a holding that the policy resulting in plaintiff’s automatic transfer is unconstitutional; and (b) entry of an order directing defendants to transfer plaintiff Cooper back to the Audy Home until he is afforded a judicial hearing to determine whether he should be transferred to the Cook County Jail.

Presently before this Court are cross-motions for summary judgment pursuant to Fed.R.Civ.P. 56. For the reasons given below, defendants’ motion for summary-judgment in their favor is granted, and plaintiff’s motion for summary judgment is denied.

Facts

Plaintiff, Gerard Cooper, was born on January 12, 1968. On August 31, 1984, an indictment charging Cooper with murder was filed. Because he was unable to meet the $250,000 bond and because he was sixteen years old at the time, he was placed in the Audy Home pending trial.

The Audy Home is a detention center for juveniles, established by the County Board of Cook County, pursuant to Chapter 23 of the Illinois Revised Statutes, “Charities and Public Welfare.” Ill.Rev.Stat. ch. 23, ¶ 2681 (1983). The Cook County Jail houses inmates aged seventeen and over. Inmates of the Cook County Jail are under the custody of the Cook County Sheriff, and within the Cook County Department of Corrections. Ill.Rev.Stat. ch. 125, ¶¶ 201-216 (1983). It is the policy of the Cook County Corrections Department, the Cook County Jail, and the Audy Home to transfer Audy Home inmates to the Cook County Jail when they turn seventeen years old. The transfer is automatic: there is no prior hearing.

On Saturday, January 12, 1985, Cooper turned seventeen years old. On Monday, January 14,1985, pursuant to the aforesaid county policy, defendants caused plaintiff Cooper to be transferred from the Audy Home to Cook County Jail without a hearing. Cooper is currently incarcerated at the Cook County Jail, housed in a school tier for 17 to 20 year olds. Under the Illinois Code of Corrections, Ill.Rev.Stat. ch. 38, ¶¶ 1003-1-1 to 1008-6-1, however, when a convicted person who is originally housed in the Juvenile Division of the IDOC turns seventeen years old, the sentencing court must conduct a hearing to determine whether that person should remain under the auspices of the Juvenile Division or be transferred to the Adult Division. Ill.Rev.Stat. ch. 38, ¶¶ 1005-8-6(c), 1003-10-7(a) (1983). These hearings are conducted by the sentencing court and the court is to consider all relevant matter, including, inter alia, the seriousness of the offense, “whether the protection of the community requires transfer,” and “the sophistication and maturity of the juvenile.” Ill.Rev.Stat. ch. 38, ¶ 1003-10-7(c).

Only persons who have been convicted and sentenced to a term of imprisonment for a felony are committed to the IDOC and thus are within the purview of the Illinois Corrections Code. All pretrial detainees in Illinois, all those convicted persons awaiting sentencing, and all convicted persons sentenced to a term of imprisonment for less than one year, are under the custody of the Sheriff in the various county corrections systems. See Ill.Rev.Stat. ch. 38, ¶¶ 1003-1-2(b), 1005-8-6(b) (1983).

Substantive Due Process Claim

Plaintiff Cooper claims first that defendants have violated his substantive due process rights. According to Cooper, Illinois law creates a constitutionally protected liberty interest for convicted persons in remaining in the Juvenile Division of the IDOC if they were originally housed there. Plaintiff argues that because pretrial detainees retain at least those constitutional rights enjoyed by convicted persons, Bell v. Wolfish, 441 U.S. 520, 545, 99 S.Ct. 1861, 1877, 60 L.Ed.2d 447 (1979), he had a substantive due process right to a hearing before transfer to Cook County Jail.

The Fourteenth Amendment prohibits any State from depriving a person of life, liberty, or property without due process of law. The Supreme Court has established that the Due Process Clause in and of itself does not protect a convicted prisoner from arbitrary transfer from one institution to another within the state prison system. Indeed, that an inmate is transferred to a much more disagreeable institution does not implicate a Fourteenth Amendment liberty interest. Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976); Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976).

It is true that “state statutes may create liberty interests that are entitled to the procedural protections of the due process clause of the Fourteenth Amendment.” Vitek v. Jones, 445 U.S. 480, 488, 100 S.Ct. 1254, 1261, 63 L.Ed.2d 552 (1980). In the context of intrastate prison transfers, a state statute creates a liberty interest in remaining in a particular penal institution only when that statute places a “substantive limitation on the prison officials’ exercise of discretion” to transfer an inmate. Shango v. Jurich, 681 F.2d 1091, 1101 (7th Cir.1982). See also Harris v. McDonald, 737 F.2d 662 (7th Cir.1984).

Under Illinois law, prison officials have no discretion to transfer convicted 17 year olds from the Juvenile Division of the IDOC to its Adult Division. Rather, Section 3-10-7 of the Illinois Code of Corrections provides that the sentencing court shall determine whether or not a juvenile under 17 years of age when sentenced shall remain under the auspices of the Juvenile Division when he turns 17 years old. Further, a convicted person originally committed to the Juvenile Division is not required by law to be transferred to the Adult Division until he turns 21 years old; until that time, the sentencing court retains jurisdiction over such persons. Ill.Rev.Stat. ch. 38, ¶¶ 1005-8-6(c), 1003-10-7(a), (c). Thus, the Illinois statute creates a liberty interest for convicted persons aged 17 to 21 in remaining in the Juvenile Division of the IDOC if they were originally committed there.

In this case, plaintiff Cooper is a pretrial detainee, and thus is outside the scope of the Illinois Code of Corrections, and within the jurisdiction of the Cook County Department of Corrections. Plaintiff argues that nonetheless he has a substantive due process right to a judicial hearing before transfer to Cook County Jail. To establish this claim, plaintiff relies solely on Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), where the Supreme Court noted: “pretrial detainees, who have not been convicted of any crimes, retain at least those constitutional rights that we have held are enjoyed by convicted persons.” Id. at 545, 99 S.Ct. at 1877.

Plaintiffs reliance is misplaced. In Bell v. Wolfish, 441 U.S. at 545, 99 S.Ct. at 1877, the Supreme Court first reviewed some of the constitutional protections retained by convicted persons despite their conviction and confinement in prison: freedom of speech and religion under the First and Fourteenth Amendments, protection against invidious discrimination on the basis of race under the Equal Protection Clause, and the protection of the Due Process Clause to prevent additional deprivation of life, liberty, or property without due process of law. A fortiori, the Court reasoned, pretrial detainees retain at least those constitutional protections. Id. As reviewed above, however, the Due Process Clause in and of itself does not give convicted persons any constitutional protection from intra-state prison transfer, for whatever reason. Meachum v. Fano, 427 U.S. at 225, 96 S.Ct. at 2538; Montanye v. Haymes, 427 U.S. at 242, 96 S.Ct. at 2547. Because the right to a pre-transfer hearing is not among those constitutional protections which convicted persons retain, Bell v. Wolfish does nothing to establish such a constitutional right for pretrial detainees such as Cooper.

Of course, where the state statutorily creates a liberty interest for a certain group of state prisoners, procedural due process is required to insure that the state-created right is not arbitrarily abrogated. See Meachum v. Fano, 427 U.S. at 226, 96 S.Ct. 2539 (and cases cited therein). However, Section 3-10-7 of the Illinois Code of Corrections creates no liberty interest for plaintiff Cooper. Cooper has not yet been, and under Illinois law will never be, committed to the Juvenile Division of the IDOC. (See discussion infra.)

In sum, defendants’ refusal to give plaintiff Cooper a hearing prior to transfer to the Cook County Jail did not deprive Cooper of any substantive or procedural due process rights.

Equal Protection Claim

Plaintiff also claims that defendants have deprived him of his right to equal protection of the laws. Because Illinois law provides convicted persons originally committed to the Juvenile Division of the IDOC with a judicial hearing prior to transfer to the Adult Division, plaintiff argues that the State’s denial of a similar hearing to pretrial detainees prior to transfer from the Audy Home to Cook County Jail violates the Equal Protection Clause of the Fourteenth Amendment.

The Fourteenth Amendment guarantees all persons the equal protection of the laws. U.S. Const, amend. XIV. The State is required to govern impartially and may not draw distinctions between individuals based solely on differences that are irrelevant to a legitimate governmental objective. Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983). In applying the Equal Protection Clause, however, the Supreme Court has recognized consistently that the Fourteenth Amendment does not deny to States the power to treat different classes of persons differently. Reed v. Reed, 404 U.S. 71, 75, 92 S.Ct. 251, 253, 30 L.Ed.2d 225 (1971) (and cases cited therein). Thus, a preliminary step in equal protection analysis is to determine whether the persons who are subject to disparate treatment are similarly situated. Johnson v. Smith, 696 F.2d 1334 (11th Cir.1983).

Plaintiff claims that the State discriminates between pretrial detainees and convicted persons in Illinois. An examination of the statutory scheme, however, reveals that the distinction is not between pretrial detainees and convicted persons, but rather between short-term and long-term inmates. Offenders sentenced to a term of imprisonment for a felony are committed to the penitentiary system of the Illinois Department of Corrections. Offenders sentenced to a term of imprisonment of less than one year, however, are committed to the custody of the Sheriff. Ill.Rev.Stat. ch. 38, ¶ 1005-8-6 (1983). Also in county custody are pretrial detainees and convicted persons awaiting sentencing. See Ill.Rev.Stat. eh. 125, ¶ 203(b); ch. 38, ¶¶ 1003-1-2, 1005-8-7. Thus, all inmates who are imprisoned on a temporary or short-term basis are in the custody of the Sheriff, in the various county corrections systems, while all long-term prisoners are committed to the Illinois Department of Corrections.

Several courts have held that the Equal Protection Clause is not implicated where county authorities treat their prisoners differently than the state Department of Corrections treats its prisoners. Dawson v. Kendrick, 527 F.Supp. 1252 (S.D.W.Va.1981); Kersh v. Bounds, 501 F.2d 585 (4th Cir.1974), cert. denied, 420 U.S. 925, 95 S.Ct. 1120, 43 L.Ed.2d 394 (1975). Plaintiff does not challenge the State’s authority to delegate the responsibility for one class of prisoners to the county governments and for another to the state Department of Corrections. According to Dawson and Kersh, while this division of authority may never justify subjecting county prisoners to unconstitutional conditions or practices, it does not, as a matter of equal protection, require that the conditions, practices and, especially, the rules at the various institutions of the two governmental entities be identical. Dawson, 527 F.Supp. at 1287.

As the court stated in Dawson: “Thus, where a practice or policy in the ... County Jail is constitutionally sound, this court must defer to the informed judgment of the parties charged with the jail’s management even though a seemingly more en-lighted approach has been adopted for the State Prison.” In an earlier opinion, the Fourth Circuit had held that where “the county prisoners are treated alike and the Department prisoners are treated alike, ... there is no Equal Protection violation.” Kersh v. Bounds, 501 F.2d at 588.

There are certainly many obvious differences in the situations of short-term versus long-term inmates. The very fact that a prisoner will remain in the system longer creates a need for more rules and procedures to cover the greater varieties of situations and problems that will occur. Further, when an inmate remains in the prison system longer, the authorities have a greater interest in and control over that inmate’s development over time, including his placement within the system and his rehabilitation. Of course, whether two groups are similarly situated for purposes of challenged disparate treatment depends upon the nature of the distinction. Reed v. Reed, 404 U.S. 71, 77, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971).

Where courts have found equal protection violations involving two groups of prisoners, the circumstances were distinguishable from those in the instant case. For example, in Hill v. Hutto, 537 F.Supp. 1185 (E.D.Va.1982), long-term felons housed in a city jail awaiting transfer to overcrowded state prisons were not afforded the programs and rehabilitation opportunities that were available in the state system. The court found that this difference in the treatment of similarly situated convicted persons based on their location violated the Equal Protection Clause. Id. at 1189. The court was careful to limit its holding to substantive rules because requiring the city jail to adopt the Virginia Department of Correction’s procedural regulations would be an undue intrusion into the jail’s administration. Id. at 1190.

Also relevant is Lock v. Jenkins, 641 F.2d 488 (7th Cir.1981), where pretrial detainees being housed in a state prison for safekeeping were subjected to significantly more burdensome conditions than were convicted persons in the same institution. The court held that absent a rational justification of the different treatment, this was a violation of equal protection. Id. at 497. It is helpful to compare Lock with Kersh v. Bounds, 501 F.2d at 588-89, where the Fourth Circuit found no equal protection problem where county prisoners temporarily housed in state prison were denied elective medical treatment.

These cases illustrate that the nature of the disparate treatment is significant in determining whether an equal protection problem exists. The court in Hutto found that for purposes of rehabilitation, a long-term felon could not be treated like the pretrial detainees with whom he was housed in the city jail; equal protection required that he be given the same opportunities as similarly situated convicted persons. Similarly, in Kersh, the state system was not required to pay for the elective medical treatment of temporary detainees simply because it provided such treatment to its long-term inmates. On the other hand, unlike benefits such as rehabilitation programs and elective medical treatment which are specifically intended for the long-term prisoner, decent conditions of confinement are not related to that distinction between county and state inmates. Thus, in Lock, the court held that all inmates of the defendant state prison must be treated similarly for that purpose.

Swansey v. Elrod, 386 F.Supp. 1138 (N.D.Ill.1975), is the only case cited by plaintiff or uncovered by this Court which found that a county corrections system was required by the Equal Protection Clause to give pretrial detainees in its custody treatment similar to that given convicted persons in the State Department of Corrections in compliance with the State Code of Corrections. Id. at 1143-44.

In Swansey, plaintiffs protested the Cook County Sheriffs policy regarding pretrial detainees between the ages of 13 and 17 who were to be tried as adults. These detainees were automatically housed at the Cook County Jail and commingled with adults. Plaintiffs claimed that the Sheriff's policy deprived them of equal protection of the laws because the Illinois Code of Corrections prohibits housing a minor under 17 years old with adults in the Adult Division, even if the minor was convicted in the adult criminal justice system.

The court in Swansey held that plaintiffs had demonstrated a likelihood of success on their equal protection claim, entitling them to a preliminary injunction. Where the State provided rehabilitation services to convicted juvenile felons because of their age, the court held it was irrational to deny unconvicted detainees the same services under similar conditions. Id. at 1144. Because the only reason advanced for the allegedly discriminatory treatment was the slight administrative inconvenience involved in transporting the juveniles to court once a month, the court found that Cook County’s action was not rationally related to a legitimate government purpose and, hence, violated the Equal Protection Clause. Id.

In its equal protection analysis, the Swansey court did not consider whether the two groups of inmates were similarly situated for equal protection purposes. Furthermore, in Swansey there was a direct dichotomy between the treatment of pretrial detainees and convicted persons of the same age group: all the 13 to 16 year olds to be tried as adults were pretrial detainees; none of the plaintiff class were convicted persons with short sentences. In the instant case, however, it is not true that plaintiff Cooper is treated differently than all convicted persons of his age solely because he is a pretrial detainee.

Pretrial detainees such as plaintiff Cooper are in a different situation than the convicted persons granted a pre-transfer hearing in Section 3-10-7. Section 3-10-7 provides that when a juvenile originally committed to the Juvenile Division of the IDOC turns 17 years old, he shall receive a judicial hearing to determine whether he should be transferred to the Adult Division. Thus, the class of persons afforded this special protection includes only those offenders who were sentenced when they were under 17 years old to a term of imprisonment of one year or more.

In contrast, convicted felons who are 17 years old at the time of sentencing are automatically committed to the Adult Division: those 17 year olds are not given a judicial hearing to determine whether they are better suited to the Juvenile Division or the Adult Division. Under Illinois law, it is the minor’s age at the time of sentencing, rather than at the time of the offense, which determines where he is originally committed. People v. Green, 104 Ill.App.3d 278, 60 Ill.Dec. 38, 432 N.E.2d 937 (1982); People v. Costello, 95 Ill.App.3d 680, 51 Ill.Dec. 178, 420 N.E.2d 592 (1981).

The legislative scheme, then, distinguishes between those who are given a long-term sentence when they are under age 17, and all others who are sentenced at age 17 or older. The statute gives special protections to the younger group: they are originally committed to the Juvenile Division; they cannot be transferred to the Adult Division without a prior judicial hearing; and the sentencing court retains jurisdiction over them until they reach age 21.

Plaintiff Cooper, if he is ever convicted, will be sentenced at age 17 or older. If Cooper is convicted, then, he will be committed automatically to the Adult Division of the IDOC: there will be no individualized determination made.

The statutory scheme thus classifies convicted persons by their age group, with the relevant age being the offender’s age at the time of sentencing. Plaintiff Cooper is in the age group which does not receive a judicial hearing prior to commitment to the Adult Division. Given these circumstances, defendants, by sendihg 17 year old Cooper to the 17 to 20 year old section of the Cook County Jail, have not denied him a right accorded similarly situated convicted persons.

Conclusion

In conclusion, this Court finds that defendants have not deprived plaintiff Cooper of the equal protection of the laws. Further, Cooper had no substantive due process right, based on either the Due Process Clause or an Illinois statute, to a judicial hearing prior to transfer to Cook County Jail. For these reasons, defendants’ motion for summary judgment is granted and plaintiffs’ motion correspondingly is denied.

Appendix

Paragraph 1005-8-6 provides in pertinent part:

$ ‡ ‡ $ sfe jfc
(c) All offenders under 17 years of age when sentenced to imprisonment shall be committed to the Juvenile Division of the Department of Corrections .... The committing court shall retain jurisdiction of the subject matter and the person until he or she reaches the age of 21 unless earlier discharged. However, the Juvenile Division of the Department of Corrections shall after a juvenile has reached 17 years of age, petition the court to conduct a hearing pursuant to subsection (c) of Section 3-10-7 of this Code.

Paragraph 1003-10-7 provides in pertinent part:

§ 3-10-7. Interdivisional Transfers, (a) In any case where a juvenile was originally committed to the Juvenile Division under Section 5-8-6, the Department of Corrections shall, within 30 days of the date that the juvenile reaches the age of 17, send forma.1 notification to the sentencing court and the State’s Attorney of the county from which the juvenile was sentenced indicating the day upon which the juvenile offender will achieve the age of 17. Within 90 days of receipt of that notice, the sentencing court shall conduct a hearing, pursuant to the provisions of subsection (c) of this Section, to determine whether or not the juvenile shall continue to remain under the auspices of the Juvenile Division or be transferred to the Adult Division of the Department of Corrections.
(c) Any interdivisional transfer hearing conducted pursuant to subsection (a) of this Section shall consider all available information which may bear upon the issue of transfer. All evidence helpful to the court in determining the question of transfer, including oral and written reports containing hearsay, may be relied upon to the extent of its probative value, even though not competent for the purposes of an adjudicatory hearing.
The court shall consider, along with any other relevant matter, the following:
1. The seriousness of the offense to the community and whether the protection of the community requires transfer.
2. Whether the offense was committed in an aggressive, violent, premeditated or willful manner.
3. Whether the offense was against persons or against property, greater weight being given to offenses against persons especially if personal injury resulted.
4. The sophistication and maturity of the juvenile as determined by consideration of his home, environmental situation, emotional attitude and pattern of living.
5. The record and previous history of the juvenile, including previous contacts with the Juvenile Division, other law enforcement agencies, juvenile courts and other jurisdictions, prior periods of probation to the Juvenile Court, or prior committments to juvenile institutions.
6. The prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile by the use of procedures, services and facilities currently available to the Juvenile Division.
* * * # * *

      . Plaintiff brought this action in the alternative as an application for a writ of habeas corpus pursuant to 28 U.S.C. §§ 2241-2256. (Compl. at ¶ 2.) While some courts hold that when a prisoner challenges the location of his incarceration a writ of habeas corpus is the proper remedy, in those cases, unlike the instant case, the applicant for the writ argued that confinement in a certain place vitiated the justification for his confinement. Swansey v. Elrod, 386 F.Supp. 1138, 1142 (N.D.Ill.1975); United States ex rel. Murray v. Owens, 341 F.Supp. 722 (S.D.N.Y.1972), rev’d on other grounds, 465 F.2d 289 (2d Cir.1972), cert. denied, 409 U.S. 1117, 93 S.Ct. 930, 34 L.Ed.2d 701 (1973). This Court finds that plaintiffs claim of an equal protection violation is properly brought as a § 1983 action.

      . The facts are undisputed. Thus, summary judgment shall be granted to the party who shows that he is "entitled to judgment as a matter of law.” Fed.R.Civ.P. 56.

      . Section 3 of the County Department of Corrections Act provides in pertinent part:
      § 3. Under the direction of the Sheriff the [County] department [of Corrections] shall have the powers and duties enumerated as follows:
      (a) To operate and have jurisdiction over the county jail, municipal houses of correction within the county and any other penal, corrections or prisoner diagnostic center facility operated by either the county jail or municipal houses of correction.
      (b) To have charge of all prisoners held in any institution, center or other facility in the county over which it has jurisdiction ... whether they are misdemeanants, felons, persons held for trial, persons held In protective custody, persons held for transfer to other detention facilities____ It may transfer or recommit any prisoners from one institution, ... to any other institution ... whenever it determines that such transfer would promote the welfare or rehabilitation of the prisoner, or that such transfer or recommitment is necessary to relieve overcrowding.
      Ill.Rev.Stat. ch. 125, ¶ 203 (1983).

      . See Appendix.

      . On July 11, 1985, while this Opinion was in final form, counsel for plaintiff sent this Court a letter informing the Court that plaintiff was convicted of murder on June 21, 1985. Plaintiff is currently scheduled for sentencing on July 18, 1985. For the following reasons, this Court finds that plaintiffs conviction did not render the instant action moot.

        As a pre-sentence detainee, plaintiff remains in the custody of the Sheriff at the Cook County Jail. Thus, Cooper continues to be affected by the allegedly unconstitutional injury he complained of initially: he is housed in Cook County Jail without the benefit of a pre-transfer hearing. Additionally, even after sentencing, plaintiff could continue to complain of the allegedly unconstitutional treatment accorded him while in defendants’ custody. Especially since the complaint requests "such other and further relief as the interests of justice may require" (Compl. at ¶ 3.), there is no reason that plaintiff could not simply reframe his request from injunctive relief to damages. Furthermore, plaintiff Cooper argues that if he should have been housed in the Audy Home pending trial, he is entitled to a hearing prior to commitment to the Adult Division of the IDOC. See plaintiff Cooper’s letter to the Court of July 11, 1985; plaintiff Cooper’s Reply Mem. at 7-8.
      Because plaintiff Cooper’s conviction does not affect the merits of this case, and in the interest of conservation of the Court’s judicial resources, this Opinion, including its references to Cooper as a pre-trial detainee, will be left intact.

      . See also Olim v. Wakinekona, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983) (Neither does an inter-state prison transfer, including one from Hawaii to California, deprive an inmate of any liberty interest protected by the due process clause in and of itself).

      . Note that section 5-8-6(c) states in part that the "Department of Corrections shall after a juvenile has reached seventeen years of age, petition the court to conduct a hearing pursuant to [Section 1003-10-7(c) ]." Ill.Rev.Stat. ch. 38, ¶ 1005-8-6 (1983) (emphasis added).

      . Cf. Cobb v. Atych, 643 F.2d 946 (3d Cir.1981). In Cobb, a group of pretrial detainees was transferred from a county jail in Philadelphia to several state prisons at a significant distance from the city. The Third Circuit found that pretrial detainees retain certain constitutionally protected liberty interests, including the sixth amendment rights of effective assistance of counsel and a speedy trial. Id. at 957. Because the transfer interfered with those rights, by removing the pretrial detainees from close proximity to counsel and potential witnesses, the court held that procedural due process protections were necessary.
      In the instant case, unlike Cobb, plaintiff does not allege that his transfer deprived him of established constitutional protections.

      . Furthermore, courts do not easily find statutorily-created liberty interests. For example, in Larson v. Mutcrone, 575 F.Supp. 1 (N.D.Ill.1982), aff’d without op., 723 F.2d 914 (7th Cir.1983), the court rejected plaintiffs argument that a policy statement from the "general purposes” section of the Illinois Code of Corrections gave rise to a protectible liberty interest. See also Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983) (The mere fact that a state created a careful procedural structure to regulate the use of administrative segregation did not indicate the existence of a protected liberty interest.); Trice v. Kerr, 578 F.Supp. 149 (W.D.Wis.1983) (Regulations that required prison officials to comply with substantive and procedural requirements before recommending inmate transfer did not create a liberty interest where the ultimate decision maker retained discretion.)

      . Although defendants are various Cook County officials, plaintiff apparently sues them as agents of the State. Plaintiff nowhere alleges that the Cook County Department of Corrections unlawfully discriminates between the pretrial detainees and the convicted persons in its custody. Rather, plaintiff maintains that the State’s failure to provide pretrial detainees with the same right that the Illinois Code of Corrections grants to convicted persons in the custody of the IDOC violates the Equal Protection Clause. Thus, in essence, it is the legislative classification between those within the jurisdiction of the IDOC and those who are relegated to the custody of the Sheriff which plaintiff attacks.

      . See also Dudley v. Stewart, 724 F.2d 1493 (11th Cir.1984) (Convicted felon in county jail awaiting transfer to state prison is entitled to whatever due process protections are afforded similarly situated convicted persons housed in state prison.)

      . Plaintiff in this case does not challenge the conditions of his confinement. While the complaint alleged that the Audy Home provides better conditions than does Cook County Jail, including greater safety, a better school, and more visitation (Compl. at ¶ 20), plaintiff has not introduced any such evidence in support of his motion for summary judgment. Furthermore, plaintiff has never sought to compare his conditions of confinement with those of juveniles in the State system.

      . Furthermore, equal protection analysis becomes murky in comparing the conditions of confinement of pretrial detainees and convicted persons. Due process requires that pretrial detainees not be punished. Schall v. Martin, 467 U.S. 253, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984). Thus, there is a more stringent standard applied to treatment of pretrial detainees: the conditions of their confinement may be no more burdensome than is necessary to ensure their presence at trial. Duran v. Elrod, 542 F.2d 998 (7th Cir.1976). See, e.g., Owens-El v. Robinson, 442 F.Supp. 1368 (W.D.Pa.1978) (Where pretrial detainees and convicted persons were commingled in the same institution, equal protection and due process dictated that the conditions of confinement had to be those constitutionally adequate for pretrial detainees.)

      . Further, in Swansey, plaintiffs had brought an Eighth Amendment claim as well as an Equal Protection count. After a preliminary injunction hearing, the court noted that there are crucial psychological distinctions between 13 to 16 year olds and 17 to 20 year olds, and that incarceration at Cook County Jail with older inmates could cause permanent psychological damage to the plaintiff class. It appears that the court in Swansey considered the two claims together: "Measured against the effects of the treatment accorded juveniles in Cook County jail [sic] the state has yet to present a rational reason for its behavior.” Id. at 1143. See supra note 9.

      . See note 5, supra.


source: Caselaw Access Project

author: ROVNER, District Judge.

license: Public Domain

text:
    Joseph LAZZARA, Plaintiff, v. HOWARD A. ESSER, INC., Defendant.
    No. 83 C 185.
    United States District Court, N.D. Illinois, E.D.
    July 17, 1985.
   MEMORANDUM OPINION AND ORDER

ROVNER, District Judge.

The plaintiff in this diversity action, Joseph Lazzara (“Lazzara”), sued Howard A. Esser, Inc. (“Esser”), an insurance broker, for breach of contract and negligence based on Esser’s failure to procure and maintain an agreed upon level of automobile insurance coverage for Lazzara. On April 1, 1985 this Court entered summary judgment in the amount of $150,000 in favor of Lazzara and against Esser, 604 F.Supp. 1205. Presently pending before this Court is Lazzara’s motion to amend the judgment to include both interest and attorneys’ fees. This Court has decided to grant the motion with regard to interest, but to base the award on Illinois, rather than Florida law, and to deny the motion for attorneys’ fees.

Facts

Lazzara handled his insurance needs through Esser for many years. In 1973 or 1974, Esser recommended that Lazzara increase his automobile liability insurance coverage to $1 million. Lazzara agreed and instructed Esser to procure such coverage for him. Esser, acting in its corporate capacity as an insurance broker, contracted to obtain $1 million in automobile insurance for Lazzara. To fulfill this contract, Esser procured a primary liability policy for Lazzara with Reliance Insurance Company (“Reliance”) and an excess liability policy with Aetna Casualty Company (“Aetna”). These policies were periodically renewed by Esser. These same insurance policies were in force when Lazzara’s insured automobile was involved in an accident, and a $510,000 judgment was entered against him by a state court in Florida.

The basis for Lazzara’s suit against Esser was that, at the time of the accident, a $150,000 gap existed in the coverage provided by the two policies which Esser had procured for Lazzara. The primary liability policy that Esser obtained from Reliance covered only the first $100,000 of Lazzara’s liability under the judgment; the excess liability policy that Esser obtained from Reliance covered only liability in excess of $250,000. Thus, in arranging Lazzara’s insurance coverage, Esser left a $150,000 gap, causing a judgment to be entered against Lazzara in that amount by a Florida state court.

Lazzara, an Alabama citizen, sued Esser, an Illinois corporation, invoking the diversity jurisdiction of this Court. On April 1, 1985 this Court granted summary judgment in favor of Lazzara and against Esser in the amount of $150,000. Joseph Lazzara v. Howard A. Esser, Inc., 604 F.Supp. 1205 (N.D.Ill.1985). Presently pending before this Court is Lazzara’s motion to amend the judgment to include both interest and attorneys’ fees. The Court will consider each separately.

Interest

Lazzara contends that by reason of Esser’s failure to properly procure his insurance, Esser is liable to Lazzara for statutory “interest on a judgment” based on Fla.Stat.Ann. § 55.03 (West 1985) from May 5, 1982, the date the Florida court entered judgment against him, through April 1, 1985, the date this Court entered summary judgment in his favor. This Court finds, however, that applying Illinois conflict of laws principles, the Illinois prejudgment interest statute, Ill.Rev.Stat. ch. 17, § 6402 (1983), governs the issue of interest on the judgment.

In a diversity action, a federal court must apply the choice of laws principles of the state in which it sits. Klaxon v. Stentor Electric Manufacturing Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941); McIntosh v. Magna Systems, Inc., 539 F.Supp. 1185 (N.D.Ill.1982). Because prejudgment interest is an item of substantive damages, it may be awarded only when available under state law and at the rate set by state law. Turner v. Japan Lines Ltd., 702 F.2d 752 (9th Cir.1983); In re Air Crash Disaster Near Chicago, Illinois on May 25, 1979, 644 F.2d 594 (7th Cir.1981). In Mitchell v. United Asbestos Corp., 100 Ill.App.3d 485, 55 Ill.Dec. 375, 426 N.E.2d 350 (5th Dist.1981), the Illinois Supreme Court determined that the best way to approach a conflicts of laws problem is to weigh the interests and public policies of each contact state as they relate to each transaction in issue, and not to mechanically apply one test to govern all situations. As such, Illinois has adopted the “most significant contacts” test of the Restatement Second of Conflicts of Law (1969) as the choice of law theory applicable to diversity actions sounding both in contract and tort. McIntosh, 539 F.Supp. at 1188. The “most significant contacts test” incorporates the presumption that local law should govern an issue unless another state has a more significant relationship. Ingersoll v. Klein, 46 Ill.2d 42, 262 N.E.2d 593 (1970). In both a contract and a negligence action, the conflict of laws inquiry is fundamentally the same. The court looks to either the place of injury or of contracting; to the place where the conduct causing the injury occurred or the place of negotiation of the contract; to the place of performance; to the situs of the subject matter of the contract; to the place of domicile, incorporation, and business of the parties; and to the center of gravity of the relationship between the parties. Restatement (Second) of Conflict of Laws § 188, 145 (1969); Boise Cascade Home & Land v. Utilities, Inc., 127 Ill.App.3d 4, 82 Ill.Dec. 180, 468 N.E.2d 442 (1st Dist.1984).

Both Lazzara and Esser agree that the substantive law of Illinois governs the issue of Esser’s liability to Lazzara. A separate inquiry must be made, however, to determine which state has a greater interest in having its law apply to the precise issue of the rate of interest to be applied to a judgment. This separate inquiry into the rate of interest is derived from the theory of “depecage” recently adopted by the Seventh Circuit. International Administrators Inc. v. Life Insurance Co. of North America, 753 F.2d 1373, 1376 n. 4 (7th Cir.1985); In re Air Crash, 644 F.2d at 611 n. 13; Reese, Depecage, 73 Columbia L.Rev. 58 (1973). Under the theory of depecage, this Court considers issues on which there is disagreement among the contact states over which rule of law is applicable to each issue. International Administrators, Inc., 753 F.2d 1373, 1376 n. 4. Because there is disagreement on the rate of interest applicable to the instant situation, the inquiry begins here.

The Florida “interest on a judgment” statute provides for interest on judgments at the rate of 12% per annum on judgments rendered in a Florida court. Fla.Stat.Ann. § 55.03 (West 1985). The Illinois prejudgment statute provides for interest to be calculated at the rate of 5% per annum. Ill.Rev.Stat. ch. 17, § 6402 (1983). Under the Illinois “most significant contacts” test, this Court finds that Illinois has a greater interest than Florida does in applying its interest rate to a judgment rendered in a federal court sitting in Illinois.

The insurance agreement entered into between Lazzara and Esser was executed in Illinois, and, although the place of negotiation is unclear, it appears that the contract was negotiated at least partially in Illinois. Illinois is also the center of gravity of the parties’ relationship, because Lazzara obtained his insurance through Esser, who was in Illinois. Moreover, Esser is an Illinois corporation, and, although Florida was the place of the accident, the conduct giving rise to the injury here — Esser’s failure to procure complete insurance coverage— occurred in Illinois. Additionally, enforcement of the insurance contract was sought in a district court sitting in Illinois, and damages were awarded under Illinois law.

Although Florida would have an interest in applying its interest statute to a judgment rendered in a district court sitting in Florida where the judgment was based on Florida law, this Court finds no similar interest applicable to a district court sitting in Illinois following Illinois law. Hence, the Illinois prejudgment interest statute is controlling.

The Illinois statute reads in pertinent part:

Creditors shall be allowed to receive at the rate of five (5) per centum per annum for all moneys after they become due on any bond, bill, promisory note, or other instrument in writing; on money lent or advanced for the use of another; on money due on the settlement of account from the day of liquidating accounts between the parties and ascertaining the balance on the money received to the use of another and retained without the owners knowledge; and on money withheld by an unreasonable or vexatious delay of payment.

Ill.Rev.Stat. ch. 17, § 6402 (1983). Because this Court has determined that Illinois has a greater interest in having its interest statute apply, Lazzara is awarded prejudgment interest at the statutory rate of 5% per annum from May 5, 1982, the date that the Florida judgment entered against Lazzara, through April 1, 1985, the date this Court entered summary judgment on behalf of Lazzara.

As to the issue of postjudgment interest, there is no dispute that the Illinois postjudgment interest statute applies. Merit Insurance v. Leatherby Insurance, 728 F.2d 943 (7th Cir.1984). The Illinois postjudgment interest statute provides that:

Judgments recovered before any court shall draw interest at the rate of 9% per annum from the date of the judgment until satisfied or 6% per annum when the judgment debtor is a unit of local government, as defined in Section 1 Article VII of the Constitution, a school district, a community college district, or any other governmental entity. When judgment is entered upon any award, report or verdict, interest shall be computed at the above rate, from the time when made or rendered to the time of entering judgment upon the same, and included in the judgment.

Ill.Rev.Stat. ch. 110, § 2-1303 (1983). Consequently, Lazzara is granted statutory postjudgment interest at the rate of 9% as set by Ill.Rev.Stat. ch. 110, § 2-1303.

Attorneys’ Fees

Lazzara maintains that Esser is liable for the attorneys’ fees he incurred in maintaining an action to compel payment by Esser on an insurance policy which Esser failed to procure. The statute applicable to insurance cases in Illinois is:

In any action by or against a company wherein there is in issue the liability of a company on a policy or policies of insurance or the amount of the loss payable thereunder, or for an unreasonable delay in settling a claim, and it appears to the court that such action or delay is vexatious and unreasonable, the court may allow as part of the taxable costs in the action reasonable attorney fees____

Ill.Rev.Stat. ch. 73, § 767 (1983).

The only issue to be determined, therefore, is whether Esser’s delay in settling Lazzara’s claim amounted to an unreasonable or vexatious delay. Vexatious delay is defined as delay without reasonable or probable cause or excuse. Songer v. State Farm Fire and Casualty Co., 106 Ill.App.3d 141, 62 Ill.Dec. 150, 435 N.E.2d 948 (5th Dist.1982). Neither time alone, nor any other single factor, is controlling in determining whether an insurer is guilty of vexatious delay in refusing to settle a claim. Fassola v. Montgomery Ward Insurance Co., 104 Ill.App.3d 825, 60 Ill.Dec. 581, 433 N.E.2d 378 (3rd Dist.1982). Rather the totality of circumstances, taken in broad focus, will determine the matter. Id. Additionally, when there is a legitimate issue to be determined, a finding of unreasonable or vexatious delay cannot be made. In the instant case, this Court has determined that a genuine legal issue was presented regarding whether Esser was a broker or an agent within the meaning of the Illinois insurance code, and hence, whether he was liable at all for failure to properly procure Lazzara’s insurance. Consequently, it was not unreasonable or vexatious for Esser to refuse settlement.

Illinois courts have previously determined that attorneys’ fees may be awarded in cases where an insurance broker has failed to properly procure requested insurance coverage. Omni Overseas Freighting Co., Inc. v. Cardell Insurance Agency, 78 Ill.App.2d 639, 33 Ill.Dec. 779, 397 N.E.2d 112 (1st Dist.1979). In Omni, the Illinois Appellate Court determined that Cardell Insurance Agency was liable to Omni Overseas because of its failure to properly procure liability insurance which covered property damage by Omni’s employees. The court also determined that to recover attorneys’ fees because of a broker’s failure to properly procure insurance, it is necessary to show “(1) that an obligation was incurred as a result of the defendant’s wrongdoing; and (2) that the amount of the obligation is reasonable.” Omni, at 644, 33 Ill.Dec. 779, 397 N.E.2d 112. In Omni, however, the plaintiffs were able to recover attorneys’ fees because the defendants’ refusal to settle was vexatious. But to the extent that the plaintiffs were unable to prove that the fees requested were reasonable, attorneys’ fees were denied. In the present case, to award attorneys’ fees where the delay in settlement was neither unreasonable nor vexatious would be to derogate the Illinois statute. Consequently, Lazzara is not entitled to attorneys’ fees. *

Conclusion

This Court awards Lazzara interest based on the Illinois prejudgment statute Ill.Rev.Stat. ch. 17, § 6402, from May 5, 1982 through April 1, 1985 and based on the Illinois postjudgment statutes, Ill.Rev. Stat. ch. 110, § 2-1303, from April 1, 1985 to the date the judgment is satisfied. This Court has also determined that Esser’s refusal to pay Lazzara did not amount to an unreasonable or vexatious delay, and thus Esser is not liable for Lazzara’s attorneys’ fees.

      . Indeed, it is difficult to understand why Florida’s "interest on a judgment” statute should even apply here for the period from May 5, 1982 to April 1, 1985 because Lazzara did not obtain his judgment in this Court until April 1, 1985. Florida does not have both a prejudgment interest statute and a post-judgment interest statute comparable to those of Illinois. Accordingly, this Court will analyze the conflicts issues as if the Florida "interest on a judgment statute” were applicable.

      . There are two Illinois statutes governing post-judgment interest. They are Ill.Rev.Stat. ch. 110, § 2-1303, and Ill.Rev.Stat. ch. 110, § 12-109. Ill.Rev.Stat. ch. 110, § 2-1303 awards interest at the rate of 9% per annum. Ill.Rev.Stat. ch. 110, § 12-109 awards interest at the rate of 8% per annum. Although the statutes are in dispute as to the amount of interest to be awarded, the Seventh Circuit has previously determined that a defendant insurer, the wrongdoer, should not be given benefit from his wrongful act, and thus § 2-1303 should control over § 12-109. Merit Insurance Co., 728 F.2d at 945.


author: ELFVIN, District Judge.

text:
    Robert Lee DAVIS, Plaintiff, v. Robert L. WILLIAMS, Sr., Defendant.
    No. CIV-83-964E.
    United States District Court, W.D. New York.
    July 22, 1985.

      Hugh F. Brantley, Rochester, N.Y., for plaintiff.
    Robert L. Williams, Sr., pro se.
   MEMORANDUM AND ORDER

ELFVIN, District Judge.

Plaintiff, a migrant farmworker, has brought this action alleging violations of the Farm Labor Contractor Registration Act (“the FLCRA”), 7 U.S.C. § 2041 et seq., and the Fair Labor Standards Act (“the FLSA”), 29 U.S.C. § 201 et seq. Presently before the Court is plaintiff’s motion for entry of default judgment.

Briefly stated, plaintiff’s claim is as follows. During the summer of 1981 plaintiff, who was seventeen years old and a Florida citizen, was working picking crops in North Carolina. Plaintiff asserts that he was approached by a recruiter for defendant who offered him work in New York picking apples for relatively high pay. Plaintiff was introduced to defendant who allegedly paid the recruiter a $5 fee. Defendant and his assistants drove a bus contáining plaintiff and others to a “migrant labor camp” located in Wyoming County, N.Y., a two-day trip during which plaintiff was required to sleep on the bus. Upon arrival at the camp, plaintiff alleges, he learned that the work did not involve picking apples and did involve the harvesting of potatoes, a substantially less profitable enterprise. The living conditions and toilet facilities at the camp were filthy and no food was provided during plaintiff’s stay (plaintiff said he was ultimately forced to scavange potatoes and cucumbers). Plaintiff alleges that he worked some thirteen hours over three days on potatoes with defendant’s crew at which point he was fired. Although defendant allegedly loaned plaintiff $10 upon arrival at the camp, plaintiff did not receive any other pay for his efforts and had to fend for himself to return home.

Plaintiff seeks statutory damages for thirteen alleged violations by defendant of the FLCRA, to wit: (1) knowingly giving false information concerning the terms, conditions or existence of agricultural employment (7 U.S.C. § 2044(b)(2)); (2) failure to provide requisite written disclosures at time of recruitment (7 U.S.C. § 2045(b)); (3) failure, without justification, to comply with the terms of working arrangements made with a migrant worker (7 U.S.C. § 2044(b)(4)); (4) failure to pay wages when due (7 U.S.C. § 2045(g)); (5) failure upon arrival at the place of employment to post in a conspicuous place a written statement of the terms and conditions of that employment (7 U.S.C. § 2045(c)); (6) failure to post terms and conditions of occupancy of the camp housing facilities (7 U.S.C. § 2045(d)); (7) failure to maintain proper payroll records (7 U.S.C. § 2045(e)); (8) failure to provide plaintiff with a written statement of the amount received by defendant on account of plaintiff’s labor and an itemized statement showing amounts and purposes of deduction therefrom (7 U.S.C. § 2045(e)); (9) engaging an unregistered farm labor contractor employee (7 U.S.C. §§ 2043, 2044(b)(9)); (10) housing migrant workers on property not in compliance with requisite health standards (7 U.S.C. § 2044(b)(12)); (11) failure to exhibit a certificate of registration upon the recruitment of plaintiff (7 U.S.C. § 2044(b)(9)); (12) failure to obtain the authorization required of a person driving a vehicle for the transportation of migrant workers (7 U.S.C. § 2043, 29 C.F.R. § 40.19(b) (1979)); and (13) transporting migrant workers in an unauthorized vehicle (7 U.S.C. §§ 2043, 2044(b)).

Plaintiff has also brought two claims under the FLSA, alleging that defendant failed to maintain proper payroll records and that he intentionally failed to pay plaintiff the required federal minimum wage. Although plaintiff initially sought $88 damages under these two claims, he has since waived those damages as possibly duplicating claims brought under the FLCRA.

Defendant was properly served with the Summons and Complaint in this matter pursuant to Fed.R.Civ.P. rule 4(e) September 15, 1983 by delivery to an adult woman identifying herself as Mrs. Williams at defendant’s Florida address and by subsequent mailing (affidavit of Michael D. Guare filed September 29, 1983). Moreover, defendant was additionally put on notice of this action by substituted service upon the Secretary of the United States Department of Labor which service was permitted by this Court’s Order of December 20, 1983 (see Hugh F. Brantley affidavit of service filed January 20, 1984.) Upon motion by plaintiff, the Clerk of this Court entered defendant’s default March 14, 1984, pursuant to Fed.R.Civ.P. rule 55(a). Plaintiff has now moved for default judgment under Fed.R.Civ.P. rule 55(b)(2).

The entry of default judgment is discretionary. Plaintiff has submitted his own and several affidavits of his attorney in support of the present motion as well as United States Department of Labor records relating to other investigations of defendant — and administrative findings of earlier violations of the FLCRA by defendant, similar to those alleged here — and other exhibits.

The standards governing entry of default judgment as set forth in Thomson v. Wooster, 114 U.S. 104, 5 S.Ct. 788, 29 L.Ed. 105 (1885), are still valid. Such a decree

“is not a decree as of course according to the prayer of the bill, nor merely such as the complainant chooses to take it; but that it is made (or should be made) by the court, according to what is proper to be decreed upon the statements of the bill, assumed to be true.” Id. at 113, 5 S.Ct. at 792.

Accordingly, taking the well pleaded facts in the present case as true — see also Trans World Airlines, Inc. v. Hughes, 449 F.2d 51 (2d Cir.1971), reversed on other grounds, 409 U.S. 363 (1973); Nishimatsu Construction Co., Ltd. v. Houston Nat. Bank, 515 F.2d 1200, 1206 (5th Cir.1975) —, it is clear that plaintiff has amply supported his allegations under the FLCRA and the FLSA. Plaintiff seeks $500 damages for each of the thirteen alleged violations of the FLCRA. Civil relief under the FLCRA is governed by 7 U.S.C. § 2050a. Specifically, § 2050a(b) of the statute provided in relevant part:

“If the court finds that the respondent has intentionally violated any provision of this chapter or any regulation prescribed hereunder, it may award damages, or $500 for each violation, or other equitable relief.”

Plaintiff asserts that the relief sought must be automatically granted once a violation has been established. Cf. Stewart v. James, 519 F.Supp. 315 (E.D.N.Y.1981); DeLeon v. Ramirez, 465 F.Supp. 698 (S.D. N.Y.1979). The language of the statute, however, appears to imply that such award be made in the court’s discretion. It states that the court “may award damages, or $500 for each violation, or other equitable relief.” (My emphasis.) See Alvarez v. Joan of Arc, Inc., 658 F.2d 1217 (7th Cir.1981); Alvarez v. Longboy, 697 F.2d 1333 (9th Cir.1983). Under either approach, the result is the same in this case inasmuch as defendant’s flagrant disregard of the statutory provisions warrants imposition of the entire statutory amount. Although the statute requires that the violations by defendant be intentional, such requirement has been liberally construed — given the remedial purposes of the act — to hold a person liable for the natural consequence of his or her acts, rather than require proof of specific intent or bad faith. See DeLeon v. Ramirez, supra at 705; Castillo v. Givens, 704 F.2d 181, 198 (5th Cir.) cert. denied, sub nom. Givens v. Castillo, 464 U.S. 850, 104 S.Ct. 160, 78 L.Ed.2d 147 (1983). Even without this liberal construction, a finding that defendant intentionally violated the FLCRA is particularly compelled here.

Accordingly, it is hereby ORDERED that plaintiff’s motion for default judgment is granted and that judgment be entered in the amount of $6,500.

      . The FLCRA was superseded April 14, 1983 by the Migrant and Seasonal Agricultural Worker Protection Act ("the MSPA”), 29 U.S.C. § 1801 et seq.

      . Plaintiffs attorney, in a November 29, 1983 affidavit in support of plaintiffs motion to proceed by substituted service, averred that he was informed by the United States Department of Labor that defendant was federally registered as a farm labor contractor for 1983. Both the FLCRA and the MSPA require assent to substituted service on the Secretary as a condition of registration.

      . Now repealed, but see 29 U.S.C. § 1854(c).


text:
    Jennifer A. JONES, Plaintiff, v. BRITT AIRWAYS, INC., Defendant.
    No. 83C4619.
    United States District Court, N.D. Illinois.
    July 24, 1985.
   MEMORANDUM OPINION AND ORDER

ROVNER, District Judge.

Plaintiff Jennifer Jones (“Jones”) filed a complaint against defendant Britt Airways, Inc. (“Britt”), her former employer, for libel and slander as a result of certain statements that were made concerning her dismissal. Jones asserts that several Britt employees made defamatory statements accusing her of embezzling company funds. Jones alleges that, as a direct and proximate result of the defamatory statements made by Britt employees, she has suffered humiliation and embarrassment and has been unable to secure further employment. She seeks special damages for lost wages and an impaired credit rating, as well as general damages for humiliation suffered.

Britt has moved for summary judgment on three grounds. First, it contends that no defamatory statements were published, asserting that a communication by one corporate agent to another does not constitute publication, and any defamatory remarks were made only amongst Britt employees. Second, even if publication occurred, Britt argues that any remarks made were subject to a qualified privilege which can be overcome only by a showing of actual malice. Finally, Britt contends that the remarks allegedly made can be innocently construed and are not actionable.

Jones has also moved for leave to file a first amended complaint which would add a count of negligence against Britt for failure to investigate thoroughly the reasons for her dismissal. Jones contends that Britt assumed a duty to investigate when, in the course of a meeting with Jones concerning the voided ticket that was the subject of her dismissal, Britt employees told her that such an investigation would be undertaken. As a result of its failure to complete the promised investigation, Jones asserts that Britt is liable to her in negligence.

For the reasons stated below, both Britt’s motion for summary judgment and Jones’ motion for leave to amend her complaint are denied.

Facts

When considering a motion for summary judgment, this Court must construe the pleadings, depositions and affidavits most strictly against the moving party and most liberally in favor of the opponent. Trulson v. Trane Co., 738 F.2d 770 (7th Cir.1984). The facts are therefore stated in a light most favorable to the plaintiff.

Pursuant to a routine audit, Robert Murrell (“Murrell”), Comptroller for Britt, initiated an investigation of several suspect tickets issued on March 13, 1983 at the Britt station at O’Hare Airport. The tickets had been marked “void,” indicating that they had not been used and that no money had been received. Other information revealed that the tickets had been issued and actually used by passengers. The investigation began on March 22, 1983, and was conducted by Murrell, by the Director of Stations, Robert Pfrommer (“Pfrommer”), by the Station Director, James Arble (“Arble”), and by the Assistant Station Director, Brian Leahy (“Leahy”). Several Britt employees were questioned concerning the tickets.

On March 24, 1983, Murrell, Pfrommer, Arble, and Leahy met with Jones and questioned her about three tickets issued that morning, all of which were subsequently determined to have been properly voided. During that meeting, Jones initially acknowledged that she might have written the word “void” on another suspect ticket issued on March 13, but later denied the writing. Murrell then placed Jones on suspension pending an investigation, which he allegedly claimed might include polygraph examinations and handwriting analysis. Jones told Murrell she was willing to submit to a polygraph test and expressed her wish to assist Britt in the investigation.

Jones contends that no such investigation was ever conducted and she was never given a polygraph examination. The extent of Britt’s investigation consisted of a phone call made to Sherry Confere, the passenger to whom the March 13 ticket had been issued. Ms. Confere verified that she had used the ticket on March 13, and she executed a statement to Britt to that effect. On April 13,1983, Arble sent Jones a letter stating that she was terminated because the “discrepancies” that had been brought to her attention had been “confirmed.” Arble sent copies of the letter to Murrell and Pfrommer.

Before and after she was terminated, Jones’ attorney requested information concerning both the investigation and Jones’ ultimate termination. He also reasserted Jones’ willingness to assist in the investigation. He received a letter from Marilyn Britt, Assistant to the President, confirming the reasons for Jones’ suspension and termination. The letter stated that her dismissal was based on her conduct at the March 24 meeting, specifically her denial that she had voided the suspect ticket, and on Britt’s determination that the ticket had actually been used by a Britt passenger.

The circumstances surrounding Jones’ suspension and subsequent dismissal were discussed with several low-level Britt employees, including a ticket agent, Denise Farace, and a counter agent, Donna Wit-ten, both of whom were outside the scope of the investigation.

Discussion

Publication is an essential element of a cause of action for libel or slander. The only requirement for publication is that the defamatory statements be communicated to a third person. “There may be publication to any third person. It may be made to ... the defendant’s own agent, employee or officer, even when the defendant is a corporation.” W. Prosser & W. Keeton, Torts § 113 at 798 (5th ed. 1984). Some courts have found no publication to have occurred when a defamatory statement is communicated only within the corporation, see e.g., Prins v. Holland North American Mortgage Co., 107 Wash. 206, 181 P.2d 680 (1919), but these courts apparently confused the issues of publication and privilege. Prosser, id. at 799.

Illinois slander and libel cases rarely concern the issue of publication because communication to any third party satisfies the Illinois publication requirement. Only a qualified privilege can render such statements protected. For example, in Kamberos v. Schuster, 132 Ill.App.2d 392, 270 N.E.2d 182 (1st Dist.1971), an attorney sued her supervisors for defamatory statements made in memoranda and job evaluation reports concerning her conduct on the job. The court found the statements were published but protected by a qualified privilege.

Britt cites only one Illinois case to support its theory that communication between members of a corporation does not constitute publication for the purposes of libel. Britt contends that the court in Welch v. Chicago Tribune Co., 34 Ill.App.3d 1046, 340 N.E.2d 539 (1st Dist.1975), implicitly recognized this theory. In Welch, a memorandum containing defamatory statements about an employee was placed on a bulletin board in a newsroom. The court stated that publication occurred when the bulletin was read by an individual who may or may not have been an employee. “Publication to third persons having no interest in the reasons for which plaintiff was terminated was actionable____” Id. at 1052-53, 340 N.E.2d 539. The court reversed the granting of summary judgment to the defendant, however, because the defendants had not established their qualified privilege defense as a matter of law. Thus, Welch does not support Britt’s argument.

Britt also contends that no publication can occur between agents of the parties to the action. Therefore, when Arble’s secretary transcribed Jones’ termination letter, and when Jones’ attorney received Marilyn Britt’s letter, they were acting as agents to the parties involved and publication could not have taken place. Although publication of Arble’s letter may not have occurred upon dictation to his secretary, Mims v. Metropolitan Life Insurance Co., 200 F.2d 800 (5th Cir.1952), cert. denied, 345 U.S. 940, 73 S.Ct. 831, 97 L.Ed.2d 1366 (1953), it did occur when copies of it were directed to Arble and Pfrommer. When a letter is written in response to an attorney’s inquiry, however, “that letter is the equivalent to a publication to plaintiff himself, and therefore is privileged and is not actionable.” Millsaps v. Bankers Life Co., 35 Ill.App.3d 735, 742, 342 N.E.2d 329 (2nd Dist.1976).

This Court holds that, with the exception of Marilyn Britt’s letter to Jones’ attorney, all of the statements in this case were published for the purposes of establishing that element of libel and slander.

Qualified Privilege

Defendant contends that even if the alleged statements were published, they were protected by a qualified privilege. A party seeking to assert a qualified privilege must satisfy five elements:

1) good faith by the writer, 2) an interest or duty to uphold, 3) a statement limited in scope to that purpose, 4) a proper occasion, and . 5) publication in a proper manner and to proper parties only.

Bond v. Pecaut, 561 F.Supp. 1037, 1039 (N.D.Ill.1983). Whether the qualified privilege is established is an issue of fact. Welch v. Chicago Tribune Co., 34 Ill.App.3d 1046, 1051, 340 N.E.2d 539 (1st Dist.1975).

An employer unquestionably has an interest in investigating suspicious conduct by employees within his company. In Fascian v. Bratz, 96 Ill.App.3d 367, 51 Ill.Dec. 901, 421 N.E.2d 409 (3rd Dist.1981), management personnel of a Kroger grocery store investigated the disappearance of money order funds. They suspected the involvement of the defendant. Even though a full police investigation later cleared the employee, the court upheld the employer’s actions. “Kroger had an undeniable interest in determining the source of the theft and who did it.” Id. at 369, 51 Ill.Dec. 901, 421 N.E.2d 409. Under similar circumstances here, Britt clearly had an interest in determining the circumstances surrounding the improper issuance of tickets and appropriation of company funds, and the March 24 meeting was a “proper occasion” to determine the facts.

An issue of fact regarding the qualified privilege is raised, however, concerning the scope of the Britt investigation. Jones contends that extensive publication of the defamatory statement occurred among several levels of Britt employees, ranging from the assistant to the President to a ticket agent. She claims that such publication is not made in an “appropriate manner and to the appropriate parties.” In Fascian v. Bratz, supra, the court upheld the theft investigation because “all inquiries with respect thereto were conducted by Kroger’s management employees behind closed doors.” By confining the scope of the investigation, the qualified privilege was protected. Similarly, in Ashe v. Hatfield, 13 Ill.App.3d 214, 300 N.E.2d 545, (1st Dist.1973), a derogatory memorandum about the plaintiff’s job performance was conditionally privileged because publication was limited to other management personnel. Because the depositions submitted by both parties in this case are in conflict as to who discussed Jones’ dismissal and termination, a material issue of fact exists which precludes summary judgment. When construed in a light most favorable to Jones, it appears that defamatory statements were not confined solely to discussion among management personnel.

Even if Britt can establish her entitlement to a qualified privilege, the privilege may be overcome by a showing of actual malice on the part of the defendant. Colson v. Stieg, 89 Ill.2d 205, 60 Ill.Dec. 449, 433 N.Ed.2d 246 (1982). Actual malice is defined as publication of a defamatory statement “with knowledge that it was false or with reckless disregard of whether it was false or not.” Fopay v. Noveroske, 31 Ill.App.3d 182, 189, 334 N.E.2d 79 (5th Dist.1975). The plaintiff must prove the issue of malice by “clear and convincing evidence.” Id. at 190, 334 N.E.2d 79.

Jones asserts that Britt’s bad faith, or its reckless disregard for the truth, is demonstrated by Murrell’s failure to investigate the incident. Murrell’s alleged investigation was to include a polygraph test and a handwriting analysis, neither took place. A failure to investigate is not in itself evidence of bad faith. Troman v. Wood, 62 Ill.2d 184, 340 N.E.2d 292 (1975). Nonetheless, there must be some justification for the failure to investigate. Fopay v. Noveroske, 31 Ill.App.3d 182, 334 N.E.2d 79 (5th Dist.1975). To prove malice based on reckless disregard for the truth, there must be “sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” St. Amant v. Thompson, 390 U.S. 727, at 731, 88 S.Ct. 1323, at 1325, 20 L.Ed.2d 262 (1968).

There is sufficient evidence in the record to indicate that Britt personnel may have entertained doubts about Jones’ guilt. Murrell himself admitted that he had doubts as to who had written the “void” on the ticket at issue and admitted that his only basis for accusing the plaintiff of having done so was the purported similarity in writing. He conceded, however, that the writing was also similar to that of another suspected employee and conceded that he was no handwriting expert. He did nothing to determine who in fact was guilty, despite his promises to the contrary, and accused the plaintiff despite the fact that another supervisor admitted to having improperly voided six tickets and keeping the cash just one hour before the plaintiff was questioned. Finally, according to plaintiff, the defamatory accusations against her were repeated and disseminated extensively amongst various Britt employees, after-wards further evidencing Britt’s bad faith or reckless disregard of the truth. Because these circumstances indicate that there is a factual issue as to the existence of malice, Britt’s motion for summary judgment cannot be granted. Welch v. Chicago Tribune Co., 34 Ill.App.3d 1046, 1052, 340 N.E.2d 539 (1st Dist.1975).

Innocent Construction

Britt also contends that any libelous or slanderous statements made are not actionable because they are subject to the Illinois innocent construction rule. The innocent construction rule, as applied in Chapski v. Copley Press, 92 Ill.2d 344, 65 Ill.Dec. 884, 442 N.E.2d 195 (1982), is defined as follows:

... a written or oral statement is to be considered in context, with the words and the implications therefrom given their natural and obvious meaning; if, as so construed, the statement may ... reasonably be interpreted as refering to someone other than the plaintiff, it cannot be actionable per se. This preliminary determination is properly a question of law to be resolved ... in the first instance; whether the publication was in fact understood to be defamatory or to refer to the plaintiff is a question for the jury should the initial determination be resolved in favor of the plaintiff.

Chapski v. Copley Press, 92 Ill.2d at 352, 65 Ill.Dec. 884, 442 N.E.2d 195.

Illinois courts have been liberal in applying the innocent construction rule. The writings or statements must be read as a whole and given their obvious meaning. In Ashe v. Hatfield, 13 Ill.App.3d 214, 300 N.E.2d 545 (1st Dist.1973), a memorandum which bore on the plaintiff's capacity to do his job was construed innocently. The language used by Arble in his April 13 letter to Jones informing her of her dismissal is similar in many respects and may therefore be subject to innocent construction. Murrell, however, testified that he interpreted the “discrepancies” that Arble claimed were “confirmed” to mean that Jones had improperly voided the March 13 ticket and had taken the cash. Such a construction by a key member of Britt’s staff makes innocent construction of Britt’s letter impossible. As the letter can not be interpreted to refer to anyone other than Jones, the Chapski guidelines make this an issue of fact to be determined by a jury.

When reviewing the occasions in which Britt employees discussed the alleged improper voiding of tickets and Jones’ involvement, there are several instances where innocent construction is not possible. For instance, Jones claims that Murrell stated to several other members of Britt management that she “stole money” from the cash drawer and that a fellow ticket agent heard that she had been discharged for stealing money. These statements infer criminal activity by Jones and can not be construed to infer that she was merely drawing her salary in advance, as Britt suggests by citing Conrad v. Logan, 4 Ill.App.3d 981, 283 N.E.2d 54 (1st Dist.1972). Accordingly, Britt’s motion for summary judgment is denied.

Motion by Jones for Leave to Amend

Jones has moved for leave to amend her complaint to add a count of negligence for Britt’s failure to investigate the circumstances surrounding her dismissal. Fed.R.Civ.P. 15(a) provides that “leave to amend should be freely given” when the interests of justice so dictate. Although this rule has always been liberally applied, Britt asserts that leave should not be granted to Jones to amend on two grounds: first, that the motion is not timely; and second, that the motion is not justified by the existing law. Although the Court agrees that Jones’ motion for leave to amend could have been brought earlier, it denies the motion not for that reason but because the added Count does not state a claim for relief under Illinois law.

Jones claims that Illinois law recognizes a tort action for Murrell’s negligence in failing to follow through on the alleged investigation, even though that investigation was gratuitously undertaken. Illinois recognizes no such action in the area of employment.

Illinois has adhered strictly to the doctrine of employment at will, which permits an employer to discharge an employee for good reason, bad reason, or no reason at all. Sargent v. Illinois Institute of Technology, 78 Ill.App.3d 117, 33 Ill.Dec. 937, 397 N.E.2d 443 (1st Dist.1979). Illinois courts have been loathe to erode this doctrine, and have done so only where public policy so dictates, such as when the employer discharges an employee in retaliation for exercising rights under the Workmen’s Compensation Act. Kelsay v. Motorola, 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353 (1978). Illinois has also permitted actions to lie in contract where an express employment contract is involved. Sargent v. Illinois Institute of Technology, 78 Ill.App.3d 117, 33 Ill.Dec. 937, 397 N.E.2d 443 (1st Dist.1979). All of the cases cited by Jones are inapposite, and Jones has cited no Illinois case on point. Illinois law recognizes no duty of an employer to investigate circumstances surrounding the dismissal of his employees, even when that investigation is gratuitously undertaken for the benefit of the employee. Accordingly, Jones’ motion for leave to amend is denied because amending the complaint to add a count which would be dismissed for failure to state a claim would be futile.

Conclusion

Britt’s motion for summary judgment is denied, and Jones’ motion for leave to amend her complaint to add a count in negligence is denied.

      . In Fascian, the court upheld the privilege even though the Kroger investigation persisted for two months.


text:
    Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Plaintiff, v. INTERNATIONAL ASSOCIATION OF MACHINISTS, LOCAL LODGE 851, Defendant.
    No. 84 C 5299.
    United States District Court, N.D. Illinois, E.D.
    July 25, 1985.
   MEMORANDUM OPINION AND ORDER

ROVNER, District Judge.

This matter is before the Court on the parties’ cross-motions for summary judgment. The plaintiff Secretary of Labor (“the Secretary”) instituted this action against defendant International Association of Machinists, Local Lodge 851 seeking to void an election held on December 19, 1983 because of an alleged violation of Section 401(e) of the Labor Management Reporting and Disclosure Act, 29 U.S.C. § 401, et seq. (“LMRDA”). The Secretary contends that the defendant’s chosen method of notifying its members of the nominations for its December 18, 1983 election of officers denied them a reasonable opportunity for the nominations of candidates in violation of Section 401(e) of the Act, 29 U.S.C. § 481(e), and that the violations “may have affected the outcome” of that election, 29 U.S.C. § 482(c), requiring that its results be set aside. The material facts are not in dispute.

Facts

Defendant Local 851 is the exclusive bargaining representative of certain employees employed at Caterpillar Tractor Company in Joliet, Illinois (“Caterpillar”). Local 851's membership consists only of employees employed at Caterpillar.

On December 18, 1983 Local 851 conducted an election of officers in accordance with the International Association of Machinists & Aerospace Workers constitution (“constitution”) and the bylaws of Local 851. Under its bylaws, Local 851 was to nominate officers at its regularly scheduled membership meeting on November 20, 1983. On October 13, 1983, notices of the November 20, 1983 membership meeting, which contained the notice of the nominations, were posted at Local 851’s union hall and on 21 bulletin boards at the manufacturing facilities of Caterpillar. Local 851 chose to notify its members of the nominations meeting solely by this means.

In October 1983, Local 851 was comprised of 4750 members of which 2691 were on lay off status. The total membership and number of members on lay off status were not significantly different in September 1983 and remained essentially constant through November 1983. To maintain their union membership in good standing, laid off members were absolved by the constitution from paying the regular monthly dues but were required instead to pay only $.50 per month. To do so, they could either appear each month at Local 851’s union hall and pay personally, or they could arrange to have their $.50 monthly dues deducted from their last regular dues check tendered to Local 851 during the last month of their employment, thereby eliminating the necessity of a personal appearance. In October 1983, 2501 of defendant’s 2691 laid off members had chosen the second option and therefore were not required to appear at defendant’s union hall to pay their $.50 monthly dues to maintain their good standing. Thus, more than half of Local 851’s members were on lay off throughout the period of the posting and were not required to appear during the posting at either the defendant’s union hall or at the Caterpillar facilities, the two locations chosen for posting.

The November 20, 1983 meeting was attended by 198 members of Local 851, the largest number of members in good standing for the previous five Local 851 nomination meetings. Twenty-five percent of the members present were on lay off status. Forty-six individuals were nominated to run for office. On December 18, 1983 the elections were held, and 1,995 total ballots were cast. The following Local 851 members were elected to office: Dick Hileman, President; Andy Vollner, Vice President; Robert Stonich, Recording Secretary; and Carmen DeNardis, Secretary-Treasurer.

On January 9, 1984 Local 851 member and candidate for Secretary-Treasurer, John Sheridan, protested the results of the December 18, 1983 election of officers. Sheridan alleged, inter alia, that Local 851 failed “to send notice of nomination to all members in good standing” in violation of the Constitution and the LMRDA. Not having obtained a final decision with respect to his election protest within 3 calendar months of the filing of his protest, John Sheridan, by letter dated April 21, 1984, filed a timely election complaint with the Secretary. This lawsuit followed when the Secretary filed his complaint in this Court on July 16, 1984.

Discussion

To establish a violation of the LMRDA requiring the nullification of a union election, the Secretary must show: 1) that the union’s conduct constitutes a statutory violation; and 2) that the violation “may have affected the outcome of the election.” If the Secretary establishes the statutory violation, then a prima facie case is established that the violation may have affected the outcome of the election, and the burden falls on the defendant to prove that the violation did not affect the election results. Wirtz v. Hotel, Motel and Club Employees Union, Local 6, 391 U.S. 492, 88 S.Ct. 1743, 20 L.Ed.2d 763 (1968).

This Court is satisfied that the Secretary has established a statutory violation of the LMRDA in the notice of nominations provided by Local 851 here. The parties do not dispute that Section 401(e) and its interpretive regulations require that the union provide reasonable notice to its members of the meeting at which nominations are to take place. Local 851 argues that its notice was reasonable in two respects.

First, Local 851 contends that even aside from its posting of notices of nominations at its union hall and at Caterpillar, its own bylaws and constitution provide notice to each member. This argument is without merit for several reasons. The LMRDA reflects a congressional policy that all union elections be fair, orderly, free of any appearance of impropriety, and aimed at maximum participation of union members. As such, it does not permit a union to discharge its obligation to provide notice of its nominations meeting by setting forth all necessary notice information within the union’s bylaws and constitution. More importantly, the various provisions for the meeting in the bylaws and constitution of this ease do not provide the information that a member would need to attend and participate in the nominations meeting because, even though it is possible after some effort at piecing together and construing the various provisions to arrive at the date of the nominations meeting (November 20, 1983), there is no way that even an exceptionally diligent union member can arrive at the time and the place for the meeting. Accordingly, notice from the bylaws and constitution is inadequate.

Second, Local 851 contends that the circumstances of this case prove that notice of the nominations meeting was reasonable. Local 851 argues that during the period from October 18, 1983 to November 20, 1983 (during which notices of the nominations meeting were posted at the union hall and at 21 Caterpillar locations), 167 laid off union members appeared in person at the union hall to pay their $.50 monthly dues, and in addition “numerous” laid off members appeared to accomplish a variety of other tasks. But Section 452.56(a) of the Interpretive Regulations, 29 C.F.R. § 452.56(a), requires that a nominations notice at a minimum be “reasonably calculated to inform all members” of the meeting, and Local 851 cannot claim and does not claim that all of its laid off members appeared at its union hall during the relevant period or that it reasonably could have anticipated the appearance of all of its members.

Finally, other courts have held that a violation of the reasonable notice provisions of the LMRDA occurred under circumstances less compelling than here. See, e.g., Wirtz, supra (Supreme Court found violation of Section 401(e) because 382 members of the union’s total membership of 2700 were not mailed copies of the newspaper containing notice of nominations and elections); Marshall v. Office and Professional Employees Union Local 2, 505 F.Supp. 121 (D.D.C.1981) (court found violation where union failed to post notice at two employer locations). Indeed, defendants have conceded in their responsive brief in opposition to the motion for summary judgment that “plaintiff’s burden requires only that he prove the existence of one member who did not receive reasonable notification of the nominations meeting, and that defendant’s failure to provide that one member with proper notice may have affected the outcome of the election.” (Defendant’s Responsive Brief at 2-3, citing Wirtz, supra.) In light of the fact that at least half of Local 851’s members — those who were laid off and who did not appear where notice was posted — may not have received actual or constructive notice of the November 20, 1983 nominations meeting, this Court holds that the method of notification here was not reasonable as a matter of law.

Having decided that Local 851’s notice of nominations was not reasonable and thus constituted a violation of Section 401(e) of the Act, this Court must decide whether the violation “may have affected the outcome of the election.” This question is more troubling because the Secretary has admitted that he is unable to identify a single member who wished to nominate a candidate for office, but did not, or who wished to be nominated as a candidate for office, but was not, because he did not receive notice of Local 851’s nominations meeting. Moreover, the individual who protested the results of the elections and who filed a complaint with the Secretary, John Sheridan, did receive notice and was nominated for the position of Secretary-Treasurer. Thus, it appears that his only real complaint is that he lost.

Defendant argues that because its nominations meeting was attended by a larger number of members than were present for the previous five meetings, because 46 candidates were nominated, and because 25% of those present were on lay off status, the outcome of the election could not have been affected because the court can infer that all those who wanted to attend the nominations meeting and nominate a candidate did so. As the Secretary points out, however, it is at least just as likely that, because of the drastic number of lay offs occurring at the time, those who received notice attended and nominated candidates because of their job security worries. Those who did not receive notice would have attended precisely out of the same concerns. Moreover, the 49 members on lay off status who did attend constituted less than nineteen thousandths (or .19%) of the 2609 members then on lay off status.

Finally, defendant attempts to rebut the Secretary’s prima facie case by arguing that its failure to provide notice could not have affected the elections because those members who were on lay off status for more than six months were ineligible to be nominated for office under Local 851’s constitution as they had not been “working at the trade” for over six months as required and because it was not necessary for laid off members to attend the nominations meeting to nominate other candidates since Local 851’s nomination procedures allowed self-nomination. Neither argument is persuasive. The nomination provisions of Local 851’s constitution and bylaws contain no procedure allowing the self-nomination of candidates. The constitution further specifically excludes laid off members from the candidacy eligibility requirement of “working at the trade” as is proper and consistent with the prohibition in the Interpretive Regulations, 29 C.F.R. § 452.41, against forfeiting of a union member's “membership in [a] union or any of the attendant rights of membership merely because he is discharged or laid off.” Even if that were not the case, however, it is certainly conceivable that a laid off member who did not attend the nominations meeting because he did not receive notice may have wanted to nominate a member who was not laid off and did not do so simply because he did not know of the time and place of the nominations meeting.

Wirtz, supra, places the burden on the defendant union to show by a preponderance of the evidence that a violation of the LMRDA did not affect the outcome of a challenged election. As stated by the court in Usery v. International Organization of Masters and Pilots, 92 LRRM 2274, 2278 (S.D.N.Y.1976), aff'd and modified on other grounds, Usery v. International Organization of Masters, Mates & Pilots, 538 F.2d 946 (2d Cir.1976), under the Wirtz rule:

[Ojnce a Section 481 violation has been demonstrated, a very substantial burden falls upon a defendant union. It must show by a preponderance of the evidence that the particular violation did not affect the outcome of the election. Until it does so, the presumption remains that such violation might have had an effect on the results, and this presumption of mere possible influence suffices to warrant a new supervised election.

In Wirtz, the Supreme Court reversed the Second Circuit’s decision that the application of an invalid candidacy eligibility bylaw did not affect the defendant union’s election results. Finding that no “tangible evidence” was offered in rebuttal “against the reasonable possibility that the wholesale exclusion of candidates did affect the outcome,” the Supreme Court recognized that the nature and scope of the election violation at issue ultimately made adequate rebuttal evidence unobtainable because, as explained by the Court, it was simply “impossible to know that the election would not have attracted many more candidates but for the by-law.” Wirtz, 391 U.S. at 508, 88 S.Ct. at 1752. Here too, it may be “impossible” for the defendant union to present adequate rebuttal evidence negating the presumption that the statutory violation “may have affected the outcome of the election,” but that is the risk that Local 851 incurred when it did not provide for reasonable notice of the nominations meeting to half its membership, and that is the risk that Congress guarded against when it adopted the “may have affected” language in Section 402(c) of the LMRDA. This Court holds that the statutory violation here may have affected the outcome of the December 18,1983 elections, requiring that they be nullified.

Conclusion

Defendant Local 851’s motion for summary judgment is denied. The Secretary’s motion for summary judgment is granted. The December 18, 1983 elections for all offices are null and void, and the defendant is hereby ordered to conduct immediately new elections for those offices under the supervision of the Secretary pursuant to the terms of the LMRDA. It is so ordered.

APPENDIX A

Section 401(e) of the Act, 29 U.S.C. § 481(e), provides in pertinent part:

In any election required by this section which is to be held by secret ballot a reasonable opportunity shall be given for the nomination of candidates____

Section 452.55 of the Interpretative Regulations, 29 C.F.R. § 452.55, provides:

In elections subject to the provisions of Title IV a reasonable opportunity must be afforded for the nomination of candidates. Although the Act does not prescribe particular forms of nomination procedures, it does require that the procedures employed be reasonable and that they conform to the provisions of the labor organization’s constitution and bylaws insofar as they are not inconsistent with the provisions of Title VI.

Section 452.56(a) of the Interpretative Regulations, 29 C.F.R. § 452.56(a), provides in pertinent part:

(a) To meet (the statutory requirement of reasonable opportunity ... for the nomination of candidates”) the labor organization must give timely notice reasonably calculated to inform all members of the offices to be filled in the election as well as the time, place, and form for submitting nominations____ In an election which is to be held by secret ballot ... notice of nominations may be given in any manner reasonably calculated to reach all members to nominate the candidates of their choice, so long as it is in accordance with the provisions of the labor organization’s constitution or bylaws ____ Posting of a nomination notice may satisfy the requirement of a reasonable opportunity for making nominations if such posting is reasonably calculated to inform all members in good standing in sufficient time to permit such members to nominate the candidates of their choice.

APPENDIX B

Section 402(c) of the Act, 29 U.S.C. § 482(c), provides in pertinent part:

(c) If, upon a preponderance of the evidence after a trial upon the merits, the court finds—
(1) that an election has not been held within the time prescribed by section 401, or
(2) that the violation of section 401 may have affected the outcome of an election, the court shall declare the election, if any, to be void and direct the conduct of a new election under supervision of the Secretary and, so far as lawful and practicable, in conformity with the constitution and bylaws of the labor organization. The Secretary shall promptly certify to the court the names of the persons elected, and the court shall thereupon enter a decree declaring such persons to be the officers of the labor organization____

      . See Appendix A.

      . See Appendix B.