author: MURRAY M. SCHWARTZ, District Judge.

text:
    Chalmers EDWARDS, Plaintiff, v. LUTHERAN SENIOR SERVICES OF DOVER, INC., a Delaware corporation, and Raymond C. Best, individually and in his official capacity as President of Lutheran Senior Services of Dover, Inc., Defendants.
    Civ. A. No. 83-356 MMS.
    United States District Court, D. Delaware.
    Feb. 21, 1985.

      Harold Schmittinger, and William D. Fletcher, Jr., Schmittinger & Rodriguez, P.A., Dover, Del., for plaintiff.
    F. Alton Tybout, and Anne L. Naczi, Tybout, Redfearn, Casarino & Pell, Wilmington, Del., Peter S. Feliceangeli, Twilley, Jones & Feliceangeli, Dover, Del., for defendants.
   MURRAY M. SCHWARTZ, District Judge.

In June, 1981, plaintiff Chalmers A. Edwards was fired from his job as Executive Director of Luther Towers, a low and moderate income housing development. Edwards then instituted this action for reinstatement and damages under 42 U.S.C. § 1983 against Lutheran Senior Services of Dover, Inc. (“LSS”), which owns and operates Luther Towers, and Reverend Raymond C. Best, the president of LSS. Edwards claims that his dismissal deprived him of property and liberty without due process in violation of the Fourteenth Amendment. He also asserts pendent state law claims for breach of contract and defamation.

Defendants assert that a prerequisite to Edwards’ section 1983 claim is that defendants acted “under color of” state law when they fired him, because section 1983 only remedies wrongs that are fairly attributable to the state. Defendants have moved for summary judgment on this claim, alleging, inter alia, that section 1983 does not apply to them because their actions are not state actions. Because the determination of state action requires “sifting facts and weighing circumstances,” Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 860, 6 L.Ed.2d 45 (1961), the material facts are set forth in detail below.

I. Background

The relevant facts are either undisputed or, if disputed, are set forth as alleged by the plaintiff, the party against whom summary judgment is sought. The Delaware legislature has declared the provision of decent housing affordable by low and moderate income people to be a public purpose and has authorized the Delaware State Housing Authority (“DSHA”) to issue bonds to finance an increase in the supply of this housing. 31 Del.C. §§ 4068, 4053. To carry out this purpose, DSHA provides funds to “housing sponsors,” which are individuals or entities that DSHA determines to be qualified to “own, construct, acquire, rehabilitate, operate, manage or maintain a housing development,” subject to DSHA regulation. 31 Del.C. § 4069(9). Defendant LSS was incorporated as a nonprofit Delaware corporation in June, 1979, for the purpose of providing housing for low and moderate income persons. DSHA designated LSS to be a housing sponsor and, on December 18, 1979, approved a thirty-year mortgage loan of $5,558,245 to LSS to construct Luther Towers. LSS used this money, along with ten thousand dollars of its own money, to acquire land and build the development. LSS is expected to obtain funds to repay the construction loan and cover operating expenses from the rents it receives from tenants and from “section 8” payments from the United States Department of Housing and Urban Development (“HUD”). These section 8 payments are channeled to LSS through DSHA, which acts as agent for HUD.

As a condition of the loan, DSHA required LSS to agree to the extensive restrictions embodied in the Mortgage Agreement, Regulatory Agreement and Building Loan Agreement, all executed contemporaneously by DSHA and LSS on December 18, 1979, and in the Management Agreement. The agreements allow DSHA extensive oversight of the operation and management of Luther Towers. DSHA approval is required for all plans and drawings for Luther Towers, for the form of the leases used by LSS, and for the rental rates for all residential units. Tenants for the residential units must be selected in accordance with guidelines specified by DSHA. The agreements also require LSS to seek section 8 housing payments and to take all necessary steps to insure that the payments continue. LSS is required to submit its operating budget each year for approval by DSHA, and to make all books and documents available for a proper audit at any time. Further, LSS must submit a financial statement each year that is prepared by a DSHA-approved accountant.

DSHA’s supervisory authority over personnel matters is less extensive than its authority over financial matters. Although DSHA established a minimum number of employees of Luther Towers, including an Executive Director, and specified their salaries, the Management Agreement specifically reserves for LSS the power to “hire, pay, supervise, and discharge all managerial and non-managerial personnel.” D.I. 38A, Item 5, § 601. LSS is not required to consult with DSHA before making personnel changes.

DSHA does have potentially greater supervisory powers over the development if LSS violates any provision of the Regulatory Agreement, or if DSHA “deems itself to be insecure with respect to the Mortgage Loan” because of an LSS violation of any agreement with DSHA, 31 Del.C. Chapter 40, or any DSHA rules and regulations promulgated under that statute. D.I. 38A, Item 2, at 20-21, 24-25. If the violation is not corrected to DSHA’s satisfaction within thirty days, DSHA may remove any or all of the officers or directors of LSS and appoint others. DSHA appointees would then serve until the violation is corrected or until DSHA is assured that similar violations will not recur. However, DSHA has never attempted to appoint or remove any officers or directors of LSS, and no DSHA representatives have served on the LSS Board of Directors.

Plaintiffs association with LSS began when he was hired as Executive Director by the LSS Board in December, 1980, shortly after Luther Towers opened. Defendants soon became dissatisfied with plaintiffs performance of his duties, and the Board established a personnel committee in May, 1981, which discussed and evaluated plaintiffs job performance without his knowledge or presence. On June 16, 1981, the committee decided that plaintiff should be fired. Before the full Board met, however, Reverend Best notified DSHA that Edwards would be fired. On June 23, 1981, the Board accepted the personnel committee’s recommendation, then called plaintiff in and fired him. Two months after the firing, the Board gave plaintiff a post-termination hearing and reaffirmed its decision to dismiss plaintiff. Thereafter, plaintiff brought this action under 42 U.S.C. § 1983 and state law, contending, inter alia, that he was terminated without due process in violation of the Fourteenth Amendment.

II. State Action Analysis

Defendants contend that plaintiff’s 42 U.S.C. § 1983 claim is not viable because the firing did not involve state action. The Fourteenth Amendment only prohibits deprivations of property or liberty caused by state action. Section 1983, which allows private persons to enforce their constitutional rights, only provides a right of action if the defendant was acting under color of state law. Since LSS is a private corporation, a threshold question is whether its actions in dismissing plaintiff can be considered the actions of the state.

The requirement of section 1983 that an action be under color of state law has been interpreted as identical to the state action requirement of the Fourteenth Amendment. Lugar v. Edmondson Oil Co., 457 U.S. 922, 929, 102 S.Ct. 2744, 2750, 73 L.Ed.2d 482 (1982); Krynicky v. University of Pittsburgh, 742 F.2d 94, 97 (3d Cir. 1984), petition for cert. filed, 53 U.S.L.W. 3530 (U.S. Jan. 22, 1985) (No. 84-1017). In general, the state action doctrine requires that the conduct of the defendants be fairly attributable to the state. Lugar, 457 U.S. at 937, 102 S.Ct. at 2754. However, no single standard has evolved for determining what level of state involvement in an activity is sufficient to require a finding of state action. Instead, the Supreme Court has applied a variety of state action tests while cautioning the lower courts to investigate carefully the facts and circumstances of each case. See Krynicky, 742 F.2d at 97-98; Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 860, 6 L.Ed.2d 45 (1961).

Two of the tests for state action are relevant in this case — the “nexus” test of Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974), and the “symbiotic relationship” test of Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). The nexus test requires a showing that the private entity is pervasively regulated by the state and that “ ‘there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.’ The purpose of this requirement is to assure that constitutional standards are invoked only when it can be said that the State is responsible for the specific conduct of which the plaintiff complains.” Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 2786, 73 L.Ed.2d 534 (1982) (citation omitted) (quoting Jackson, 419 U.S. at 351, 95 S.Ct. at 453).

In order to find state action based on the nexus test, the Court would have to find a sufficient connection between the state and the challenged action — the decision to fire plaintiff. However, DSHA’s involvement in plaintiff’s firing was minimal. DSHA officials do not review LSS hiring or firing decisions, do not set standards of competency for employees, and did not participate in any of the meetings which led to plaintiff’s discharge. Nonetheless, plaintiff points to two possible connections between the state and the firing decision.

First, plaintiff states that DSHA officials were apparently upset when LSS accepted the resignation of plaintiff’s predecessor and hired plaintiff without first notifying DSHA. As a result, Reverend Best informed DSHA after the personnel committee decided to recommend discharging plaintiff but before the meeting of the full Board. Plaintiff contends that Reverend Best felt compelled to consult with DSHA before making personnel changes. At most, however, the evidence cited by plaintiff shows that DSHA officials required LSS to notify them of personnel changes, not that DSHA was in any way involved in personnel decisions. Both Reverend Best and DSHA officials stated that DSHA was notified only as a courtesy and that DSHA expressed neither approval nor disapproval of the firing of Edwards. Mere notification given to the state of a decision made by a private party, without more, is inadequate to show a nexus between the state and the decision. See Blum v. Yaretsky, 457 U.S. at 1010, 102 S.Ct. at 2789; Rendell-Baker v. Kohn, 457 U.S. 830, 838 n. 6,102 S.Ct. 2764, 2770 n. 6, 73 L.Ed.2d 418 (1982). Moreover, nothing in the agreements requires LSS to consult with DSHA before making personnel changes or authorizes DSHA to demand such consultation. The lack of such authorization militates against a finding of state action. See Rendell-Baker v. Kohn, 457 U.S. at 838 n. 6, 102 S.Ct. at 2770 n. 6; 641 F.2d 14, 27-89 (1st Cir.1981).

Plaintiff also cites the provisions of the agreements which allow DSHA to remove officers or directors of LSS if LSS violates the agreements or the state’s rules and regulations. However, DSHA’s power to make personnel changes is contingent and does not exist until LSS commits a violation. More importantly, there is no evidence that DSHA has ever used this power or that it was used in this instance. The existence of potential, unexercised power is insufficient to demonstrate a nexus between the state and the firing decision. Cf. Rendell-Baker v. Kohn, 641 F.2d 14, 24-25 (1st Cir.1981) (latent power of state to control private school by cutting off funding is inadequate to support a finding of state action under the symbiotic relationship test), aff’d, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982). Thus, there is no evidence that the state was responsible for the decision to fire Edwards, and the nexus test for state action is not satisfied.

Plaintiff’s primary contention is that a “symbiotic relationship” exists between the state and DSHA. In Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961), the Supreme Court found that the action of a private entity was state action when “[t]he State ha[d] so far insinuated itself into a position of interdependence with [the private party] that it must be recognized as a joint participant in the challenged activity.” Id. at 725, 81 S.Ct. at 862. Defendants contend, however, that the symbiotic relationship test established in Burton has been severely circumscribed by the Supreme Court’s subsequent decisions in Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982), and Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982). This contention warrants a review of the facts of Burton and subsequent cases in order to determine the scope of the symbiotic relationship test.

In Burton, a black man challenged the discriminatory actions of the Eagle Coffee Shoppe, a privately owned restaurant which leased space in a parking facility owned and operated by the state. The Supreme Court found that the restaurant’s location conferred on the state and the restaurant a variety of mutual benefits— for example, diners were afforded a convenient place to park, which may have increased the demand for the state’s parking facilities. Furthermore, the restaurant maintained that it would lose business if it had to serve blacks, which meant that “profits earned by discrimination ... are indispensable elements in ... the financial success of a governmental agency.” 365 U.S. at 724, 81 S.Ct. at 861. Noting that its holding was dependent upon the particular facts before it, the Court held that state action existed. Id. at 726, 81 S.Ct. at 862.

The more recent Supreme Court decisions neither overrule Burton nor limit Burton to its facts, see Krynicky, 742 F.2d at 99-101, but they do provide further guidance as to what facts amount to state action. In Rendell-Baker, staff members who had been discharged by the New Perspectives School brought suit under section 1983. New Perspectives School was a private, nonprofit institution which specialized in dealing with students who had difficulty completing public high school and which received nearly all of its students by. referrals from city and state agencies. These referrals were made pursuant to a Massachusetts statute which required school committees to identify students with special needs and develop suitable educational programs for them in either private or public schools. New Perspectives School also received well over 90% of its funding from government sources and was subject to “detailed regulations concerning matters ranging from record-keeping to student-teacher ratios.” 457 U.S. at 833, 102 S.Ct. at 2767. The state also required the school to maintain written job descriptions and written statements describing personnel standards and procedures.

Plaintiff Rendell-Baker had been hired under a federal grant distributed through the State Committee on Criminal Justice. As a condition of the grant, this committee had to approve the eventual hiring decision, although its review was limited to determining that the hiree had the requisite qualifications. When Rendell-Baker was fired, she complained to the committee, which demanded that the school provide a written explanation of the discharge. When the school complied, the committee notified the school that it was satisfied with the explanation.

The Court held that these facts were insufficient to support a finding of state action. The Court distinguished Burton on the grounds that the restaurant in Burton was located on public property and the state benefited financially from the restaurant’s discriminatory practices. In Rendell-Baker, by contrast, because the school was located on private land, and “the school’s fiscal relationship with the State [was] not different from that of many contractors performing services for the government,” no symbiotic relationship existed. Rendell-Baker, 457 U.S. at 843, 102 S.Ct. at 2772.

In Blum v. Yaretsky, decided on the same day as Rendell-Baker, Medicaid patients challenged under the due process clause decisions to transfer them from a high-care facility to a low-care facility. The transfer decisions were made by physicians and administrators employed by private nursing homes. However, the state required the nursing homes to fill out patient care assessment forms in making decisions to transfer patients. The state also subsidized the operating and capital costs of the nursing homes, licensed the homes, and paid the medical expenses of more than 90% of the patients. The Supreme Court found that these facts did not satisfy the symbiotic relationship test:

[P]rivately owned enterprises providing services that the State would not necessarily provide, even though they are extensively regulated, do not fall within the ambit of Burton. That programs undertaken by the State result in substantial funding of the activities of a private entity is no more persuasive than the fact of regulation of such an entity in demonstrating that the State is responsible for decisions made by the entity in the course of its business.

Id. at 1011,102 S.Ct. at 2789 (citation omitted).

The Third Circuit Court of Appeals recently applied the Burton symbiotic relationship test, as modified by Rendell-Baker and Blum, to find that a state-supported university was a state actor. In Krynicky v. University of Pittsburgh, 742 F.2d 94 (3d Cir.1984), petition for cert. filed, 53 U.S.L.W. 3530 (U.S. Jan. 22, 1985) (No. 84-1017), an assistant professor at the University of Pittsburgh who had been denied tenure brought suit against the university under section 1983, alleging denial of due process. Defendants contended that Rendell-Baker and Blum limited the symbiotic relationship test to situations in which the state benefits financially from the activities of the defendant. The Third Circuit noted that the Supreme Court in Rendell-Baker and Blum had focused on the financial relationship between the defendant and the state, but found that this “was because the financial relationship was the only significant form of state influence over the defendants in those cases.” Krynicky, 742 F.2d at 101. The court interpreted Burton as emphasizing “the complete intermingling of state and private actions” and found that the restaurant’s location on public property was “at least as important as the financial relationship” to the finding of state action. 742 F.2d at 101.

The court went on to hold that the facts of Krynicky were more similar to Burton than to Rendell-Baker or Blum. First, the court noted that the statute which initiated state support for the university was enacted to save the state the expense of creating an additional state college. Second, the statute described the university as an “instrumentality” of the state and changed the name of the university to identify its connection with the state system of higher education. Third, the statute provided that the state would select one-third of the trustees of the university. Finally, the court attached particular significance to the statutory requirement that the state make annual appropriations for the university. By contrast, the state could discontinue at any time its support of the institutions in Rendell-Baker and Blum. The Krynicky court found that this “affirmative state act of statutorily accepting responsibility” for the university was the most important distinction from Rendell-Baker and Blum. 742 F.2d at 102.

To summarize, Rendell-Baker and Blum reaffirm that extensive state regulation and funding are, by themselves, insufficient to establish a symbiotic relationship. Instead, a court must find stronger indicia of state-private interdependence, such as location on public property or a statutorily-created continuing relationship, in order to hold that state action exists.

Plaintiff argues that several facts, taken together, show a symbiotic relationship exists between LSS and the state. First, plaintiff contends that the state circumscribes LSS’s decisionmaking freedom through the Regulatory Agreement, Building and Loan Agreement, and Management Agreement, which allow DSHA to determine, inter alia, the design of Luther Towers, the rents paid by tenants, the terms of leases, and the salaries paid to employees. Second, LSS promotes a public purpose identified by the Delaware legislature, because it provides moderately priced housing to low and middle income persons. Third, because LSS contributed only $10,-000 in assets to the $5.5 million mortgage loan from DSHA, plaintiff avers that LSS owed its existence to state action. Fourth, the continuing financial success of the project depends on its receipt of government subsidies. Fifth, as was discussed above in connection with the nexus test, LSS notified DSHA officials about the firing of Edwards, and DSHA had the potential power to take over the management of Luther Towers if LSS violated the agreements. Finally, the state benefited financially from LSS because DSHA used mortgage payments to retire bonds.

These factors, when analyzed, do not demonstrate that a symbiotic relationship exists. The restrictive provisions in the agreements constitute nothing more than an extensive system of regulation. LSS does serve a public purpose, but virtually every recipient of public funds who is given money for a specific reason serves a public purpose. The third factor — the large percentage of LSS’s assets that are derived from public funds — is no different than the financial relationship in Rendell-Baker, where the school received over 90% of its funding from the government, 457 U.S. at 832, 102 S.Ct. at 2767, or Blum, where the state subsidized “practically all of the operating and capital costs of the facility, and [paid] the medical expenses of more than 90% of its residents.” 457 U.S. at 1027, 102 S.Ct. at 2798 (Brennan, J., dissenting). The fact that the project’s success depends upon government funding is also no different than the dependence of the private entities in Rendell-Baker and Blum on government funding; moreover, unlike Krynicky, the continuing governmental funding that Luther Towers receives comes from the federal government, not the state government. In marked contrast to Krynicky, in which the state legislature was committed to continuing appropriations, the state government does not control LSS’s funding and has little say in its continuation.

Concerning the fifth factor, as was discussed above in connection with the nexus test, the notice given to DSHA of the firing of Edwards does not demonstrate significant state involvement with LSS. The potential power of the state to take over the management of LSS does not bear on state action until that power is actually exercised. See Rendell-Baker v. Kohn, 641 F.2d 14, 25 (1st Cir.1981), aff’d, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982). This potential power differs little from the power sometimes reserved by commercial mortgagees to take over the management of mortgaged property if the mortgagee’s security interest is threatened.

The final factor cited by plaintiff — the mortgage payments made to DSHA — is not dispositive, as the state receives mortgage payments and other revenues from a wide variety of private entities which are not considered state actors. In an attempt to analogize this case to Burton, plaintiff argues that the proper management of Luther Towers financially benefits DSHA because it promotes the full utilization of the rental units and therefore ensures that DSHA receives money from HUD and full mortgage payments. Thus, plaintiff argues, because the firing related to the management of Luther Towers, and that management “directly benefits], in some financial capacity, the state,” Thompson v. Community Action of Greater Wilmington, Inc., 567 F.Supp. 1159, 1164 (D.Del. 1983), a symbiotic relationship exists. Plaintiff’s argument is unpersuasive. The Court in Burton concluded that the state was benefiting financially from discrimination because defendant contended discrimination was essential for the profitable operation of its business. Unlike Burton, plaintiff has brought forward no facts to buttress its sheer speculation that the state benefited financially from Edwards’ firing. Upon examination, the factors cited by plaintiff reduce themselves to LSS receiving extensive state financial support and being subject to extensive regulation. The previous discussion establishes that this is not enough to establish a symbiotic relationship. The Supreme Court’s decisions in Rendell-Baker and Blum compel the conclusion that the firing of Edwards cannot be “fairly attributed to the state,” and state action does not exist.

Plaintiff also cites cases from other circuits holding that eviction by landlords of urban redevelopment projects is state action. See McQueen v. Druker, 438 F.2d 781 (1st Cir.1971); Lopez v. Henry Phipps Plaza South, Inc., 498 F.2d 937 (2d Cir. 1974); Joy v. Daniels, 479 F.2d 1236 (4th Cir.1973). Those cases were decided, however, before the Supreme Court’s decisions in Rendell-Baker and Blum made clear that extensive state financial support and funding, without more, do not establish a symbiotic relationship between a private entity and the state. In light of the Supreme Court’s decisions, the continuing precedential value of McQueen, Lopez, and Joy is questionable, in part because it is not clear whether the state’s involvement in those cases went beyond regulation and funding. Since this case is controlled by Rendell-Baker and Blum, the eases cited by plaintiff cannot be followed.

In addition, respect for the proper roles of state and federal courts in the federal system counsels against extending the three cases cited by plaintiff. The landlord-tenant relationship is a matter of state concern with disputes arising from that relationship traditionally being resolved in the state court system. The result of accepting plaintiff’s argument would be to remove these disputes from state courts and arguably federalize landlord-tenant relations whenever the landlord is subject to state funding and regulation. This Court is unwilling to allow 42 U.S.C. § 1983 to become the vehicle for turning landlord-tenant disputes into federal cases. Thus, the Court declines to enlarge the holdings of McQueen, Lopez, and Joy.

III. Conclusion

Because LSS did not engage in state action when it fired Edwards, summary judgment will be entered on plaintiff’s federal claims under 42 U.S.C. § 1983. Plaintiff also alleges pendent state law claims for breach of contract and defamation. “Absent significant investment of time and resources in a particular case, ... the exercise of pendent jurisdiction is improper where the underlying federal claim is dismissed prior to a trial on the merits.” Thompson, 567 F.Supp. at 1168 (citing United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966)). Because little time has been spent on the state law claims, and because, as counsel indicated at oral argument, an action is proceeding in state court on the state law claims, the Court will decline to exercise pendent jurisdiction and will dismiss the pendent claims.

      . Defendants have also raised several other grounds for disposing of the federal and state claims. In light of the disposition of the state action issue, it is unnecessary to address those other arguments.

      . These payments are provided pursuant to section 8 of the United States Housing Act of 1937, as amended by the Housing and Community Development Act of 1974 and codified at 42 U.S.C. § 1437f.

      . The Management Agreement is a DSHA form contract that specifies how the development is to be managed. Although it was referred to in the Regulatory Agreement, neither LSS nor DSHA ever signed the Management Agreement. Affidavit of John Gorlich, Docket Item (“D.I.”) 45. However, since the parties briefed and argued this motion assuming that the Management Agreement was in effect, and since the plaintiff has stressed some of its provisions as showing the connection between the state and LSS, the Court will assume for the purposes of this motion that the Management Agreement in the record is valid and binding.

      . The Regulatory Agreement gives DSHA several alternatives to replacing officers and directors. It can sue for specific performance or request the court to appoint a receiver to take over and operate Luther Towers. DSHA can instead take possession of the project itself and collect rents and operate the project until DSHA, in its discretion, determines that LSS is in a position to operate the development in accordance with the Regulatory Agreement, Mortgage Note, and Mortgage. D.I. 38A, Item 2, at 20.

      . Plaintiffs other constitutional claim is that certain statements made in connection with his firing damaged his reputation, also in violation of the Fourteenth Amendment. Plaintiff has not contended, however, that this constitutional claim requires a separate state action analysis from the firing without due process claim. The state action analysis used for the employment termination claim is equally applicable to the defamation claim, and the holding below that no state action was involved in Edwards’ firing also disposes of the defamation claim.

      . Plaintiff has not alleged that the two other state action tests — the "state compulsion" test and the “public function” test — are applicable. See Krynicky v. University of Pittsburgh, 742 F.2d at 98 n. 4.

      . Deposition of Raymond C. Best, D.I. 42A, at 94; Affidavit of John Gorlich, D.I. 44, Item A-l-A, at 3-4; Affidavit of Lynne Bie, D.I. 44, Item A-1-C, at 3.


source: Caselaw Access Project

license: Public Domain

text:
    COLONIAL MORTGAGE SERVICE COMPANY, Plaintiff, v. Norman N. AERENSON and William R. Hitchens, Jr., Defendants. Norman N. AERENSON, Esquire, Third-Party Plaintiff, v. CONTINENTAL BANK, Third-Party Defendant.
    Civ. A. No. 82-474 MMS.
    United States District Court, D. Delaware.
    Feb. 21, 1985.

      Thomas S. Neuberger, Walter W. Rabin, and Jay S. Ruder, Philadelphia, Pa., for plaintiff; Meltzer & Schiffrin, Philadelphia, Pa., of counsel.
    John T. Owens, and James S. Reichert, John T. Owens, P.A., Wilmington, Del., for defendant and third-party plaintiff N.N. Aerenson.
    Edward M. McNally, Morris, James, Hitchens & Williams, Wilmington, Del., for defendant W.R. Hitchens.
    William J. Wade, and Thomas A. Beck, Richards, Layton & Finger, Wilmington, Del., for third-party defendant.
   OPINION

MURRAY M. SCHWARTZ, District Judge.

This diversity action is presently before the Court on a Motion to Dismiss the third party complaint on the grounds of improper service of process, lack of in personam jurisdiction, and expiration of the statute of limitations. The third party complaint was brought by Norman N. Aerenson against John W. Benson, Jr. and Continental Bank of Pennsylvania. Only the claim between Aerenson and Continental Bank are involved in this motion. Recitation of the facts will be confined to those details relevant to the issues now before the Court. An exposition of the facts underlying the main proceeding in this lawsuit is contained in this Court’s earlier opinion on the matter. See Colonial Mortgage Service Co. v. Aerenson, No. 82-474 (D.Del. Feb. 3,1984).

Background

Continental Bank (“Continental”) is a Pennsylvania bank with its principal place of business in Philadelphia, Pennsylvania. Although Continental purportedly solicits no business in Delaware, it has recorded some 200 mortgages with the Recorder of Deeds for New Castle County, Delaware, on realty located within the County. The mortgages secure loans totalling approximately $130 million. Affidavit of Reichert, Dkt. Item 79. These loans were made in connection with construction loan mortgages arising from Continental’s dealings with Pennsylvania residents, particularly John W. Benson, Jr., a defendant in the third party action. Apparently, Benson has financed the construction of residential development projects in Delaware through loans from Continental. When market conditions were unfavorable to sale of the property, Continental made permanent loans to individual purchasers in Delaware, secured by mortgages on Delaware real estate, thereby facilitating sale of the units and protecting its loans to Benson. See Affidavit of Karnbaeh, Dkt. Item 84. Over the years, Continental has continued to service its loans to Delaware residents. Moreover, on at least six occasions, Continental has instituted action in the Delaware Superior Court related to its interests within the State of Delaware.

This action began after Aerenson, an attorney, was named as a co-agent for an escrow account with partial proceeds from one of Benson’s real estate sales. A sum of $42,206.03 was to be held in escrow to pay a potential realty transfer tax incident to the sale of the property. If no tax was assessed by the expiration of a three-year statute of limitations period, the money was to be paid to Benson’s assignee, Colonial Mortgage Service Company (“Colonial”). According to the third party complaint, however, Continental wrongfully induced Benson to cause the funds to be transferred to it. That transfer took place on April 20, 1980.

On July 26, 1982, Colonial filed suit against Aerenson and his co-agent for the escrow account, William R. Hitchens, Jr. Aerenson’s answer and third party complaint were filed with the Court on November 26, 1982. The third party complaint erroneously named “Continental Bank of Pennsylvania” as third party defendant, although Continental has never used that name. It was not until July 19, 1984, that Aerenson moved to amend the third party complaint to show “Continental Bank” as third party defendant rather than “Continental Bank of Pennsylvania.” The amendment was ordered by the Court on July 20, 1984. Dkt. Item 81.

Aerenson attempted to effect service of process on Continental pursuant to the Delaware long-arm statute, 10 Del.C. § 3104. Accordingly, on December 3, 1982, the United States Marshal served a copy of the Summons and Complaint upon the Delaware Secretary of State. On December 8, 1982, Aerenson’s attorney sent a registered letter containing notice of the pendency of the action to Continental Bank of Pennsylvania, Centre Square, 1500 Market Street, Philadelphia, PA 19102. Although the letter was sent to Continental at its correct address, albeit with an inaccurate name, it failed to arrive at Continental’s Centre Square office. Instead, the return receipt was signed by one Joan Michaels and postmarked in Newtown Square, Pennsylvania. See Affidavit Supporting Proof of Registered Mail, Dkt. Item 19. Continental alleges it has never employed a Joan Michaels and has no branch or office in New-town Square. Furthermore, the parties have uncovered no evidence that a Continental Bank of Pennsylvania exists in New-town Square or elsewhere.

Unfortunately, Aerenson was never aware that the registered letter had been misdirected. Having received no answer to the third party complaint, Aerenson obtained a default judgment against “Continental Bank of Pennsylvania.” See Dkt. Item 23. It was not until March, 1984, when Aerenson filed a praecipe in Pennsylvania to execute the judgment, that Continental learned, allegedly for the first time, of the suit against it. Upon Continental’s motion, this Court ordered the opening of the default judgment. Dkt. Item 70. Continental subsequently filed its motion to dismiss, precipitating Aerenson’s amendment of the third party complaint to name the correct party. To date, neither Continental nor the Delaware Secretary of State have been properly served in connection with this action.

Personal Jurisdiction

As a threshold matter, the Court must first consider the question of in personam jurisdiction over this nonresident defendant. The Court may only extend its jurisdictional reach within the limits provided by the Delaware long-arm statute, 10 Del.C. § 3104, and the due process clause of the United States Constitution. Section 3104 confers personal jurisdiction over any nonresident when the cause of action arises from that person’s commission of any of the acts specified therein. The third party plaintiff has invoked several of the statute’s provisions in support of his jurisdictional claim. A finding that jurisdiction exists under any one of these provisions is sufficient to establish a statutory basis for jurisdiction. In particular, § 3104(c)(4) provides:

(c) As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident, or his personal representative, who in person or through an agent:
....
(4) Causes tortious injury in the State or outside of the State by an act or omission outside the State if he regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from services, or things used or consumed in the State.

Continental does not dispute that the third party complaint alleges tortious injury as that term is used in § 3104(e)(4). See Altech Industries v. Al Tech Specialty Steel Corp., 528 F.Supp. 521, 523 (D.Del. 1981); Magid v. Marcal Paper Mills, Inc., 517 F.Supp. 1125, 1130 (D.Del.1981). The bank takes issue, however, with Aerenson’s contention that the second component of § 3104(c)(4) is satisfied, i.e., that Continental “regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from services or things used or consumed in the State.” In support of its argument, Continental has attempted to minimize the import of its extensive dealings with Delaware residents, businesses, and property by emphasizing that its contacts with Delaware only arise when necessary to protect its paramount interests with Pennsylvania residents. While this may well be so, Continental’s motive for dealing in Delaware is irrelevant to the question of in personam jurisdiction. The fact of the matter is that at least since 1970, Continental has done substantial business in the State and has undoubtedly profited from its services here. It cannot escape process in Delaware under the guise that its real concern is with its clients in Pennsylvania, notwithstanding that it has entered into some 200 loan agreements with Delaware mortgagors, placed millions of dollars at risk in Delaware property, and repeatedly invoked the benefits of the Delaware state courts to protect its interests. Certainly Continental’s activities fall within the literal language of § 3104(c)(4) in that the bank regularly does business or engages in a persistent course of conduct or derives substantial revenue from services in the state.

The exercise of jurisdiction over this nonresident defendant is plainly consistent with the cases decided under section (c)(4) of Delaware’s long-arm provision. See Hill v. Equitable Trust Co., 562 F.Supp. 1324, 1331 (D.Del.1983) (section 3104(c)(4) extends personal jurisdiction to out of state bank which had Delaware mortgages total-ling $500,000, had likely made loans to Delaware residents, had interests in Delaware property, and had engaged in litigation in the state); Magid v. Marcal Paper Mills, Inc., 517 F.Supp. at 1130 (company’s regular shipment of goods to even a single wholesaler satisfies requirement of § 3104(c)(4)); see also Waters v. Deutz Corp., 479 A.2d 273, 275 (Del.1984). Accordingly, since the Court finds that the criteria of § 3104(c)(4) are established, it need not address whether jurisdiction could also be predicated on other provisions of the Delaware long-arm statute.

The question remains whether the exercise of jurisdiction pursuant to § 3104(c)(4) would contravene the due process clause of the United States Constitution. Section 3104(c)(4) is a “general” rather than a “specific” jurisdiction provision. General jurisdiction is at issue “when the claim does not arise out of or is unrelated to the defendant’s contacts with the forum.” See Dollar Savings Bank v. First Security Bank, 746 F.2d 208, 211 (3d Cir. 1984) (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, — U.S. —, nn. 8 & 9,104 S.Ct. 1868,1872 nn. 8 & 9, 80 L.Ed.2d 404 (1984)). In that event, there must be a showing of “continuous and systematic general business contacts” which would make suit in a foreign forum reasonable. Helicopteros Nacionales, — U.S. at —, 104 S.Ct. at 1873. Personal jurisdiction may be extended over a nonresident defendant in such circumstances only if the defendant maintained sufficient contacts with the forum state that the exercise of jurisdiction would not offend “traditional notions of fair play and substantial justice.” Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940).

The constitutional test for personal jurisdiction is similar in this instance to that applied under the statutory framework previously discussed. As the Court has already noted, Continental has regularly and systematically entered into loan agreements in this state when it was commercially expedient for it to do so. Indeed, on approximately 200 occasions during the last fifteen years Continental has seen fit to deal with Delaware residents or Delaware businesses. Under these circumstances, the exercise of general jurisdiction over the defendant bank by the courts of Delaware comports with the constitutional standard. Cf. Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 438, 72 S.Ct. 413, 414, 96 L.Ed. 485 (1952) (Ohio court had jurisdiction over Philippine corporation which “ha[d] been carrying on in Ohio a continuous and systematic, but limited, part of its general business”). Having decided that personal jurisdiction exists, attention is turned to the remaining issues raised in Continental’s motion.

Statute of Limitations

Continental contends that prosecution of the amended third party complaint is barred by the applicable statute of limitations. The parties agree that the statute of limitations expired on April 20, 1983, three years after the transfer of funds at issue in this litigation. Aerenson’s third party complaint was initially filed on November 26, 1982, within the prescribed limitations period. However, that complaint misnamed third party defendant Continental Bank as “Continental Bank of Pennsylvania.” The error was repeated in the summons to the Delaware Secretary of State and in the registered letter sent to the third party defendant’s address. The effect of Aerenson’s error was exacerbated by the fact that Continental inexplicably failed to receive that letter notifying it of the pend-ency of the action. Unaware of this turn of events, Aerenson never amended the third party complaint to correct the name of the defendant until July 20, 1984, some fifteen months after the limitations period expired. Unless that amendment relates back to Aerenson’s original filing, the claim must be dismissed as barred by the statute of limitations.

Rule 15(c) of the Federal Rules of Civil Procedure sets forth the requirements for the relation back of an amended complaint. As a rule of procedure, it controls in both diversity and federal question actions filed in the federal courts. Britt v. Arvanitis, 590 F.2d 57, 61 (3d Cir.1978). Rule 15(c) provides, in pertinent part:

An amendment changing the party against whom a claim is asserted relates back if ..., within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.

Aerenson alleges that his amended complaint merely corrects a minor misdescription in the name of the third party defendant and does not effectuate a “change” in party as contemplated by Rule 15(c). The advisory committee note accompanying the 1966 amendment to the rule explains, however, that “an amendment to correct a misnomer or misdescription of a defendant” operates as a change in party within the meaning of the rule. Indeed, the Court of Appeals for the Third Circuit recently stamped its imprimatur on that interpretation in refusing to fashion an “identity of interest” exception to the rule’s plain language. See Schiavone v. Fortune, 750 F.2d 15, 17-18 (3d Cir.1984) (citing advisory committee note to rule 15(c)). Clearly then, Aerenson’s delayed amended complaint may only profit from the earlier filing date of the original third party complaint if the requirements of rule 15(c) are met.

The survival of Aerenson’s action thus turns on the question whether “within the period provided by law for commencing the action” notice “of the institution of the action” was received by “the party to be brought in by amendment.” The uncontroverted evidence in this matter shows that Continental had no notice of the action against it until early March, 1984 when Aerenson attempted to enforce the default judgment against “Continental Bank of Pennsylvania.” By that time, the statute of limitations had long since expired. Given the unequivocal language of the rule, the lack of timely notice to the third party defendant is fatal to Aerenson’s claim.

Aerenson has nonetheless sought to escape the harsh effect of the application of rule 15(c) on two bases. First, he points to the fact that timely service was made upon the Delaware Secretary of State, pursuant to 10 Del.C. § 3104. The contention that such service obviates the need to provide separate notice to the defendant for purposes of rule 15(c) is, however, without merit. While service on the Secretary of State may operate as “personal” service upon a nonresident defendant for purposes of in person-am jurisdiction, Equitable Trust Co. v. O’Neill, 420 A.2d 1196, 1199 (Del.Super.Ct. 1980), it does not suffice as notice to the “party” as that term is used in rule 15(c). A contrary conclusion would require an interpretation of the rule not justified by its language. Cf. Schiavone v. Fortune, 750 F.2d at 18 (rule 15(c) requires that defendant receive notice within the statutory period; court cannot amend the unequivocal language of the rule in accordance with its own policy preferences); Britt v. Arvanitis, 590 F.2d 57, 62 (3d Cir.1978) (replacement of a “John Doe” defendant with a named party does not relate back if named party had no notice of action prior to running of statute of limitations). Thus, in this context, the requirement that timely notice be provided to “the party to be brought in by amendment” can only mean that Continental itself must have been apprised of the suit prior to the expiration of the statutory period, if the amended complaint is to relate back to the earlier date. Since that plainly did not occur, relation back of the amended third party complaint is impermissible.

Second, Aerenson maintains that dismissal under rule 15(c) is inappropriate because, under Delaware law, the statute of limitations was tolled by the filing of the original third party complaint. Although that argument has some surface appeal, closer examination reveals it is equally unfounded. Any tolling of the limitations period which results from the filing of the action pertains only to the parties named in the complaint — in this case Benson and “Colonial Bank of Pennsylvania.” When amendment is necessary to bring the proper party before the court, Delaware applies a rule identical in its language and effect to Federal Rule 15(c). The state rule permits the relation back of the amended complaint only if the party had timely notice of the pendency of the action. See Mergenthaler, Inc. v. Jefferson, 332 A.2d 396 (Del.1975) (applying Delaware Superior Court rule 15(c)). Where that fails to occur, the plaintiff may take no solace in the fact that the statute of limitations is tolled with respect to the party originally named. Accordingly, it is held that Aerenson’s third party complaint does not relate back to the filing of the initial complaint and must be dismissed for failure to comply with the applicable statute of limitations.

      . A second registered letter was mailed some time in 1984 to "Continental Bank of Pennsylvania" at Continental’s Centre Square, Philadelphia, address. That letter was admittedly received by Continental and the return receipt was properly forwarded back to Aerenson’s attorney. See Transcript of oral Argument, Dkt. Item 89 at 39-40.

      . In contrast, specific jurisdiction is involved when the claim is related to or arises out of the defendant’s contacts with the forum, but the defendant lacks a continuing presence in the state. Dollar Savings, 746 F.2d at 211. In that case, the focus for purposes of in personam jurisdiction is on minimum contacts. Id. at 212.

      . The parties are in agreement that the three-year limitations period of 10 Del.C. § 8106 applies to this case.

      . The third party plaintiff in this case, like the plaintiff in Schiavone, does not contend that the amended complaint remedies a mere misspelling of the party’s name. The Third Circuit Court of Appeals expressly reserved the question of the applicability of rule 15(c) under those circumstances and this court similarly need not reach that issue.


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

text:
    Carroll Eugene BARNES, Plaintiff, v. Vernon HOUSEWRIGHT, Defendant.
    No. CV-R-82-366-ECR.
    United States District Court, D. Nevada.
    Feb. 21, 1985.
    N. Patrick Flanagan, Asst. Federal Public Defender, Reno, Nev., for plaintiff.
    Robert J. Miller, Clark County Dist. Atty. by James Tufteland, Deputy Dist. Atty., Las Vegas, Nev., for defendant.
   ORDER

EDWARD C. REED, Jr., District Judge.

Carroll Eugene Barnes petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In support of his petition Barnes alleges (1) ineffective assistance of counsel in that he had an irreconcilable conflict with appointed counsel and (2) lack of proof at trial that the weapon taken from him was a “firearm” within the meaning of NRS 202.360.

Barnes was tried by jury and convicted in state court on May 22, 1980, of robbery with a deadly weapon and possession of a firearm by an ex-felon. He appealed his conviction to the Nevada Supreme Court on the above two grounds and on August 27, 1982, the conviction was affirmed on both. Barnes v. State, 98 Nev. 367, 649 P.2d 1359 (1982).

Barnes then raised the same two issues in a habeas motion to this Court and included an additional allegation of ineffective assistance of counsel based on extreme incompetence and gross misrepresentation. The latter was treated as a claim not exhausted in state court under Rose v. Lundy, 455 U.S. 509,102 S.Ct. 1198, 71 L.Ed.2d 379 (1982) and on December 14, 1983, this Court ordered Barnes to amend his petition to include only exhausted claims or have it dismissed. Barnes amended his petition on February 29, 1984, and it stands now before this Court on the original two grounds above. Both of these were fairly presented to the Nevada Supreme Court which decided Barnes’ appeal on the merits. Thus, Barnes has exhausted his state court remedies. Rose v. Lundy, supra. See also Hall v. Sumner, 682 F.2d 786 (9th Cir. 1982).

Barnes requested an evidentiary hearing in this matter but, upon examination of the record, this Court finds that one is not warranted. The Supreme Court has identified six circumstances in which a federal habeas petitioner has a right to an evidentiary hearing. Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963). They are: (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not supported by the record as a whole; (3) the fact-finding procedure employed by the state was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing. Barnes has failed to establish that any one of the above circumstances exists in the present case, and this Court is entitled to rely on the state court’s findings. Riley v. Hocker, 441 F.2d 552 (9th Cir.1971). A careful review of the transcript demonstrates that an evidentiary hearing is not warranted in this case.

Barnes argues that his Sixth Amendment right to counsel was violated by ineffective assistance of counsel when he was represented at trial by a court- appointed public defender with whom Barnes had an irreconcilable conflict. The conflict resulted from Barnes refusal to talk to or to cooperate with his counsel before and during trial.

The Sixth Amendment guarantees every defendant the right to counsel and requires that counsel be adequate and effective. Morris v. Slappy, 461 U.S. 1, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983), rev’g Slappy v. Morris, 649 F.2d 718 (9th Cir. 1981) vacated 724 F.2d 841 (9th Cir.1984). However, the Sixth Amendment does not go so far as to guarantee that every defendant will have a “meaningful relationship” with his counsel. In the words of the Supreme Court:

“No court could possibly guarantee that a defendant will develop ... [great] rapport with his attorney — privately retained or provided by the public ... Accordingly, we reject the claim that the Sixth Amendment guarantees a ‘meaningful relationship’ between an accused and his counsel.” Id., 103 S.Ct. at 1617.

In fact, the Sixth Amendment does not even guarantee Barnes counsel of his choice, only that counsel appointed be adequate and effective. Id. 103 S.Ct. at 1615. See also Brown v. Craven, 424 F.2d 1166, 1170 (9th Cir.1970).

In Slappy, the petitioner was represented at trial by an able, well prepared substitute public defender when the original public defender was hospitalized with appendicitis. Slappy refused to talk to and to cooperate with the substitute counsel either before or during trial and moved for a continuance of trial until the original counselor returned. The motion was denied and Slappy was convicted. On appeal, the Supreme Court held that this denial did not violate Slappy’s Sixth Amendment right to counsel because the substitute was adequately prepared and effective. The present case is very similar. Barnes also refused to talk to and to cooperate with his court-appointed attorney before or during trial. Barnes made assorted pretrial motions which the trial court treated as motions to substitute counsel, and which were denied. The record shows that in spite of the fact that there was no communication between Barnes and his counsel, counsel was prepared and ably and competently represented Barnes at trial. This Court now holds that the trial court’s denial of Barnes’ motions to substitute counsel did not violate his Sixth Amendment right to counsel.

The present case may also be compared with Brown. In both cases the defendants refused to cooperate with court-appointed public defenders, before and during trial, and both defendants refused to participate in their own defense. Both defendants made pretrial motions concerning counsel which were denied, and the conflict in both cases was caused by the defendant’s refusal to communicate with counsel. Here, however, the similarity between the two cases ends. In Brown, the trial judge denied the defendant’s motions summarily and there was ample evidence to show that, had the defendant been represented by an attorney in whom he had confidence, he would have been convicted, if at all, of a much lesser offense. Brown v. Craven, 424 F.2d at 1170. For this reason, the court of appeals held that the trial court should have taken the time to conduct an inquiry into the reasons for the defendant’s dissatisfaction, distrust and concern with his attorney. Id.

The same is not true in the present case. Barnes suffered no prejudice as a result of his lack of confidence in his attorney. There is ample evidence that Barnes was the perpetrator of the crimes charged and a review of the record reveals that his court-appointed counsel ably defended him at trial. In addition, the record reveals that the trial court and Barnes had a comprehensive discussion, out of the presence of the jury, about Barnes’ motions for substitution of counsel and about his dissatisfaction with appointed counsel. Using the Brown standard of inquiry, that the court conduct such investigation as will reveal the defendant’s reasons for his dissatisfaction with counsel, the trial court in this matter did not err in not extending the inquiry. See also Hudson v. Rushen, 686 F.2d 826, 831 (9th Cir.1982), cert. denied, 461 U.S. 916,103 S.Ct. 1896, 77 L.Ed.2d 285 (1983) (balancing such factors as defendant’s right to congenial counsel against society’s interest in prompt administration of justice, the trial court’s inquiry into defendant’s dissatisfaction with counsel should be “as comprehensive as the circumstances reasonably would permit.”) This Court is convinced that the trial court had ample justification for denying Barnes’ motions. Any additional hearing into Barnes’ reasons for his dissatisfaction with his counsel would have been duplicative and a waste of judicial resources.

Barnes also argues that the state failed to prove that the weapon seized from his person was a “firearm” within the meaning of NRS 202.253 (defining firearm) and 202.360 (ex-felon in possession of a firearm). The statute describes a firearm as “any weapon with a caliber of .177 inches or greater from which a projectile may be propelled ...” Barnes assigns error to the fact that the state did not prove that the seized weapon would shoot. In other words, Barnes argues that by not proving that a projectile might be expelled from this particular weapon, the state failed to prove that the weapon was a “firearm” within the meaning of the statute. This point was ably argued by counsel for Barnes at trial and the jury was instructed in the state law. Barnes has not complained about the adequacy of these instructions and the trial jury found him guilty of possession of a “firearm” within the meaning of state law. On appeal, the same point was briefed by counsel for Barnes and the Nevada Supreme Court held that Barnes’ challenge to this finding was without merit. State court findings of fact reach the federal court with a presumption of correctness. Sumner v. Mata, 449 U.S. 539, 550, 101 S.Ct. 764, 770, 66 L.Ed.2d 722 (1981). See also Keiper v. Cupp, 509 F.2d 238 (9th Cir.1975). In a federal habeas petition, the burden is on the petitioner to show that there is no support in the record for the state court findings. 28 U.S.C. § 2254(d)(8). See also Sumner v. Mata, supra. In this case, Barnes has failed to do so. A careful review of the record shows that the arresting officer testified at trial that the pistol taken from Barnes had a shell in the chamber. The officer removed this and, in addition, removed rounds from the grip of the gun. From this, a jury reasonably could infer that the pistol would shoot even without actual proof of the fact for one does not ordinarily put bullets into an inoperable gun. Therefore, there was sufficient evidence in this case for the jury to find that the pistol in question was a “firearm” within the meaning of the statute.

For the above reasons, Barnes’ petition for habeas corpus on either of the grounds stated is without merit.

IT IS, THEREFORE, HEREBY ORDERED that the petition for writ of habeas corpus is DENIED.

       This case differs from those in which a claim of ineffective assistance of counsel is based on attorney performance. Barnes argues only that he could not communicate with his appointed counsel; a separate line of cases considers whether the trial counsel, by acts or omissions, was competent in performance. Strickland v. Washington, — U.S. —, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); United States v. McWilliams, 730 F.2d 1218 (9th Cir.1984); Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir.1978).


author: BUA, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Marvin HALL, Defendant.
    No. 84 CR 692.
    United States District Court, N.D. Illinois, E.D.
    Feb. 22, 1985.
    Gregory C. Jones, Acting U.S. Atty. by Alex S. Vesselinovitch, Asst. U.S. Atty., Chicago, Ill., for plaintiff.

      William H. Theis, Chicago, Ill., for defendant.
   MEMORANDUM ORDER

BUA, District Judge.

Before the Court is defendant Marvin Hall’s motion for bail pending appeal. For the reasons stated below, defendant’s motion is denied.

Defendant was convicted following a jury trial on November 28, 1984 of stealing over $100 from the United States in violation of 18 U.S.C. § 641. The crime charged in the indictment occurred in September, 1984. On January 14, 1985, defendant was sentenced to two years imprisonment and ordered to make restitution to the United States in the amount of $1,650. On February 1, 1985, the Court denied defendant’s motions to vacate conviction, for acquittal, and for a new trial. Defendant’s surrender date is set for February 26, 1985.

In his motion for bail pending appeal, defendant argues that he is entitled to bail pending appeal under the law that existed at the time the offense occurred. That law provided:

A person ... who has been convicted of an offense and ... has filed an appeal ... shall be treated in accordance with the provisions of Section 3146 unless the court or judge has reason to believe that no one or more conditions of release will reasonably assure that the person will not flee or pose a danger to any other person or to the community. If such a risk of flight or danger is believed to exist, or if it appears that an appeal is frivolous or taken for delay, the person may be ordered detained.

18 U.S.C. § 3148, repealed by, Comprehensive Crime Control Act of 1984, ch. I § 203, 98 Stat. 1976.

Section 3146 provided:

Any person charged with an offense, other than an offense punishable by death, shall ... be ordered released pending trial on his personal recognizance or upon the execution of an unsecured appearance bond ... unless the [judicial] officer determines, in the exercise of his discretion, that such a release will not reasonably assure the appearance of the person as required____

18 U.S.C. § 3146, repealed by, Comprehensive Crime Control Act of 1984, ch. I, § 203, 98 Stat. 1976.

The government argues that defendant should be denied bail under the Comprehensive Crime Control Act of 1984, Pub.L. No. 98-473, 98 Stat.1976, (“the Act”). Specifically, the government argues that defendant is unable to qualify for release pending appeal under Chapter I of the Act (the Bail Reform Act of 1984), Pub.L. No. 98-473, 98 Stat. 1976, 1976-1985 (codified at 18 U.S.C. §§ 3141-3150) (effective October 12, 1984). Regarding the criteria for determining whether a convicted defendant should be released on bond pending appeal, the Act now provides:

The judicial officer shall order that a person who has been found guilty and sentenced to a term of imprisonment, and who has filed an appeal ... be detained, unless the judicial officer finds—
(1) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released ... and
(2) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial.

18 U.S.C. § 3143(b).

Defendant argues that application of the Act in this case would violate the ex post facto clause, Article I, § 9 of the United States Constitution, because the crime charged in the indictment occurred before the effective date of the Act. Defendant relies upon the recent decision of U.S. v. Cirrincione, 600 F.Supp. 1436 (N.D.Ill. 1985), decided by Judge Getzendanner.

In Cirrincione, the court held that the Act’s “standards for release pending appeal cannot be applied to offenses committed before October 12,1984 without offending the ex post facto clause.” Id. at 1445. The court construed the Act’s new standards as “more than ‘merely procedural’ ” and, in fact, as enhancing the punishment of the defendant. Id. at 1444-1445. The court reasoned that “most rational persons desire to put off punishment as long as they may.” Id. at 1445.

After Cirrincione was decided, however, Judge Roszkowski held that the Act “does not amount to a retrospective enhancement of punishment” and therefore does not offend the ex post facto clause. U.S. v. Giangrosso, 605 F.Supp. 697, 700 (N.D.Ill. 1985). In holding the ex post facto clause does not apply, the court in Giangrosso relied upon U.S. v. Davis, 598 F.Supp. 453 (S.D.N.Y.1984), a decision which construed the Act’s bail modifications as procedural and not substantive. Judge Roszkowski reasoned that the Act’s bail modifications affect only the procedure for determining whether a defendant’s sentence should commence immediately following conviction, and not any of the defendant’s substantive rights. Id. at 701. The Third Circuit also has recently decided that the Act’s new standards for release pending appeal involve “a procedural issue rather than a type of punishment to which the Ex Post Facto Clauses apply.” U.S. v. Miller, 753 F.2d 19, 21 (3d Cir.1985). In a similar case, Judge Shadur held that § 3143(a) (the Act’s modified procedures for release pending sentencing) may be applied retroactively without violating the ex post facto clause. U.S. v. DiVarco, No. 84 CR 507, slip op. (N.D.Ill. February 6,1985).

Reviewing the above opinions, this Court is convinced that the Third Circuit’s opinion in Miller, Judge Roszkowski’s opinion in Giangrosso and the New York district court’s opinion in Davis are persuasive and decided correctly. In Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), the Supreme Court upheld retroactive application of a statute which allowed the trial judge, in a capital case, to disregard the jury’s recommendation of life imprisonment, and instead sentence the defendant to death. The Court construed the change in the statute as “clearly procedural,” and resulted in “no change in the quantum of punishment.” Id. at 293-94, 97 S.Ct. at 2298-99. The Court noted that even though the statute disadvantaged the defendant, such a procedural change was not ex post facto. Id. 293, 97 S.Ct. at 2298.

Like the defendant in Dobbert, defendant here will be disadvantaged under the Act’s new bail procedures. Defendant will serve his sentence sooner under the Act than under the old law. The Act’s new bail provisions, however, similar to the statutory changes in Dobbert, are procedural. Section 3143(b) does not create a new crime, enhance the defendant’s punishment, or deprive the defendant of any defense to the charges. As such, its application to this case does not violate the ex post facto clause.

Applying § 3143(b) to this case, defendant has failed to meet his burden justifying bond on appeal. The Third Circuit recently interpreted § 3143(b) and held that a defendant bears the burden of proving four conditions before a court may. grant bail:

(1) that the defendant is not likely to flee or pose a danger to the safety of any other person or the community if released;
(2) that the appeal is not for purpose of delay;
(3) that the appeal raises a substantial question of law or fact; and
(4) that if that substantial question is determined favorably to defendant on appeal, that decision is likely to result in reversal or an order for a new trial of all counts on which imprisonment has been imposed.

U.S. v. Miller, 753 F.2d 19 (3d Cir.1985). Without passing on elements 1 and 2, defendant has failed to establish that “the appeal raises a substantial question of law or fact” as required by the third and fourth elements. The two errors alleged in defendant’s post trial motion — failure to instruct the jury on entrapment and improper instruction on the definitions of “steal” and “convert” — fail to raise a substantial question of law or fact. See Order Denying Defendant’s Post-Trial Motions, February 1, 1985.

CONCLUSION

For the above reasons, defendant has failed to meet his burden under § 3143(b) and therefore his motion for bail pending appeal is denied. Defendant is ordered to surrender to the United States Marshal in Chicago before 12:00 p.m. (noon) on February 26, 1985.

IT IS SO ORDERED.


text:
    Sheila Smith THURSTON, Plaintiff, v. Judge Norman ROBISON, Nevada State Attorney General Brian McKay, and Capitol Reporters, a Nevada corporation, Defendants.
    No. CV-R-84-362-ECR.
    United States District Court, D. Nevada.
    Feb. 22, 1985.

      Sheila Smith Thurston, in pro. per.
    D. Brian McKay, Atty. Gen., State of Nev., Carson City, Nev., for Judge Robison and Brian McKay.
    Michael Smiley Rowe, Minden, Nev., for Capitol Reporters.
   ORDER

EDWARD C. REED, Jr., District Judge.

Plaintiffs pro se complaint alleges that Judge Norman Robison, Attorney General Brian McKay and Capitol Reporters have violated her constitutional rights. Plaintiff, Sheila Smith Thurston, institutes this action for money damages under 42 U.S.C. §§ 1983, 1985(2), (3) and 1986.

This Court recognizes that pro se complaints are to be held to less stringent standards than formal pleadings drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972) reh. denied 405 U.S. 948, 92 S.Ct. 963, 30 L.Ed.2d 819 (1973). Further, pleadings in civil rights suits are to be liberally construed. See Thomas v. Younglove, 545 F.2d 1171, 1172 (9th Cir.1976).

Robison and McKay have filed a motion to dismiss. Capitol Reporters have also filed a motion to dismiss. Pursuant to Fed.R.Civ.P. 12(b)(6) and 56, these motions to dismiss shall be converted into motions for summary judgment. Also, Thurston has moved for a preliminary injunction. Because this Court grants the motions for summary judgment, we decline to rule on the preliminary injunction.

In support of her claims against Judge Robison, Thurston alleges that: (1) Robison erroneously refused to admit certain evidence at the child custody hearing; (2) Robison’s award to the father of exclusive control over medical and educational decisions for the child violated Thurston’s civil rights; (3) Robison refused to release alleged illegally sealed evidence; and (4) Robison’s order to seal the record violated Thurston’s due process and equal protection rights. It is important to note that Thurston has not appealed any of Judge Robison’s rulings to the Nevada Supreme Court.

The immunity of judges is well settled. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). Absolute judicial immunity is founded upon the principle that “a judicial officer, in exercising the authority vested in him, (should) be free to act upon his own convictions, without apprehension of personal consequences to himself.” Bradley v. Fisher, 80 U.S. (13 Wall) 335, 347, 20 L.Ed. 646 (1871).

Thurston suggests that Robison conspired to violate her constitutional rights and she is therefore entitled to money damages. However, Robison is immune from actions under § 1983 for judicial acts not taken in the clear absence of all jurisdiction when the relief sought is money damages. Stump v. Sparkman, 435 U.S. 349, 357, 98 S.Ct. 1099, 1105, 55 L.Ed.2d 331 (1978); O’Connor v. State of Nev., 686 F.2d 749, 750 (9th Cir.1982); Rankin v. Howard, 633 F.2d 844, 847 (9th Cir.1980), cert. denied, 451 U.S. 939,101 S.Ct. 2020, 68 L.Ed.2d 326 (1981). This Court notes that judicial immunity does not bar § 1983 claims for prospective injunctive relief. Pulliam v. Allen, — U.S. —, 104 S.Ct. 1970, 1981, 80 L.Ed.2d 565 (1984).

Clearly Robison had jurisdiction in this matter. He was acting as a judge of the juvenile division of the district court. Exclusive jurisdiction is vested in the juvenile courts concerning any child where there is concern over his welfare. NRS 62.-040(1)(a)(3). Thurston’s allegations concern those actions Robison took pursuant to his judicial authority. According to the Order by Judge Robison dated August 22, 1984, physical custody was vested in the child’s father, and legal custody was vested both with Thurston and the father. The court also retained jurisdiction. This Court fails to find any abuse of jurisdiction by Judge Robison. Therefore, Judge Robison’s motion for summary judgment is granted.

The factual basis for Thurston’s claims against McKay are somewhat confusing. Apparently, Thurston alleges that the Attorney General of Nevada failed to criminally prosecute Judge Robison.

A state prosecuting attorney acting within the scope of his duties is absolutely immune from a civil suit for damages under 42 U.S.C. § 1983 for alleged deprivation of constitutional rights. Imbler v. Pachtman, 424 U.S. 409, 431, 96 S.Ct. 984, 995, 47 L.Ed.2d 128 (1976); see also Demery v. Kupperman, 735 F.2d 1139, 1143 (9th Cir.1984). The question of whether the failure to initiate prosecution could lead to an award of damages in a civil rights action was specifically addressed in Raitport v. Provident Nat. Bank, 451 F.Supp. 522, 528 (E.D.Pa.1978). The court held:

“[T]hat the decision to approve or disapprove a private criminal complaint fits squarely within the broader function of ‘initiating a prosecution,’ and therefore it cannot subject a prosecutor to civil liability for damages under section 1983.... It would be anomalous to hold that because Imbler spoke only of ‘initiating a prosecution,’ the prosecutor who approves a complaint is immune while the prosecutor who disapproves a complaint is subject to civil liability for damages.... Just as the prosecutor who initiates a criminal case requires protection from the defendant who ‘transform[s] his resentment at being prosecuted into the ascription of improper and malicious actions to the State’s advocate.’ Imbler, supra, 424 U.S. at 425, 96 S.Ct. at 992, so the prosecutor who concludes that prosecution is unwarranted requires protection from the complainant whose excessive zeal for invoking the criminal process blinds him to any aspects of the case that counsel against prosecution.”

Id.

It is not clear whether a criminal complaint was filed with the Nevada Attorney General. However, even if this Court assumes that a criminal complaint was filed with McKay, the decision whether to prosecute is solely within the discretion of McKay unless ordered by the governor. See NRS 228.120. Therefore, Thurston’s claims against Attorney General McKay for damages is dismissed.

Finally, Thurston argues that by refusing to deliver a transcript of the August 17,1984, child custody hearing to her, Capitol Reporters have violated her constitutional rights. However, the record was ordered sealed by the court.

Judicial immunity “extends to other officers of government whose duties are related to the judicial process.” Barr v. Matteo, 360 U.S. 564, 569, 79 S.Ct. 1335, 1338, 3 L.Ed.2d 1434 (1959).

Capitol Reporters were performing acts in their capacity as quasi-judicial officers and are clothed with judicial immunity. See Stewart v. Minnick, 409 F.2d 826 (9th Cir.1969); see also Dieu v. Norton, 411 F.2d 761, 763 (7th Cir.1969). Therefore, Thurston’s claims against Capitol Reporters for damages is dismissed.

Conclusion

The courts have consistently adhered to the rule that judges defending against § 1983 actions enjoy absolute immunity from damages liability , for acts performed in their judicial capacities. It has also long been held that a prosecutor is absolutely immune from civil rights suits for activities allegedly committed while in the course of his employment and duties as a prosecuting attorney. Judicial immunity is appropriately extended to court reporters acting in the discharge of their official responsibilities.

IT IS, THEREFORE, HEREBY ORDERED that summary judgment be entered in favor of Judge Robison.

IT IS FURTHER ORDERED that summary judgment be entered in favor of Attorney General McKay.

IT IS FURTHER ORDERED that summary judgment be entered in favor of Capitol Reporters.

      . The motions to dismiss included an exhibit and an affidavit. We chose not to exclude these materials and therefore converted the motions to dismiss to summary judgment. In addition, pursuant to our order of November 15, 1984, (Document # 14), all parties have filed additional affidavits and exhibits in support of their respective positions in this matter.

      . Although this Court declines to rule on Thurston’s motion for preliminary injunction, we do note that the motion appears to have several problems. First, she seeks only damages in her complaint. A preliminary injunction appears to be inconsistent with this relief. Second, she prays for this Court to enjoin state officials from carrying out duties which they are charged under the law to carry out. Finally, she prays for an injunction prohibiting the release of her son from Nevada. Apparently this has already been done, thereby rendering that relief moot.

      . Thurston makes further allegations of threats of arrest by the judge if she appealed this ruling, and a bias of Judge Robison against all women.

      . Thurston’s reliance on Goodwin v. Circuit Court of St. Louis County, Missouri, 729 F.2d 541 (8th Cir.1984), is misplaced. The Goodwin court rejected judicial immunity because the act complained of was an administrative personnel decision, not an official judicial act. 729 F.2d at 549. As noted, the acts complained of in the case before this Court were official judicial acts.

      . Capitol may be liable for contempt if they produced a transcript from a hearing which was ordered sealed by the judge. It would seem that Thurston’s proper remedy is to obtain an order from the district court for a transcript of the hearing.


author: SOFAER, District Judge.

text:
    NATIONAL SURVIVAL GAME, INC., Plaintiff, v. SKIRMISH, U.S.A., INC.; Pocono Whitewater, Ltd.; The Learning Annex; Douglas W. Fogal; Douglas Fogal, Jr.; and Paul Fogal, Defendants.
    No. 84 Civ. 7813 (ADS).
    United States District Court, S.D. New York.
    Feb. 25, 1985.

      Rosenman, Colin, Freund, Lewis & Cohen, New York City, Hale & Dorr, Boston, Mass., for plaintiff; Marc E. Kasowitz, New York City, Neil Jacobs, Donald K. Stern, Susan G. Winkler, Boston, Mass., of counsel.
    Kenyon & Kenyon, New York City, for defendants Douglas W. Fogal, Douglas Fogal, Jr., and Paul Fogal; Francis T. Carr, Robert D. Fier, New York City, of counsel.
   MEMORANDUM OPINION AND ORDER

SOFAER, District Judge.

Defendants Douglas W. Fogal, Douglas Fogal, Jr., and Paul Fogal (“the Fogals”) have moved to dismiss plaintiff's complaint, pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim upon which relief can be granted. Defendants contend, without citation to a single authority, that they are insulated from personal liability because their allegedly illegal conduct was performed not in their individual capacities but as officers of a corporation. Plaintiff National Survival Game, Inc. (“NSG”), responds that when a corporate officer or employee commits or participates in tortious or otherwise illegal conduct within the course of his corporate duties, the officer may be held jointly and severally liable with the corporation.

On this motion, the complaint must be construed in the light most favorable to plaintiff and its allegations must be taken as true. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Jones-Bey v. Caso, 535 F.2d 1360, 1362 (2d Cir.1976). NSG is engaged in the business of advertising, promoting, and selling equipment for the Survival Game, an outdoors airgun game played by adults. The defendants are various corporate entities and individuals involved in the marketing and playing of a game called Skirmish, which competes with the Survival Game in the New York metropolitan area. Defendant Skirmish, Inc. (“Skirmish”) is engaged in the business of advertising and conducting this competing game; defendant Pocono Whitewater, Ltd. (“Pocono”), owns and operates the location in Pennsylvania where Skirmish is played; defendant The Learning Annex (“Learning Annex”) both advertises and organizes bus trips to the Poconos to play Skirmish. The Fogals are officers of Skirmish and Pocono. Paul Fogal is president of Skirmish; Douglas Fogal, Jr. is vice-president of Skirmish; and Douglas Fogal is president of Pocono.

Plaintiff alleges that in November 1983, approximately two years after the formation of NSG, defendants Douglas W. Fogal and Paul Fogal met with R. Gerard Jaggard, NSG’s vice-president of marketing and sales, seeking to become a dealer of the Survival Game in the New York/Philadelphia area. During that meeting, the Fogals sought and received detailed and extensive verbal and written information and materials concerning the Survival Game, including articles and brochures written about or promoting the Survival Game. In addition, plaintiff alleges meetings in December 1983 with NSG and its local dealers, after which the Fogals stopped inquiring about the Survival Game and ceased any efforts to negotiate a dealership.

Plaintiff also alleges that in June 1984 the Fogals began operating Skirmish, which is based on the same format as the Survival Game. Subsequently, defendants allegedly began disseminating false and misleading advertising that sought to misappropriate NSG’s good will and market position by attributing to Skirmish statements and endorsements made in print and on radio about the Survival Game. Plaintiff seeks injunctive relief and damages for violations of the Lanham Act, 15 U.S.C. § 1125(a) (1982), unfair competition, breach of quasi-contractual obligations, interference with prospective business relations, conspiracy to injure another’s business, and violations of N.Y.Gen.Bus.L. §§ 349(a) and 350 (McKinney 1968 & Supp.1983-84).

A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957); Lipsky v. Commonwealth United Corp., 551 F.2d 887, 894 (2d Cir.1976). Whether plaintiff’s complaint states a claim against the individually named defendants turns on whether defendants, as officers of corporations, are insulated from personal liability or may be held jointly and severally liable with the defendant corporations. The general principle is that a corporate officer who participates in a tort, even if it is in the course of his duties, may be held individually responsible. Donsco, Inc. v. Casper Corp., 587 F.2d 602, 606 (3d Cir.1978) (president of corporate defendant could.be held individually liable for violations of Lanham Act committed by him during course of his employment); Polyglycoat Corp. v. C.P.C. Distributors, Inc., 534 F.Supp. 200, 204 (S.D.N.Y.1982) (allegation that corporate, officer personally participated in commission of violation sufficient to withstand motion to dismiss). This principle was recently applied in Max Daetwyler Corp. v. Input Graphics, Inc., 541 F.Supp. 115 (E.D.Pa.1982), to permit a suit against individual corporate officers for engaging in false advertising in violation of the Lanham Act. In Max Daetwyler, plaintiffs sought to amend their complaint to include as additional defendants the principal officers of two defendant competitors, because the officers were to “some extent” personally involved in their companies’ tortious conduct. In permitting the amendment, the court stated that “the joint tortfeasor principles for corporate officers ... appear to be clearly applicable to Lanham Act claims.” Id. at 116.

As to the pendent state claim, New York law also provides that a corporate officer who participates in the commission of a tort, even if he acts on behalf of the corporation and in the course of his corporate duties, may ordinarily be held individually responsible. See, e.g., Bailey v. Baker’s Air Force Gas Corp., 50 A.D.2d 129, 376 N.Y.S.2d 212 (3d Dep’t 1975); La Lumia v. Schwartz, 23 A.D.2d 668, 257 N.Y. S.2d 348 (2d Dep’t 1965).

In this case, plaintiff alleges that each of the Fogals personally participated in the wrongful acts and, as such, may be held jointly and severally liable with the defendant corporations. NSG’s allegations are sufficient to state a claim against the Fogals. Defendants’ motion to dismiss the complaint pursuant to Rule 12(b)(6) Fed.R. Civ.P. is therefore denied.

Finally, the court, on its own motion pursuant to Fed.R.Civ.P. 11, hereby orders attorneys for defendants to pay to plaintiff all reasonable expenses incurred as a result of filing this motion, including reasonable attorney’s fees. Defendants failed to cite a single case or authority in their two-page memorandum. Apparently, they completely ignored the firmly established precedents directly contradictory to their position. No doubt exists that counsel failed to conduct the “reasonable inquiry” that Rule 11 requires to ensure that a motion “is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose....” See, e.g., Tedeschi v. Smith Barney, Harris Upham & Co., 579 F.Supp. 657, 661 (S.D.N.Y.1984); Wells v. Oppenheimer & Co., 101 F.R.D. 358, 359 (S.D.N.Y.1984). Plaintiff should prepare a statement of the expenses incurred in opposing this motion.

SO ORDERED.