author: REGAN, District Judge.

text:
    CHARLES SCHMITT AND COMPANY, a corporation, Plaintiff, v. GRAN PRIX AUTO WHOLESALERS, INC., Defendant.
    No. 85-35 C (B).
    United States District Court, E.D. Missouri.
    Aug. 8, 1985.

      George .E. Schaaf, Guilfoil, Petzall & Shoemake, Russell F. Watters, Paul S. Brown, Brown, James & Rabbitt, St. Louis, Mo., for plaintiff.
    Marvin Levine, Levine & Poznansky, New York City, Earle B. Leadlove, St. Louis, Mo., for defendant.
   MEMORANDUM AND ORDER

REGAN, District Judge.

This matter is before the Court on motion of defendant Grand Prix Auto Wholesalers, Inc. (“Grand Prix”) to dismiss the complaint for lack of personal jurisdiction and to quash service of process.

In considering a motion to dismiss for lack of personal jurisdiction over a nonresident defendant, a federal court sitting in diversity must engage in a two-step inquiry: first, whether state law confers personal jurisdiction over the defendant; and second, whether such an assertion of jurisdiction is consistent with the due process clause of the fourteenth amendment. Sales Service Inc. v. Daewoo International (America) Corp., 719 F.2d 971, 972 (8th Cir.1983); The Land-O-Nod Company v. Bassett Furniture Industries, Inc., 708 F.2d 1338, 1340 (8th Cir.1983); Scullin Steel Co. v. National Railway Utilization Corp., 676 F.2d 309, 312 (8th Cir.1982). The party seeking to invoke federal jurisdiction bears the burden of establishing that personal jurisdiction does exist and that burden may not be shifted to the party challenging the jurisdiction. Mountaire Feeds, Inc. v. Agro Impex, S.A., 677 F.2d 651, 653 (8th Cir.1982). Greycas, Inc. v. Anderson, 584 F.Supp. 894, 895 (D.C.Mo. 1984); Scullin Steel, 676 F.2d at 311.

Missouri does have a long-arm statute which authorizes jurisdiction over a non-resident defendant. Missouri’s statute provides:

1. Any person or firm, whether or not a citizen or resident of this state, or any corporation, who in person or through an agent does any of the acts enumerated in this section, thereby submits such person, firm, or corporation, and if an individual, his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any such acts:
(1) The transaction of any business within this state;
(2) The making of any contract within this state;
(3) The commission of a tortious act within this state;
(4) The ownership, use, or possession of any real estate situated in this state;
(5) The contracting to insure any person, property or risk located within this state at the time of contracting.
2. Only causes of action arising from acts enumerated in this section may be asserted against a defendant in an action in which jurisdiction over him is based upon this section.
§ 506.500, R.S.Mo. (1982).

Service of process under this statute is effective to extend jurisdiction over nonresident defendants to the limits allowed under the due process clause. State ex rel Deere & Co. v. Pinnell, 454 S.W.2d 889, 892 (Mo.1970) (en banc); See also Rule 4(e) of the Federal Rules of Civil Procedure.

The due process clause of the fourteenth amendment limits the power of a court to exercise personal jurisdiction over a non-resident defendant. The due process clause requires that a defendant have certain minimum contacts with the forum state such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945); Accord, World Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980); Kulko v. California Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978); Land of Nod, at 1340. “In judging minimum contacts, a court properly focuses on ‘the relationship among the defendant, the forum, and the litigation.’ ” Colder v. Jones, 465 U.S. 783, 104 S.Ct. 1482 at 1486, 79 L.Ed.2d 804 (1984) (citations omitted); Helicopters Nacionales de Colombia S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868 at 1872, 80 L.Ed.2d 404 (1984). The defendant’s contacts with the forum state must be purposeful and such that defendant “should reasonably anticipate being haled into court there.” World Wide Volkswagen, supra, 444 U.S. at 297, 100 S.Ct. at 567; Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958).

To determine if the exercise of personal jurisdiction violates due process, courts generally consider these five factors: (1) the nature and quality of the contacts with the forum state; (2) the quantity of the contacts with the forum state; (3) the relation of the cause of action to the contacts; (4) the interest of the forum state in providing a forum for its residents; and (5) the convenience of the parties. Aaron Ferer & Sons Co. v. Diversified Metals Corp., 564 F.2d 1211, 1215 (8th Cir.1977; Simpson v. DYCON International, Inc., 618 S.W.2d 455, 457 (Mo. App.1981). Land-O-Nod, supra at 1340. The first three factors are of primary importance and the last two are of secondary importance. Land-O-Nod, supra at 1340. Hasty v. Paccar, 583 F.Supp. 1577, 1579 (D.C.Mo.1984).

Defendant Grand Prix is a New York corporation with its principal place of business in the County of Bronx, State of New York. The affidavit of Edward Haskell, President of Grand Prix, states that:

1) Grand Prix has never had and presently does not maintain any office, bank account, mailing address, telephone listing, or other business facility in the State of Missouri.
2) Grand Prix has never had any affiliates or subsidiaries which engaged in business in the state of Missouri.
3) Grand Prix has never owned any property in the State of Missouri, nor has it ever paid or been called upon to pay any Missouri tax.
4) Grand Prix has never placed any advertising in any publication printed or sold in the State of Missouri.
5) Plaintiff’s principal officer, Charles Schmitt, purchased the automobile that is the subject of this lawsuit, at defendant’s place of business in Bronx, New York.
6) The automobile was delivered to plaintiff FOB New York.
7) Payment for the automobile in question was made to Grand Prix by plaintiff in New York and title papers were furnished to plaintiff in New York.

Charles D. Schmitt, president of plaintiff, has filed an affidavit in opposition to Grand Prix’s motion to dismiss. Schmitt’s affidavit states that:

1) Plaintiff has purchased 451 cars from defendant for the sum of $9,222,810.00 during the period of the summer of 1978 through February, 1985.
2) Since the fall of 1982 through February 1985, plaintiff has sold 13 cars to defendant for the sum of $386,525.00.
3) Many of these sales between plaintiff and defendant were consummated by telephone with plaintiff arranging to send a driver to New York to pick up the automobile purchased from Grand Prix or plaintiff arranging to have the car shipped to its place of business in Missouri.
4) Employees of defendant have delivered several cars purchased from defendant in New York to plaintiff at plaintiff’s place of business in St. Louis, Missouri.
5) On several occasions, agents, servants, and employees of defendant have visited plaintiff’s place of business in St. Louis, Missouri for the purpose of buying cars from plaintiff and for the purpose of selling cars to plaintiff.
6) Defendant paid for many cars purchased from plaintiff by sending a check to plaintiff at its place of business in St. Louis, Missouri.
7) Several cars listed on Exhibit B (“cars sold to Grand Prix by Charles Schmitt & Co.”) “were delivered by defendant’s employees to plaintiff’s place of business in Missouri” (sic).

When considering the Missouri long-arm jurisdiction statute, the phrase “transaction of any business” must be construed broadly. A corporation may be subject to long-arm jurisdiction even though it would not be required to qualify to do business as a foreign corporation. State ex rel. Metal Service Center v. Gaertner, 677 S.W.2d 325, 327 (Mo. banc 1984).

Analyzing the “primary factors” enumerated above, we see that the cause of action herein does not arise out of Grand Prix’s contacts with Missouri. The quantity of Grand Prix's contacts with Missouri are minimal and uncertain: Schmitt’s affidavit states that plaintiff sold Grand Prix 13 cars over a three year period. No details have been provided concerning these 13 sales, particularly Grand Prix’s contacts with Missouri, if any, as a result of these sales. Schmitt’s affidavit states that agents, servants, and employees of Grand Prix have visited plaintiff’s place of business in St. Louis, Mo. for the purpose of buying cars from plaintiff or for selling cars to it. The affidavit does not state the number of any such visits or the times when such visits occurred, nor does the affidavit state whether any sales or purchases were in fact made on these visits, nor does the affidavit state whether Grand Prix initiated these visits or whether these visits were made at plaintiff’s request. The nature and quality of Grand Prix’s contacts with Missouri are very uncertain. “The use of the arteries of interstate mail, telephone, railway and banking facilities is insufficient standing alone, to satisfy due process.” Aaron Ferer & Sons Co. v. Atlas Scrap Iron, 558 F.2d 450, 453 (8th Cir.1977). Grand Prix sold and delivered the car at issue herein to plaintiff in New York. Payment for the car was made in New York. Title was transferred in New York. The sale appears to have been negotiated in New York. An inference can be raised that Grand Prix knew that the car was destined for Missouri. However, the final destination of the car was unilaterally determined by plaintiff. There appears to be no other nexus with Missouri.

Analyzing the “secondary factors”, there is no doubt that Missouri has an interest in providing a forum for its residents. However, that interest is less compelling when the transaction giving rise to the claim takes place principally, if not entirely, outside the state. The convenience of the parties weighs in favor of a New York forum. Grand Prix claims that it cannot assert a purported third party claim against its vendor in Missouri although it states it would be able to do so in New York.

Therefore, having fully considered the matter, the Court concludes that plaintiff has failed to make a prima facie showing of facts sufficient to support the exercise of personal jurisdiction in this case. Plaintiff has shown us no case wherein a Court found it had personal jurisdiction over a nonresident defendant with similar contacts to the forum as the defendant herein has to Missouri. Thus, while it appears that Grand Prix may have “transacted business” within the State of Missouri, we cannot say that it has sufficient minimum contacts with this forum such that the maintenance of jurisdiction herein would not offend traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). Nor can we say that Grand Prix purposefully availed itself of the privilege of conducting business within the state of Missouri, thus invoking the benefits and protections of Missouri’s laws. Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958). We cannot say that Grand Prix’s activities within this forum give rise, directly or indirectly to the asserted cause of action. Aluminum Housewares Co. Inc. v. Chip Clip Corp., 609 F.Supp. 358, 361 (D.C.Mo.1984).

Accordingly, IT IS HEREBY ORDERED that defendant’s motion to dismiss for lack of personal jurisdiction be and the same is hereby SUSTAINED.

Additionally, while we concur with plaintiff that section II of defendant’s Memorandum in Support of its Motion to Dismiss, alleging faulty service of process in this case, is not warranted by existing law or a good faith argument for the extension, modification or reversal of the same, we do not feel that this memorandum was signed in violation of Rule 11 of the Federal Rules of Civil Procedure. Paragraph 7 of the Complaint could be construed as an attempt to assert jurisdiction in this Court under the Magnuson-Moss Warranty Act. Accordingly, plaintiff’s request for the sanction of attorney fees is DENIED.

      . Jurisdiction herein is based on 28 U.S.C. § 1332, (Paragraph 3 of the Complaint). Paragraph 7 of the complaint alleges that defendant violated the Magnuscon-Moss Act, 15 U.S.C. § 2301 et seq. Plaintiff has not alleged that Magnuson Moss confers a separate basis for jurisdiction in this Court. Additionally, were we to find a jurisdictional basis under the Magnuson-Moss, we doubt that plaintiff has stated a claim under the Act since plaintiff does not appear to be a "consumer” as defined in 15 U.S.C. § 2301(3) (“consumer means a buyer [other than for purposes of resale] ...) nor is the automobile in question here a “consumer product” (as defined in 15 U.S.C. § 2301(1)) as to plaintiff.

      . See footnote 1, supra.


source: Caselaw Access Project

author: GETZENDANNER, District Judge:

license: Public Domain

text:
    Bernard GOSLING, Plaintiff, v. ACE HARDWARE CORPORATION, et al., Defendants.
    No. 84 C 0103.
    United States District Court, N.D. Illinois, E.D.
    Aug. 9, 1985.

      Thomas Geoghegan, of Despres, Schwartz & Geoghegan, Chicago, Ill., for plaintiff.
    Sherman Carmell, of Carmell, Charone & Widmer, Ltd., Chicago, Ill., for defendants.
   MEMORANDUM OPINION AND ORDER

GETZENDANNER, District Judge:

This federal labor case is before the court on plaintiff Bernard Gosling’s motion to dismiss defendant’s counterclaim and for a more definite statement of count VII of that counterclaim. Also before the court is defendant’s motion to join additional parties and to serve an additional third-party defendant. Defendant and third-party plaintiffs also move to dismiss voluntarily count VII of their counterclaim. For the reaspns stated below, plaintiff’s motion to dismiss is granted in full and his motion for a more definite statement is moot. Defendant’s motion to join and serve additional parties is denied and the motion voluntarily to dismiss count VII is granted.

The present motions grew out of Gosling’s filing a five-count second amended complaint against defendant International Brotherhood of Teamsters, Local 705 (“Local 705”). Gosling had filed the original complaint on January 5, 1984, charging his employer with breach of the collective bargaining contract in violation of § 801 of the Labor Management Relations Act, 29 U.S.C. § 185, and Local 705 with breach of its duty of fair representation, as well as of other provisions of federal labor and state law. According to Gosling, his troubles with his employer and with Local 705 arose out of his membership in Teamsters for a Democratic Union (“TDU”), which he describes as a democratic reform group challenging the policies of Local 705 officers.

In retaliation against Gosling for his participation in this dissident activity and his exercise of his rights to free expression under the federal constitution and provisions of federal labor law, Gosling alleges that Local 705 repeatedly refused to process his grievances and induced his employer to violate the collective bargaining contract. In addition, Gosling was severely beaten by Local 705 officials when he arrived at the union hall on October 3, 1983, having been promised by Local 705 officials that he would receive a hearing on one of his grievances on that date. During the beating, Gosling’s documents were seized, he was told he would be expelled from the union, and ten persons struck and grabbed him. These allegations are contained in Gosling’s original and first amended complaints.

On December 20, 1984, Gosling appeared at the Local 705 union hall to attend a regularly scheduled meeting and to hand out TDU literature with Aaron Kesner. When Gosling tried to enter the hall, he encountered at least two Local 705 officers or agents who were stationed at the door handing out identification cards to the incoming members. The two officials stopped Gosling and Kesner at the door and, without provocation or other cause and with the approval of Local 705 and its principal officers, assaulted and beat Gosling by “striking and beating him in the eye, head, neck, chest, leg and groin, choking and kicking him, and causing profuse bleeding from his eye.” (Second Amended Complaint ¶ 55.) As a result of this beating, Gosling suffered “serious injury to his eye, face, neck, back and leg, disfigurement of his face, neurological and other physical injuries, pain and suffering and acute emotional and psychological distress, which has been manifested in various physical symptoms.” (Id. at ¶ 56.)

Soon after this December 20, 1984 event, Gosling moved to amend his pleadings to add a claim based on the most recent assault and battery by Local 705 members. Count V of the current pleadings, Gosling’s second amended complaint, contains these allegations. Local 705 answered, and filed a seven-count counterclaim in which it named Gosling as a counterdefendant and attempted to join Aaron Kesner as a third-party defendant. Moreover, the counterclaim added three additional parties as third-party plaintiffs, union members James Colgan, Carmen Levato, and John Palumbo. In the counterclaim, Local 705 attempts to state claims against Gosling and Kesner for their actions in initiating criminal proceedings against those whom they considered responsible for the 1984 beating. According to Local 705, in doing this, Gosling and Kesner violated Local 705’s and its officers’ rights under federal labor and state tort law.

Motion to Dismiss

In counts III and IV of the counterclaim, Local 705 repeats the allegations of malicious prosecution against Gosling and Kesner that are contained in the third-party complaint of Colgan, Levato, and Palumbo at counts I and II. Those allegations, in pertinent part, are as follows:

On or about December 20, 1984, counterdefendants, acting individually and in concert, instituted or caused to be instituted in the Circuit Court of Cook County, Illinois, without probable cause or proper motive, criminal proceedings for battery ... based on allegations in ¶¶ 28-32 of counterdefendant Gosling’s second amended complaint.
On April 10,1985, after a trial in which counterdefendants were the only persons to testify in support of the charges, the criminal proceedings were finally terminated by judgments of not guilty.

(Counterclaim, count I at ¶¶ 5-6.) These counts must be dismissed for failure to state a claim for two independent reasons. First, Local 705 has never been a subject of a criminal complaint or proceeding initiated by Gosling; Gosling complained about the actions of Levato, Palumbo, and Colgan. Local 705 admits as much but argues that since its agents and representatives were prosecuted, it also has standing to state a malicious prosecution claim. As support for this novel argument, Local 705 cites Caspers v. Chicago Real Estate Board, 58 Ill.App.2d 113, 117, 206 N.E.2d 787 (1st Dist.1965). In that case, the Court assumed in dictum that a principal shareholder and president of a corporation could state a claim for malicious prosecution where the offending suit was maintained against the corporation. Even assuming that Caspers is a holding on that issue (the dismissal of the suit was upheld for different reasons), Caspers involved a case where the plaintiff was an “alter ego” of the corporation, and for that reason it is entirely different from this case. Here, Local 705 has not even attempted to allege that three of its union officers were its alter ego.

The union makes the interesting argument that if Gosling can hold it vicariously liable for the acts of its agents, then it should be able to sue in its own right for acts done to its agents under an alter ego theory. While the court makes no ruling on when Local 705 could sue on behalf of its agents, Local 705’s argument misses the mark. A showing of respondeat superior liability is completely different from liability or capacity to sue based on the alter ego theory.

Local 705’s malicious prosecution claim must fail for a second reason. In Illinois, a claim for malicious prosecution must allege facts tending to show:

(1) the commencement or continuance of an original criminal or civil judicial proceeding by the defendant; (2) the termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause for such proceeding; (4) the presence of malice; and (5) damages resulting to the plaintiff. [Citation omitted.]

Gonzalez v. Chicago Steel Rule Die & Fabricators Co., 106 Ill.App.3d 848, 62 Ill.Dec. 577, 578, 436 N.E.2d 603, 604 (1st Dist.1982) (citing Joiner v. Benton Community Bank, 82 Ill.2d 40, 45, 44 Ill.Dec. 260, 263, 411 N.E.2d 229, 232 (1980)). Illinois case law makes clear that even actions resulting in a finding for the plaintiff and commenced with malice will not state a claim for malicious prosecution unless also commenced without probable cause. Probable cause means “such a state of facts, in the mind of the prosecutor, as would lead a man of ordinary action and prudence to believe or entertain an honest and sound suspicion that the person accused is guilty____” Carbaugh v. Peat, 40 Ill.App.2d 37, 47, 189 N.E.2d 14, 19 (2d Dist. 1963). Mistake or error not amounting to gross negligence will not affect the question of whether the person instituting the claim had an honest belief in the guilt of the plaintiff. Mangus v. Cock Robin Ice Cream Co., Inc., 52 Ill.App.3d 110, 9 Ill.Dec. 769, 773, 367 N.E.2d 203, 207 (1st Dist.1977).

Here, the counterclaim contains no allegations tending to support the bare legal conclusion that the criminal complaint was brought without probable cause. Gosling argues that various trial rulings demonstrate he would prevail on a motion for summary judgment on the issue of probable cause, but the court does not consider the merits on this motion. Rather, the court is concerned only by the omission in Local 705’s allegations of any support for its conclusion concerning this important element of a malicious prosecution claim. Counts III and IV are therefore dismissed for failure to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6).

In count V, Local 705 and third-party plaintiffs allege that Gosling and Kesner instituted criminal proceedings “as part of a conspiracy and with intent to deprive or chill eounterplaintiffs’ ... rights, including the right to meet and assemble freely with other members and to express views, arguments or opinions, and to nominate and elect candidates for union office ... and the right of counterplaintiff Local 705 to promulgate and expect compliance with reasonable rules governing the responsibility of members to Local 705.” They allege that the institution of the criminal proceedings violated their rights under the Labor Management Reporting and Disclosure Act (“LMRDA”) § 101(a)(1) & (2); 29 U.S.C. § 411(a)(1) & (2). Local 705 brings its LMRDA claim under 29 U.S.C. § 412, allowing “any persons” whose rights are secured under § 411 and other provisions to bring a civil action for relief. It should be noted initially that these allegations are completely conclusory. For example, there is simply no allegation even suggesting that counterdefendants’ actions in any way infringed on or chilled Local 705’s rights to promulgate and maintain reasonable rules and regulations of any kind. Assuming counterplaintiffs could allege such facts, the court will consider whether §§ 411 and 412 are applicable here.

Section 411(a)(1) & (2) provides that all members of a labor organization shall have equal rights and privileges regarding union business and elections, and shall have freedom of speech and assembly, subject to the union’s rights to maintain reasonable rules regarding union members’ responsibilities to the union. Assuming that Local 705 may maintain an action under § 411 against its own members, count V still fails to state a claim. The Second Circuit has clearly held that union action is a prerequisite to liability under § 412; individual union members may be sued thereunder to the extent that they acted on behalf of the union. Rasarlo v. Amalgamated Ladies Garment Cutters’ Union, Local 10, 605 F.2d 1228, 1246-47 (2d Cir.1979), cert. denied, 446 U.S. 919, 100 S.Ct. 1853, 64 L.Ed.2d 273 (1980); see also Morrissey v. National Maritime Union of America, 544 F.2d 19, 24 (2d Cir.1976). Sections 411 and 412 were designed in part to “curb the power of overweening union officials,” Rosario, 605 F.2d at 1246, and not to discipline union membership. See generally T. Kheel, Labor Law § 43.01[2] (1985 & Supp. 1985). There is no allegation that Gosling’s and Kesner’s actions had any official character.

Local 705 cites International Brotherhood of Electrical Workers, Local 336 v. Illinois Bell Telephone Company, 496 F.2d 1, 2 n. 2 (7th Cir.), cert. denied, 419 U.S. 879, 95 S.Ct. 144, 42 L.Ed.2d 120 (1974), for the proposition that unions and union officials are not the only proper defendants under § 412. However, that case involved a suit by the union against the employer, brought for violation of rights under § 411(a)(4), a provision that explicitly instructs that interested employers may not participate in various ways in suits brought by union members. Thus, the case is distinguishable because Local 705 is not suing an employer and is not relying on § 411(a)(4). Teamsters Local 1 v. International Brotherhood of Teamsters, 419 F.Supp. 263, 272 (E.D.Pa.1976), is similarly distinguishable, since it involved a suit by a local against an international union. Local 705 has cited no case, and the court’s research finds none, that stands for the proposition that a union and its members may sue other union members under § 412, where those defendant members are not acting in any official union capacity. The court will not construe §§ 411 and 412 as general provisions under which rank and file union members not acting on behalf of the union may be disciplined, absent statutory language and legislative history tending to support that broad interpretation. To hold otherwise would render § 412 an open door to the use of the federal courts as a forum of first resort for intraunion disputes unrelated to abuses of union power against members and would allow alternate nonjudicial dispute resolution mechanisms to be sidestepped.

This finding obviates a decision as to the identity of proper plaintiffs under §§ 411-412. Count V fails to state a claim upon which relief may be granted. Count VI, which is a claim for punitive damages based on the allegations of count V, is thus also insufficient. The motion to dismiss counts V and VI is therefore granted. Fed.R.Civ.P. 12(b)(6).

Motion to Join Additional Parties

The court need not address the propriety of joinder in this case, since the rulings on the claims asserted by defendant Local 705 make clear that all of the claims asserted by the putative third-party plaintiffs and against Gosling and the third-party defendant Kesner fail to state a claim. Third-party plaintiffs Colgan, Levato, and Palumbo make the same insufficient allegations of malicious prosecution in their counts I and II as does Local 705 in counts III and IV. Moreover, their LMRDA claims, joined with Local 705’s in counts V and VI, are also insufficient, since Kesner and Gosling are not proper defendants. Joinder under these circumstances would be a futile act. The motion to join additional parties is therefore denied.

Count VII

Local 705 and the individual third-party plaintiffs have offered to withdraw count VII, a claim brought under Fed.R.Civ.P. 11. Since the court is unaware of any implied claim that can be stated thereunder, the court finds this offer—in effect a motion voluntarily to dismiss a claim—wise. Gosling does not object to it. Count VII of the counterclaim is therefore dismissed. This moots Gosling’s motion for a more definite statement on count VII.

Conclusion

The counterclaim is dismissed in its entirety. Gosling’s motion to dismiss is granted, as counts I through VI fail to state claims upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). The motion voluntarily to dismiss count VII is granted.' Local 705’s motion to join additional parties is denied, as such joinder would be futile under the present allegations. Gosling’s motion for a more definite statement is moot.

It is so ordered.

      . The employer is no longer a defendant to this action, having been dismissed with prejudice on April 5, 1985 on Gosling’s motion.


author: DIANA E. MURPHY, District Judge.

text:
    UNITED STATES of America ex rel. SHAKOPEE MDEWAKANTON SIOUX COMMUNITY, Plaintiff, v. PAN AMERICAN MANAGEMENT COMPANY; New England Entertainment Company: Dennis Courtney d/b/a New England Entertainment Company; Alan Arbogast d/b/a New England Entertainment; John Panetta d/b/a New England Entertainment Company; Michael Forschette d/b/a New England Entertainment Company; Little Enterprise; Alfred Estrada, Defendants. LITTLE SIX ENTERPRISES, Plaintiff, v. Donald P. HODEL, Secretary United States Department of Interior, and John W. Fritz, Deputy Assistant Secretary of Indian Affairs, Defendants, and Shakopee Mdewakanton Sioux Community, Intervenor.
    Civ. Nos. 4-85-231, 4-85-880.
    United States District Court, D. Minnesota, Fourth Division.
    Aug. 9, 1985.

      Reid Peyton Chambers, Sonosky, Chambers & Sachse, Washington, D.C., and Larry B. Leventhal and James Townsend, Minneapolis, Minn., for Shakopee Mdewakanton Sioux Community.
    George F. McGunnigle, Leonard, Street & Deinard, Minneapolis, Minn., and Aidan D. Jones, Finley, Kumble, Wagner, Heine, Underberg, Manley & Casey, Washington, D.C., for Pan American Intern. Management Co., New England Entertainment Co., John Panetta, Little Six Enterprises, Alfred Estrada.
    Peter C. Monson, Dept. of Justice, Washington, D.C., and Mary Carlson, Asst. U.S. Atty., Minneapolis, Minn., for Secretary of Interior.
   MEMORANDUM OPINION AND ORDER

DIANA E. MURPHY, District Judge.

These related cases arise out of a dispute over the management agreements for bingo facilities operating on tribal trust lands of the Shakopee Mdewakanton Sioux Community (Community) near Prior Lake, Minnesota.

In the first filed action, Civ. No. 4-85-231, the Community seeks injunctive relief, declaratory judgment, damages, and an accounting, against defendants, several companies that have entered into or been assigned rights in agreements to manage the plaintiffs’ two bingo operations and individuals employed by those companies, alleging that the management agreements have not been approved by the Secretary of Interior as required by 25 U.S.C. §§ 81 and 415, and breach of contract. Jurisdiction is alleged under 28 U.S.C. §§ 1331 and 1362. Defendants Pan American Management Co., Inc., New England Entertainment Company, John Panetta, Little Six Enterprises (Little Six), Alfred Estrada, and Robert Page have filed an amended answer and counterclaim. The counterclaim seeks damages and declaratory and injunctive relief alleging breach of contract, unjust enrichment, detrimental reliance, tortious interference with business relationships, and tortious breach of contract. Presently before the court are the parties’ cross-motions for partial summary judgment and the defendants’ motion for a stay. The Community seeks summary judgment on the issue of whether the management contracts are null and void under 25 U.S.C. § 81 because they have not been approved by the Secretary of Interior. The defendants, with the exception of Little Six, seek summary judgment on the complaint based on lack of subject matter and personal jurisdiction. The defendants also seek a stay of the proceedings pending disposition of the related case before the court, Little Six Enterprises v. Hodel, Civ. No. 4-85-880.

The court has also consolidated before it Civ. No. 4-85-399, an action brought by Little Six Enterprises in state court and removed to federal court by the Community and the individual defendants who are members of the Community. Little Six Enterprises seeks relief similar to that prayed for in the defendants’ counterclaim in this action, but in addition asserts that the members of the Community have made false and malicious statements. It also seeks punitive damages.

In the third related action, Civ. 4-85-880, Little Six seeks mandamus and declaratory and injunctive relief against defendants, Secretary of the Interior Donald P. Hodel, and Deputy Assistant Secretary-Indian Affairs John W. Fritz, (the government), alleging that the June 17, 1985 decision of Fritz disapproving the bingo management contracts was arbitrary and capricious and that the defendants have a ministerial duty to approve the 1983 management agreement. Jurisdiction is alleged under 28 U.S.C. § 1331. The action was filed June 25, 1985 in the district of the District of Columbia and subsequently transferred to this court. The Community sought and was granted leave to intervene as a party-defendant. Presently before the court is the motion of Little Six for preliminary injunctive relief, which has been consolidated with a hearing on the merits under Fed.R.Civ.P. 65(a)(2), and cross-motions by the government and Little Six for summary judgment.

Background

The Community is a federally recognized Indian tribe which has adopted and operates under a Constitution approved by the Secretary of the Interior pursuant to the provisions of the Indian Reorganization Act of 1934, 25 U.S.C. § 476. It is a small Indian community occupying less than 300 acres of tribal land.

On April 10, 1982, defendant New England Entertainment Co. (New England) signed a management agreement with the Community to develop and run a bingo operation on tribal lands. The agreement was negotiated over a three day period. Although Department of the Interior and Bureau of Indian Affairs (BIA) officials were consulted about the agreement, they did not formally approve or reject it at that time.

Counsel for New England who negotiated the contract states that the BIA officials present at the negotiating session represented that the agreement did not require BIA approval and that it was the government’s position that 25 U.S.C. § 81 did not apply to contracts of this type. Mariana Shulstad participated in the negotiations in her role as First Assistant Field Solicitor for the United States Department of the Interior. She states that it was her opinion at the time that, under applicable law, neither she nor the representatives of the BIA had any authority to approve or disapprove the contract. Norman Crooks who signed the agreement as chairman of the community states that he also believed at the time, based on the representations of the government officials, that no approval of the contract was necessary. The agreement specifically notes at the outset that the Community is an organized and federally recognized Indian community. The agreement contains a legal description of the property located on tribal trust land and allows the management company to record the agreement "in any Public Records”. The opening section of the agreement states that the Community is the owner of the described property which it seeks to develop to enhance its economic self-sufficiency and self-government. The Community is also said to be “desirous of vesting in [the management company] the exclusive right and obligation to finance, construct, improve, develop, manage, operate, and maintain the property in conformance with the terms and conditions of this Management Agreement.”

Under the terms of the agreement, the management company was engaged for a term of 15 years “to finance and/or assist the Community in obtaining financing, to construct, improve, develop, manage, operate and maintain the property as a facility for the conduct of bingo games and to create other revenue producing activities upon said property as mutually agreed upon.” Furthermore, the Community:

specifically warrants and represents to [the management company] that Community shall not act in any way whatsoever, either directly or indirectly, to cause this Management Agreement to be altered, amended, modified, cancelled, terminated and/or attempt to assign or transfer this Management Agreement or any right to or interest in said Agreement, without consent of the [management company]. Further, Community warrants and represents it shall take all actions necessary to insure that the Management Agreement shall remain m good standing at all times.

Two provisions specifically limit liens or encumbrances on the property. In the section where the management company is given responsibility to supervise the completion of all the construction and development, the agreement provides that “[i]n no case shall liens or encumbrances attach to the land or structures thereon, which shall at all times remain the property of the Community.” Later in the agreement a provision specifically binding the Community states that the:

Community hereby specifically warrants and represents to [the management company] that Community shall not act in any way whatsoever, either directly or indirectly to cause any party to become an encumbrancer of the property subject to this Agreement without the prior written consent of [the management company] except as provided in this Agreement.

In return for providing the duties contained in the management agreement, New England was to receive “forty-five percent (45%) of the net operating profits for each fiscal year resulting from and in connection with any business activities upon the property.” Initially, however, 100% of the net operating profits was to be applied to retire the debt incurred in constructing and developing the facilities. The management company also has the right to compel the Community to enter into a new management agreement under the same terms and conditions if the Community elects to establish any other bingo activities on other property on its Reservation during the 15 year period of the current agreement.

The bingo operation has operated at a large profit since commencing business and is the major source of revenue and jobs to the Community. The initial debt was repaid within the first year of operation. To date the Community has received approximately $3,321,000 in profit distributions. The parties managing the operations have received approximately $2,685,000 in management fees.

In 1982 New England assigned its interests in the agreement to New England/Pan American Entertainment Company. In 1983 New England/Pan American Entertainment Company assigned its interests to Little Six. Norman Crooks, then chairman of the Community, signed a consent to each of these assignments on behalf of the Community. On July 8, 1983 Little Six executed a new management agreement for the bingo operation. That agreement was also signed by Norman Crooks in his capacity as chairman of the Community. The terms of this agreement are essentially identical to the earlier contract with the addition of a provision for arbitration. The assignments and the new agreement were not submitted to the BIA for approval.

In July 20, 1984 defendant Fritz, Deputy Assistant Secretary-Indian Affairs, issued a memorandum to all BIA area directors indicating that where tribes requested approval of their management contracts, the department should undertake to review them. The memorandum included instructions to be observed in reviewing tribal bingo management contracts. The memorandum noted that given the department’s uncertain authority to promulgate regulations of this nature, and the time it would take to do so, there was no intention to issue regulations at that time. The memorandum states that the instructions were being issued because of the recent decisions of two federal courts holding that 25 U.S.C. § 81 renders tribal bingo management contracts invalid unless they are approved pursuant to that section. The memorandum also noted that it was Fritz’s view and that of the Solicitor’s Office that these decisions were erroneous.

On October 9, 1984, Little Six executed a separate management agreement to develop and manage a new bingo lounge in the Community Cultural Center. As with the other agreements, Norman Crooks signed the agreement in his capacity as chairman of the Community. The terms of the agreement are essentially identical to those in the earlier agreements.

Following the issuance of the July 20, 1984 memorandum by Fritz, Mariana Shulstad recommended to Norman Crooks, as chairman of the Community, that the Community request BIA approval of the bingo management agreements for the bingo lounge and the bingo hall or palace. On October 19, 1984, Crooks wrote the BIA and requested official approval of the bingo lounge agreement and of the 1983 management agreement for the bingo hall.

On December 22, 1984 Crooks was removed as chairman of the Community. Shortly thereafter an investigation into the bingo operations was authorized by the Community which ultimately led to its filing a complaint on February 8, 1985. Little Six in turn filed an action in state court which was then removed to federal court and consolidated with the prior pending action.

On March 5, 1985 the Community filed a motion for summary judgment seeking to have the bingo management agreements held null and void pursuant to 25 U.S.C. § 81 and 415. The motion was withdrawn, however, after the BIA area director issued an opinion on March 8, 1985 approving the 1983 bingo management agreement and disapproving the 1984 bingo lounge management agreement. Both the Community and Little Six appealed the decision within the Department of the Interior: the Community appealing the approval of the 1983 management agreement and Little Six appealing the disapproval of the 1984 bingo lounge management agreement. The Community noted that it would be premature for the court to rule on the validity of the contracts under 25 U.S.C. § 81 until the administrative appeals were decided and the Department of the Interior had made a final administrative determination.

On June 17,1985 Fritz issued his decision on the cross-appeals. The area director’s disapproval of the bingo lounge contract was affirmed, while the approval of the bingo hall contract was reversed. Both contracts were thus disapproved. By letter dated June 20, 1985 the Community renewed its motion for summary judgment, stating that since final administrative action had been taken, the motion was ripe for determination. A hearing on the motion was set for July 17, 1985. On July 3 the defendants filed a cross-motion for partial summary judgment seeking dismissal of all named defendants with the exception of Little Six. This motion was also set for hearing on July 17. Then, on July 15,1985, Little Six filed a motion for a stay of all proceedings in the action brought by the Community pending final disposition of Little Six’s challenge to the Secretary’s decision. These matters were all fully briefed by the parties and heard by the court on July 17, 1985, at which time they were taken under advisement.

On July 2, 1985 the court, after hearing the arguments of the parties, established a briefing schedule in Little Six Enterprises v. Hodel, for the July 17 hearing on Little Six’s motion for a preliminary injunction and on the final merits of the action. Little Six subsequently filed a motion to postpone the “on the merits” briefing and hearing. On July 11, 1985 the court denied the motion, setting forth its reasons in writing and reminding the parties that additional briefing might be allowed after the hearing. Subsequently, the government filed a motion for judgment on the pleadings or in the alternative for summary judgment.

On July 17, a full hearing was had on all issues raised in Hodel by the complaint and the motions before the court. In response to specific inquiry by the court, the parties stated that there are no genuine issues of material fact that would prevent a decision on the merits. Little Six and the government requested and received permission to submit additional briefings on certain issues; those submissions were received by the court on July 22, at which time the matters were taken under advisement. Discussion

A. Little Six v. Hodel

There is a threshold issue of choice of law. This action, originally filed in the District of Columbia, was transferred to this court pursuant to 28 U.S.C.A. 1404(a). The case was transferred by the transferor court, after a conference with counsel for all parties. The parties have spent little effort discussing and briefing what is in effect a non-issue. Ultimately all of the issues raised are governed by the holdings of the Supreme Court, and the court has discerned little or no difference in the controlling precepts of law as enunciated by the respective circuits. The court finds that since the plaintiff may have opposed the motion to transfer, it is proper to apply the law that would have been applied in the transferor court, that being the District of Columbia. See C. Wright, Handbook of the Law of Federal Courts § 44 at 166 (2d ed. 1970).

Standing

Determining whether a party has standing is a “threshold question in every federal case [that] determin[es] the power of the court to entertain the suit.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). Whether a party has standing to obtain review of agency action turns on three factors:

(1) the complainant must allege injury in fact; (2) the complainant must assert that arbitrary or capricious agency action injured an interest arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question; and (3) there must be no “clear and convincing” indication of a legislative intent to withhold judicial review.

National Treasury Employees Union v. United States Merit Systems Protection Bd., 743 F.2d 895, 910 (D.C.Cir.1984); Control Data Corp. v. Baldrige, 655 F.2d 283, 288-89 (D.C.Cir.), cert. denied, 454 U.S. 881, 102 S.Ct. 363, 70 L.Ed.2d 190 (1981); see also Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970).

A plaintiff must meet the element of an injury in fact before he is entitled to obtain relief in federal courts. He must demonstrate an actual or threatened injury caused by the alleged illegal conduct of the defendant which is likely to be redressed by a favorable decision. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). The injury alleged by Little Six is the risk that the management agreements will be found void under 25 U.S.C. § 81 and that it will lose its contractual rights. Little Six asserts that approval by the Deputy Assistant Secretary would insulate it from liability under § 81. This is a threatened injury which can fairly be traced to the challenged conduct of Deputy Assistant Secretary Fritz. If Little Six’s prayer for relief were granted, it would likely redress such injury.

A plaintiff must also be “arguably within the zone of interest to be protected or regulated by the statute ... in question.” Valley Forge, 454 U.S. at 475, 102 S.Ct. at 760 (quoting Data Processing Serv., 397 U.S. at 153, 90 S.Ct. at 830.) The zone of interest test “requires some indicia—however slight—that the litigant before the court was intended to be protected, benefited or regulated by the statute under which suit is brought.” Autolog Corp. v. Regan, 731 F.2d 25, 29 (D.C.Cir. 1984).

It is uncontroverted that the statute, 25 U.S.C. § 81, was enacted solely for the protection and benefit of Indians. Little Six asserts that it satisfies the zone test because the government is attempting under § 81 to regulate its ability to contract with an Indian tribe. Because § 81 requires the Secretary to review contracts within the statutory terms, it argues that it is regulated and that the zone of interest standard has been met. It appears to the court that the statute is concerned with the Indian tribes and their ability to contract, however. The potential economic interest of nonlndians in a contractual relationship with a tribe is not within the intended purview of the statute. See Leaf Tobacco Exporters Ass’n, Inc. v. Block, 749 F.2d 1106 (4th Cir.1984); Granville House, Inc. v. Department of Health and Human Services, 715 F.2d 1292 (8th Cir.Í983); Dialysis Centers, Ltd., 657 F.2d 135 (7th Cir. 1981); cf. Bryan v. Itasca County, 426 U.S. 373, 392, 96 S.Ct. 2102, 2112, 48 L.Ed.2d 710 (1976) (statutes passed for the benefit of dependent Indian tribes are to be liberally construed, doubtful expressions being resolved in favor of the Indians).

The issue of standing was touched on only superficially by the parties although the court provided an opportunity to submit additional briefing on the issue. Based on its own independent review of the case law, the court finds that the precise issue raised here is undecided. The court also finds that it need not discuss this issue further because even if the plaintiff has standing, there are other reasons why the plaintiff cannot prevail.

The government also asserts that judicial review is not available because the Secretary’s action was committed to agency discretion by law. Section 701(a)(2) of the Administrative Procedure Act, 5 U.S.C. § 701 provides that the action of “each authority of ... the United States” is subject to judicial review except where “agency action is committed to agency discretion by law.” This provision precludes judicial review” in those rare instances where statutes are drawn in such broad terms that in a given case there is no law to apply.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 820, 28 L.Ed.2d 136 (1971). Although § 81 simply states that no applicable contract is valid unless approved by the Secretary, the actions of the Secretary are “limited by the fiduciary responsibilities vested in the United States as trustee of Indian lands.” Kenai Oil & Gas Inc. v. Dep’t of Interior, 671 F.2d 383, 386 (10th Cir.1982). As a fiduciary, the Secretary is responsible for acting in the best interest of the Indians and his actions may therefore be reviewed. Id.

Preliminary Injunction

The court has carefully reviewed all of the memoranda, proceedings, and the record herein, and concludes, as the parties have also, that there are no genuine issues of material fact that would preclude the court from finally resolving all issues raised in the complaint. The government stipulated shortly after the action was filed that it would forego taking any action on the basis of Assistant Secretary Fritz's decision until the Tribe’s partial summary judgment motion is decided by the court. Accordingly, based upon that action and the ripeness of the issues for final resolution, the motion for preliminary injunctive relief has been mooted.

Mandamus

Little Six seeks in the first instance, a writ of mandamus under 28 U.S.C. § 1361 directing the Secretary to approve the Bingo Hall Management Agreement. The remedy of mandamus is a drastic one, to be invoked only in extraordinary situations. Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34-35, 101 S.Ct. 188, 189-90, 66 L.Ed.2d 193 (1980); In re GTE Service Corp., 762 F.2d 1024, 1026 (D.C.Cir.1985); Sperry Rand Corp. v. Larson, 554 F.2d 868, 872 (8th Cir.1977). The writ is not available when review by other means is possible. Kerr v. United States District Court, 426 U.S. 394, 403, 96 S.Ct. 2119, 2124, 48 L.Ed.2d 725 (1976); Telecommunications Research and Action Center v. F.C.C., 750 F.2d 70, 78 (D.C.Cir.1984). Review is available in this court under the ordinary statutory review of agency action; therefore, mandamus may not be invoked. Telecommunications Research and Action Center, 750 F.2d at 78. Plaintiff’s arguments that the government is estopped and that the prohibition against ex post facto laws has been violated may be raised in the ordinary course of review. Full relief is available should the court accept those arguments.

Little Six asserts that the government’s past conduct should estop it from taking any action other than approving the 1983 agreement. It also raises several grounds for remand of the Deputy Assistant Secretary’s decision. The standard of review governing these challenges is found in § 706 of the Administrative Procedure Act, 5 U.S.C. § 706. It provides that agency action must be set aside if the action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or failed to meet statutory, procedural, or constitutional requirements. 5 U.S.C. §§ 706(2)(A), (B), (C), (D); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 413-14, 91 S.Ct. 814, 822-23, 28 L.Ed.2d 136 (1971).

Little Six asserts that the government’s participation in the formulation of the 1982 bingo hall agreement and its pre-July 20, 1984 policy not to review bingo management agreements estops it from doing anything other than approving the 1983 agreement. The government asserts that it cannot be estopped by actions or statements of a government employee or agent and that, in any event, Little Six has failed to establish the necessary elements of estoppel.

“It is well settled that the Government may not be estopped on the same terms as any other litigants.” Heckler v. Community Health Servs., 51 U.S. 467, 104 S.Ct. 2218, 2224, 81 L.Ed.2d 42 (1984). It remains an open question whether estoppel may in any circumstance run against the Government. Id.; Leimbach v. Califano, 596 F.2d 300, 305 (8th Cir.1979) (estoppel will not lie against the government for the misrepresentations of its agents). This court need not reach that issue, however, because a careful review of the record and case authority establishes that Little Six has not made out the necessary elements for estoppel against the Government. Little Six must at a minimum establish that the traditional elements of an estoppel are present. Heckler v. Community Health Servs., 104 S.Ct. at 2224. Traditionally, for estoppel to lie:

(1) The party to be estopped must know the facts; (2) he must intend that his conduct shall be acted on or must so act that the party asserting the estoppel has a right to believe it is so intended; (3) the latter must be ignorant of the true facts; and (4) he must rely on the former’s conduct to his injury.

Morris v. Andrus, 593 F.2d 851, 854 (9th Cir.1978), cert. denied, 444 U.S. 863, 100 S.Ct. 133, 62 L.Ed.2d 86 (1979); see also Heckler v. Community Health Servs., 104 S.Ct. at 2223.

Little Six fails to satisfy this test. The agency did not know at the time the bingo hall agreements were executed whether the language of § 81 would be interpreted to include such agreements. Thus, it, as well as the other parties, was unaware of facts essential to any claim of estoppel. No facts were concealed or known by the agency that were unknown to the plaintiffs. Furthermore, at no time did the agency represent that either bingo agreement was in the best interest of the Community or that it would be approved if presented to the Secretary for review. Cf. United, States v. Huebner, 752 F.2d 1235,1244 (7th Cir.1985) (before estoppel will apply against the government, the alleged estopping statements must be in writing and must be made by officials at a policy-making level).

At the time of the negotiations New England was aware of § 81 and of the agency’s practice not to review bingo agreements. It chose to proceed with the management agreement and to obtain the agency’s tacit approval of any such agreement. To the extent the plaintiffs relied on the agency’s current interpretation of the statute, it assumed the risk that that interpretation was in error. Heckler v. Community Health Servs., 104 S.Ct. at 2226 n. 17; Emery Mining Corf. v. Sec. of Labor, 744 F.2d 1411 (10th Cir.1984). The agency had no power, simply by announcing its interpretation, to deprive the courts of their duty to construe the statute and to discern and implement Congress’ intent. Lerner v. Gill, 751 F.2d 450 (1st Cir.), cert. denied, — U.S. —, 105 S.Ct. 2709, 86 L.Ed.2d 724 (1985); 'McCauley v. Thygerson, 732 F.2d 978 (D.C.Cir.1984).

The plaintiffs also have difficulty satisfying the requirement of detrimental reliance because they have collected over two million dollars in net profits from the bingo operations. If the contracts had been submitted when executed, it is very possible in light of the Secretary’s decision that the agreements would have been rejected at their inception and no profits whatsoever would have accrued to the plaintiffs. See Heckler v. Community Health Servs., 104 S.Ct. at 2225; Tennessee ex rel. Leech v. Dole, 749 F.2d 33.1, 337-38 (6th Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 3480, 87 L.Ed.2d 615 (1985).

Furthermore, the narrow constraints in which some courts might allow estoppel against the government do not exist here. See, e.g., Heckler v. Community Health Servs., 104 S.Ct. at 2224 n. 12; id. at 2228 (Rehnquist, J., concurring). At a very minimum some affirmative misconduct by a government agent is required as a basis of estoppel. See, e.g., United States v. River Coal Co., 748 F.2d 1103, 1108 (6th Cir.1984); Emery Mining Corf, v. Sec. of Labor, 744 F.2d at 1417 n. 7. The plaintiffs have failed to make any showing of such misconduct. Moreover, estoppel simply will not run against the government when it acts, as it did here, as trustee for an Indian tribe. See, e.g., State of New Mexico v. Aamodt, 537 F.2d 1102, 1110 (10th Cir.1976), cert. denied, 429 U.S. 1121, 97 S.Ct. 1157, 51 L.Ed.2d 572 (1977); United States v. Ahtanum Irrigation Dist., 236 F.2d 321, 334 (9th Cir.1956), cert. denied, ,352 U.S. 988, 77 S.Ct. 386, 1 L.Ed.2d 367 (1957).

Little Six also contends that the application of the instructions was retroactive and thus an abuse of discretion. Obviously, it was a change in department policy when the BIA began reviewing bingo management agreements in 1984. The court has already found that the agency’s conformance to contemporaneous court decisions on the scope of § 81 is not a basis to estop it, however. In that same light, it was not an abuse of discretion for the Secretary to apply the July 1984 instructions in rendering a decision on agreements submitted for his approval in October of 1984. The agency simply responded to court rulings that clarified unsettled and unchartered law. “Retroactive clarification of uncertain law ordinarily involves no unfairness. ‘It is retroactive change of settled law, not retroactive settling of unsettled law, which may produce unjust results.’ ” Anderson, Clayton & Co. v. United States, 562 F.2d 972, 985 n. 30 (5th Cir.1977), cert. denied, 436 U.S. 944, 98 S.Ct. 2845, 56 L.Ed.2d 785 (1978) (quoting K. Davis, Administrative Law Text, § 5.05, 135 (3d ed. 1972)). Furthermore, if an interpretative regulation merely elucidates a meaning that has resided in the statute since its enactment, it is misleading to term it retroactive. Id. “It is no more retroactive ... than is a judicial determination construing and applying a statute to a case in hand.” Manhattan General Equip. Co. v. Commissioner of Internal Revenue, 297 U.S. 129, 135, 56 S.Ct. 397, 400, 80 L.Ed. 528 (1936). Here, the Secretary has clarified his general trust duty to act in the best interests of the Indian tribe, a duty in existence at the time § 2103, now § 81, was enacted in 1871.

This is the same standard that was applicable to § 81 in 1982 when the first management agreement was executed. It was not an abuse of discretion to .apply that standard to bingo management agreements through use of the instructions, in response to federal court decisions construing § 81 to be applicable to such agreements. See Bradley v. Richmond School Bd., 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974) (a court is to apply the law in effect at the time it renders its decision); S.E.C. v. Chenery Corp., 332 U.S. 194, 203, 67 S.Ct. 1575, 1580, 91 L.Ed. 1995 (1947) (every case of first impression has a retroactive effect, whether the new principle is announced by a court or by an administrative agency). Furthermore, the application of the instructions furthers the intent of Congress that the Secretary ensure that contracts under § 81 are in the best interests of Indian tribes. See S.E. C. v. Chenery Corp., 332 U.S. at 203, 67 S.Ct. at 1580.

For these same reasons, Little Six’s contention that the application of the instructions to the 1983 management agreement violates the ex post facto clause is without merit. The Deputy Secretary’s utilization of the instructions simply was not retroactive application of law “which imposes a punishment for an act which is not punishable at the time it was committed, or imposes additional punishment to that then prescribed.” Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981) (quoting Cummings v. Missouri, 4 Wall. 277, 325-26, 18 L.Ed. 356 (1867)). Section 81 is a civil, not a penal, statute and was enacted long before the conduct challenged here. While an ex post facto challenge to the criminal statute, 18 U.S.C. § 438, which imposes criminal penalties for violations of § 81 might raise more substantive issues, the challenge to the civil provision does not. See Harisiades v. Shaughnessy, 342 U.S. 580, 594, 72 S.Ct. 512, 521, 96 L.Ed. 586 (1952).

Little Six asserts that the June 17 decision should be remanded because the Department applied the July 20, 1984 Instructions to the 1983 bingo hall agreement as substantive regulations but did not promulgate them in accordance with the notice and comment procedures of the Administrative Procedure Act, 5 U.S.C. § 553. The government argues that the instructions were issued in conformance with 5 U.S.C. § 553(b) because they are interpretive rules or general statements of policy for which no publication or hearing is required.

Section 5 U.S.C. § 553(b) establishes notice and comment requirements for substantive rulemaking, but specifically states that such requirements do not apply:

(A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or
(B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.

An interpretative rule simply explains and sets forth that which the administrative agency thinks the statute already requires. General Motors Corp. v. Ruckelshaus, 742 F.2d 1561, 1565 (D.C.Cir. 1984), cert. denied, — U.S. —, 105 S.Ct. 2153, 85 L.Ed.2d 509 (1985). A general policy statement is agency action that does not establish a binding norm, but announces the agency’s tentative intentions for the future. General policy statements must leave the agency free to exercise informed discretion. Iowa Power & Light Co. v. Burlington Northern, Inc., 647 F.2d 796, 811 (8th Cir.1981), cert. denied, 455 U.S. 907, 102 S.Ct. 1253, 71 L.Ed.2d 445 (1982). In contrast, a rule should be considered to be a legislative rule if by its action the agency intends to create new law, rights, or duties. General Motors Corp., 742 F.2d at 1565.

Deputy Assistant Secretary Fritz labeled the memorandum as “instructions” and indicated that due to the BIA’s uncertain authority to promulgate regulations of this nature, and the time it would take to do so, he did not intend to issue regulations at that time. The agency’s own label is indicative, but not dispositive. Chamber of Commerce v. Occupational Safety and Health Administration, 636 F.2d 464, 468 (D.C.Cir.1980). Rather, the issue ultimately turns on the substance of what the agency has done. The court has carefully reviewed the agency’s actions in the July 20, 1984 letter and finds that it is not a legislative rule as it did not have the intent or effect of creating new law, rights, or duties. Rather, the letter was the agency’s construction of its statutory duty under § 81 to determine if submitted gambling agreements were in the best interests of the Indian tribes. This is a requirement imposed by the statute itself, and the instructions are interpreting that statutory duty. See Kenai Oil & Gas, Inc., 671 F.2d 383 (10th Cir.1982); Leaf v. Udall, 235 F.Supp. 366, 367-68 (N.D.Cal.1964). Under these circumstances, the July 20, 1984 memorandum is not a legislative rule. Accordingly, notice and comment procedures were not required.

Little Six also attacks the merits of the Secretary’s decision, arguing that the record reveals no rational basis for the decision and thus is arbitrary and capricious. The government contends that the decision is not only rational, but is the clearly correct decision based on the record. In deciding whether agency action was arbitrary and capricious, “the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error in judgment.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. at 416, 91 S.Ct. at 823. “Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.” Id.

The Secretary found in disapproving the 1983 bingo hall agreement that, considering all the factors discussed in his order, the agreement was not in the best interests of the tribe. The Secretary noted that the failure of the agreement to comply with certain principles addressed in instructions 2, 4, and 18 of the July 20, 1984 memorandum “is a fairly clear indication that the contract is not in the Community’s best interest.” The Secretary also considered evidence of interference by Little Six in tribal governmental affairs. Finally, he noted that the community’s opposition to the management agreement is “entitled to great weight ... in light of the well-established federal policy recognizing a government-to-government relation with the tribes and favoring tribal self-determination.”

The court concludes that the agency has articulated, and there exists, a rational basis for the decision. For the reasons already stated, the Deputy-Secretary’s use of the instructions was permissible. Little Six’s vehement argument against application of the instructions is meritless because, with or without the written instructions, the Deputy-Secretary acting in his trust capacity for Indian lands, must seek the best interests of the Indian tribe. The Secretary brings to bear on the review process his experience and expertise, and the instructions are merely a formal recitation of the decisionmaking process that the agency employs with or without such instructions. The Secretary’s finding that the contract should not be approved, because of its 15 year term with no provision for renegotiation of the 45% management fee, has a rational basis. This finding was based not on a technical violation of an instruction, but rather because, in the Secretary’s judgment, there is “serious potential for unfairness to tribes in long-term inflexible management contracts.” Contrary to Little Six’s assertions, the Secretary did consider the economics and risks underlying this type of business venture, but concluded that “[although a high fee might be justified at the outset of a contract to offset risks taken by the management company, such justification would not normally be expected to continue throughout a contract period of several years duration”, here, 15 years.

The Secretary also gave great weight to the Community’s opposition to the agreement, and that factor in and of itself may be a sufficient basis for the Secretary to conclude the contracts were not in the best interest of the tribe. See Ho-Chunk Management Corp. v. Fritz, 618 F.Supp. 616 (W.D.Wis., 1985) (Shabaz, J.). Coupled with the other noted grounds for disapproval, it is evident that a proper review and judgment was made by the Secretary and his disapproval of the contracts was not arbitrary or capricious.

B. United States of America ex rel. Shakopee Mdewakanton Sioux Community v. Pan American Management Company, et al.

Before the court are cross-motions for summary judgment and defendants’ motion for a stay. A motion for summary judgment may be granted if the pleadings and affidavits show that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). In passing upon a motion for summary judgment, the court is required to view the facts in the light most favorable to the party opposing the motion and to give that party the benefit of all reasonable inferences to be drawn from the underlying facts disclosed in pleadings and affidavits. Butler v. Buechler, 706 F.2d 844, 846 (8th Cir.1983); Ralph’s Distributing Co. v. AMF, Inc., 667 F.2d 670 (8th Cir.1981); Vette Co. v. Aetna Casualty & Surety Co., 612 F.2d 1076 (8th Cir.1980). Disputes involving the interpretation and application of unambiguous contracts and statutory language, such as this motion, are appropriate cases for summary judgment. Jackson v. Roosevelt Federal Savings & Loan Ass’n, 702 F.2d 674, 684 (8th Cir.1983); Parish v. Howard, 459 F.2d 616, 618 (8th Cir.1972).

Jurisdiction

Defendants argue that the court lacks personal jurisdiction over the parties because no valid and effective service was made on any of the defendants. It asserts that plaintiff’s motion must be denied, and the complaint dismissed under Fed.R.Civ.P. 4(j), because service was not made within 120 days after the filing of the complaint.

Service of process was made at the bingo hall by leaving copies of the summons and complaint for all defendants with Henry F. Ulrich, the Deputy General Manager for the Little Six Bingo Palace. Little Six Bingo Palace is owned by the Community and managed by Little Six Enterprises under the 15 year agreement at issue in this litigation. Ulrich works under the direction of the General Manager, Robert Page, and assists in supervising the overall operation. Affidavit of Henry F. Ulrich. Ulrich has day-to-day management responsibilities for the operation of the Little Six Bingo Palace. Under the management agreement between Little Six and the Community, Little Six has the responsibility to employ, direct, control, and discharge all personnel at the Bingo Palace. Furthermore, the agreement places the exclusive right to develop, manage, and operate the bingo property in Little Six Enterprises.

Service of process upon Ulrich was proper to establish personal jurisdiction over the partnership, Little Six Enterprises. Fed.R.Civ.P. 4(d)(3) provides that service shall be made upon a partnership,

by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or boy law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant.

Service upon Ulrich qualifies as service upon “a managing or general agent” within the meaning of Fed.R.Civ.P.' 4(d)(3). He had substantial authority and responsibility in the partnership’s activities within the state, making it reasonable to assume that he would transmit notice of the commencement of the action to the partnership. C. Wright & A. Miller, b Federal Practice & Procedure § 1103 (1969); 2 Moore’s Federal Practice ¶ 4.22[2], It is also persuasive that his employment and the entire bingo operation was under the absolute control and direction of Little Six Enterprises. Notice is the keystone to proper service under Rule 4(d)(3), and there is no doubt that Little Six Enterprises was adequately informed of the commencement of this action. Van Hoven Co., Inc. v. Stans, 319 F.Supp. 180, 182 (D.Minn.1970).

Service on a managing agent is only valid against the partnership, however. Jurisdiction over a partnership does not confer jurisdiction over a partner or other defendant unless the partner is properly served. Olsen v. Puntervold, 338 F.2d 21, 22 (5th Cir.1964); Ford Motor Co. v. Sylte, 188 Minn. 578, 579, 248 N.W. 55, 56 (1933); Antiel v. V.W.E. Investments, 353 N.W.2d 681, 683 (Minn.Ct.App.1984), review denied, Minn.S.Ct., January 9, 1985. The service upon Ulrich was the only service made. Accordingly, all defendants other than the partnership have not been properly served and should be dismissed under Fed.R.Civ.P. 4(j).

Little Six also argues that the court lacks subject matter jurisdiction over the 1983 Management Agreement because the plaintiffs complaint alleges only that the 1982 and 1984 agreements should be voided. The Community asserts the 1983 agreement is essentially identical to and is a successor of the 1982 agreement and that the injunctive relief requested to remove Little Six gives fair notice. All that is required under the Federal Rules of Civil Procedure is “ ‘a short and plain statement of the claim’ that will give the defendants fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957). The complaint filed by the Community fully satisfies the “notice pleading” requirements by generally presenting the circumstances, occurrences and events in support of the claim being presented, and the relief sought. C. Wright & A. Miller, J Federal Practice and Procedure §§ 1201, 1205 (1969). Construed in light of the precept that “all pleadings shall be so construed as to do substantial justice,” the complaint withstands this challenge by Little Six. Fed.R. Civ.P. 8(f).

§ 81

The Community’s motion for summary judgment seeks to have the bingo hall and bingo lounge management contracts declared null and void under 25 U.S.C. § 81. Section § 81 provides in relevant part

No agreement shall be made by any person with any tribe of Indians, or individual Indians not citizens of the United States, for the payment or delivery of any money or other thing of value, in present or in prospective, or for the granting or procuring any privilege to him, or any other person in consideration of services for said Indians relative to their lands, or to any claims growing out of, or in reference to, annuities, installments, or other moneys, claims, demands, or thing, under laws or treaties with the United States, or official acts of any officers thereof, or in any way connected with or due from the United States, unless such contract or agreement be executed and approved as follows:
* * * * * * *
Second. It shall bear the approval of the Secretary of the Interior and the Commissioner of Indian Affairs indorsed upon it.
* * * * * * *
All contracts or agreements made in violation of this section shall be null and void.

The bingo management agreements for the hall and the lounge have both been disapproved by the Deputy Assistant Secretary of Interior-Indian Affairs, thus if § 81 is applicable to the agreements they are void.

Little Six argues that § 81 only applies to contracts between tribes and attorneys or claims-agents relating to lobbying the government. It argues that this interpretation is supported by the case law, legislative history, and administrative interpretation. It reads statutory language so that the portion of § 81 covering “services for said Indians relative to their lands is limited by the subsequent language “under the laws and treaties of the United States.” The Community argues on the other hand that the plain language of the statute, legislative history, and subsequent interpretations by the courts and the agency support application § 81 to all contracts “relative to” Indian lands.

“The starting point in every case involving construction of a statute is the language itself.” Ernst & Ernst v. Hochfelder, 425 U.S. 185, 197, 96 S.Ct. 1375, 1382, 47 L.Ed.2d 668 (1976). Section 81 is drafted broadly to encompass any agreement made by “any person” involving payment in consideration “of services for ... Indians relative to their lands or to any claims growing out of, or in reference to, annuities, installments, or other monies, claims demands, or thing, under laws or treaties with the United States, or official acts of any officers thereof, or in any way connected with or due from the United States”. The plain meaning of the statute is that its provisions apply either to agreements relative to their lands, “or” alternatively, to claims by the tribes growing out of the listed events and arising “under laws or treaties with the United States.” See F. Cohen, Handbook of Federal Indian Law 281.

Little Six asserts that this last phrase should be construed to be a limitation upon the first type of agreements, those relative to Indian lands, as well as upon claims growing out of annuities and other demands. The statute does not support such a narrow construction, however. The broad language “relative to their lands” evidences the intent of Congress to cover almost all land transactions in Indian property. See Central Machinery Co. v. Arizona State Tax Comm’n, 448 U.S. 160, 166, 100 S.Ct. 2592, 2596, 65 L.Ed.2d 684 (1980) (“Until Congress repeals or amends the Indian ... statutes ... we must give them ‘a sweep as broad as their language’ and interpret them in light of the Congress that enacted them.” (Indian trader statutes)); Wisconsin Winnebago Business Committee v. Koberstein & Ho-Chunk Management, 762 F.2d 613, 618 (7th Cir. 1985). The language “relative to their lands” is clear and complete and stands apart from the alternative language which follows the word “or”. Interpreting it to stand independent of the subsequent clauses is consistent with the broad introductory language. In contrast, the subsequent language of “any claims ... or other monies, claims, demands, or thing,” is not self-contained or specifically defined and is clearly modified by the provision “under laws or treaties.” Interpreting § 81 to apply to all contracts relative to Indian land is also consistent with the longstanding policy of regulating all transactions in Indian land, which predates this country’s formation as an independent nation. Id.; F. Cohen, Handbook of Indian Law 508-09 (1982).

This interpretation of § 81 is supported both by recent case law and by earlier decisions. In Wisconsin Winnebago Business Committee, the Seventh Circuit in reviewing the applicability of § 81 to an almost identical bingo management agreement held that it was obvious from the language of the statute that it was intended to cover almost all land transactions in Indian property. Wisconsin Winnebago Business Committee, at 618; see also Flandreau Indian Management Co. v. Flandreau Santee Sioux Tribe, Civ. 84-4055 (D.S.D. April 11, 1984) (Jones, J.). In Green v. Menominee Tribe, 233 U.S. 558, 34 S.Ct. 706, 58 L.Ed. 1093 (1914), the Supreme Court held that an oral contract between an Indian tribe and a trader for supplies to be used in logging Indian land
was so clearly within the text of the statute that it suffices to direct attention to such text without going further. But if it be conceded for argument’s sake that there is ambiguity involved in determining from the text whether the statute is applicable, we are of the opinion that the case as made is so within the spirit of the statute and so exemplifies the wrong which it was intended to prevent and the evils which it was intended to remedy as to dispel any doubt otherwise engendered.

Id. at 569, 34 S.Ct. at 710. Little Six puts forth alternative interpretations of the Green decision, but the court finds the language to be straightforward. Green supports the proposition that the plain meaning of § 81 compels its application to contracts relative to Indian lands.

Where the language of a statute is sufficiently clear in its context, it controls without resort to the more tangential aid of legislative history. Ernst & Ernst v. Hochfelder, 425 U.S. 185, 201, 96 S.Ct. 1375, 1384, 47 L.Ed.2d 668 (1976). The language of § 81 placed within the context of federal oversight of Indian land is controlling and conclusive. The court has nevertheless reviewed the parties’ extensive analysis of the legislative history and administrative interpretations. Unquestionably, these materials can give rise to conflicting interpretations. Careful consideration of the parties’ arguments and the legislative history against the backdrop of the statutory language and federal policy of regulating Indian land transactions leads the court to conclude that § 81 was intended to be applicable to contracts for services relative to Indian lands.

There is no dispute that the main impetus behind the enactment of § 81 was the fraud and abuse being inflicted upon Indian tribes by attorneys and claim agents allegedly representing their interests before the federal government. See, e.g., Cong.Globe, 41st Cong.3d Sess. 1483-87. The overriding evil which Congress sought to address and protect the Indians from was “improvident and unconscionable contracts.”. In re Sanborn, 148 U.S. 222, 227, 13 S.Ct. 577, 579, 37 L.Ed. 429 (1893). The contractual relations with attorneys and claims agents were foremost on Congress’ mind because they provided many sordid examples of the exploitation of Indians by nonlndians. . Yet, Congress also considered and debated whether the provision totally prohibited Indians from making contracts and noted in several places the expansive and alternative nature of the language adopted. See Cong.Globe, 41st Cong., 3d Sess. 1486 (Section 81 “would prevent such contracts ... in any matter relating to the land or annuities that they hold under or derive from the United States”) (Section 81 “is limited to such agreements or services as are made or rendered relative to the lands of the Indians or to any claim against annuities from or treaties with the United States”.)

The debates indicate that Congress intended the broad language incorporated in § 81 and that the language should be given its full meaning. The application of § 81 to contracts relative to Indian lands is drawn from the literal language of the statute and, furthermore, is fully consistent with Congress’ concern for the protection of Indians from nonlndians. Wisconsin Winnebago Business Committee, at 617-619; cf. Sedima S.P.R.L. v. Imrex Co., — U.S. —, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985) (the fact that RICO has been applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth); Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390, 395 n. 16, 88 S.Ct. 2084, 2087 n. 16, 20 L.Ed.2d 1176 (1968) (“While statutes should not be stretched to apply to new situations not fairly within their scope, they should not be so narrowly construed as to permit their evasion because of changing habits due to new inventions and discoveries.”)

The court next must turn to whether the bingo management agreements are “agreement[s] ... relative to [Indian] land.” A careful review of the management agreements shows them to be inextricably tied up in the property rights flowing from the establishment of the bingo operations on tribal trust lands. The very existence of the bingo operations arises from the Indian tribe’s sovereignty over tribal trust lands which makes state gaming laws inapplicable to games on reservations. See Wisconsin Winnebago Business Committee, at 616 n. 3. This is the very reason why bingo can be profitably offered by the Community. But for its land, state law would not permit it. The agreements give the management company the absolute right to control the construction, development, maintenance, and operation of the property. The legal description of the tribal property encompassed by the agreement is specifically included in an appendix to the agreement. The agreement also extends to any other bingo facilities established on tribal trust lands during the lifetime of the contract. Little Six is given the right to record the agreements “in any Public Records” and the Community is prohibited from directly or indirectly causing “any party to become an encumbrancer of the property subject to this Agreement without the prior written consent of [Little Six].”

In Wisconsin Winnebago Business Committee virtually identical contractual language was held to be “relative to Indian land” under § 81. This court finds the reasoning of that case persuasive and holds that the agreements numerous ties with the land makes them “relative to [Indian] lands.” If there is any doubt in the applicability of § 81 it is resolved by several canons of statutory construction rooted in the “unique trust relationship between the United States and the Indians.” Oneida County v. Oneida Indians, — U.S. —, 105 S.Ct. 1245, 1258, 84 L.Ed.2d 169 (1985). Thus, statutes “passed for the benefit of dependent Indian tribes ... are to be liberally construed, doubtful expressions being resolved in favor of the Indians.” Bryan v. Itasca County, 426 U.S. 373, 392, 96 S.Ct. 2102, 2112, 48 L.Ed.2d 710 (1976) (quoting Alaska Pacific Fisheries v. United States, 248 U.S. 78, 89, 39 S.Ct. 40, 42, 63 L.Ed. 138 (1918); see also McClanahan v. Arizona Tax Commission, 411 U.S. 164, 174, 93 S.Ct. 1257, 1263, 36 L.Ed.2d 129 (1973). Furthermore, ambiguous provisions are to be interpreted to the Indian tribe’s benefit. Montana v. Blackfeet Tribe of Indians, — U.S. —, 105 S.Ct. 2399, 2403-04, 85 L.Ed.2d 753 (1985).

Little Six raises the defense of estoppel and asserts that application of § 81 to the agreements would be violative of the ex post facto clause and unconstitutionally vague. For the reasons stated previously the Community is not estopped to assert § 81, and the statute’s application is not an ex post facto violation. See also Green v. Menominee Tribe, 233 U.S. 558, 570-71, 34 S.Ct. 706, 710-11, 58 L.Ed. 1093 (1914) (no estoppel). Section 81 is also not unconstitutionally vague under the due process clause of the Fifth Amendment. Its literal language conveyed sufficiently definite warnings for parties contracting with Indian tribes when measured by common understanding or practice. Horn v. Burns & Roe, 536 F.2d 251, 254 (8th Cir.1976). Its language is not so “vague and indefinite as really to be no rule or standard at all.” Id. (quoting A.B. Small Co. v. American Sugar Refining Co., 267 U.S. 233, 239, 45 S.Ct. 295, 297, 69 L.Ed. 589 (1925)).

The court has carefully considered the statutory provisions and the undisputed language of the agreements at issue and finds that even when evaluating the facts in the light most favorable to Little Six, the plaintiff is entitled to judgment as a matter of law declaring the management agreements null and void under 25 U.S.C. § 81.

In sum, the court finds that in Little Six Enterprises v. Hodel, Civ. 4-85-888, the defendants are entitled to summary judgment on all counts and the action should be dismissed with prejudice. In United States of America ex rel. Shakopee Mdewakanton Sioux Community, Civ. 4-85-231 the court finds that all defendants other than Little Six should be dismissed. The court also finds that the Community is entitled to partial summary judgment because as a matter of law the bingo management agreements are null and void under § 81.

ORDER

Accordingly, based on the above and all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that

1. The motion in Civ. No. 4-85-880 of defendants Donald P. Hodel and John W. Fritz for summary judgment is granted, and the action is dismissed with prejudice in its entirety as to all defendants.

2. The motions in Civ. No. 4-85-880 of plaintiff Little Six Enterprises for preliminary injunctive relief and summary judgment are denied.

3. The motion in Civ. No. 4-85-231 of defendants Pan American Management Company, New England Entertainment Company, John Panetta, and Alfred Estrada is granted to the extent that the complaint is dismissed against them without prejudice under Fed.R.Civ.P. 4(j). In all other respects defendants’ motion for partial summary judgment and sanctions is denied.

4. The motion in Civ. No. 4-85-231 of plaintiff United States of America ex rel. Shakopee Mdewakanton Sioux Community for partial summary judgment is granted, and the management agreements between Little Six Enterprises and the Shakopee Mdewakanton Sioux Community for the bingo hall and bingo lounge are hereby declared null and void.

5. The motion of defendants in Civ. No. 4-85-231 for a stay pending final disposition of Civ. No. 4-85-880 is denied as moot.

LET JUDGMENT BE ENTERED ACCORDINGLY.

      . The answer states that the correct corporate name is Pan American International Management Co., Inc.

      . The parties have by stipulation and order of the court dated May 13, 1985 dismissed Robert Page as a defendant without prejudice.

      . In 1980, the Community had adopted a resolution authorizing the Community Chairman, Norman Crooks, to take all steps necessary to bring a bingo operation to the reservation.

      . Apparently, counsel for New England was previously aware that the BIA did not approve management agreements for bingo halls, but "it was his practice to meet with the [BIA] to get its tacit approval of any management agreement, although there was no necessity for it.” Affidavit of Barry E. Rosenthal ¶ 4.

      . The court has issued several orders relating to the Community’s initial motion for a preliminary injunction and actions taken by Little Six and the Community in response to the BIA Area Director's disapproval of the bingo lounge agreement and approval of the 1983 bingo hall agreement. For purposes of these motions, that background and the court's previous memoranda opinions need not be detailed again. On April 17, 1985 the court ordered Little Six to provide the Community with its share of the March net operating profits for the bingo hall. On that same date the court also appointed Thomas A. Keller, III, Esq. as special master.

      . This court had been informed in a telephone call from the transferor court prior to transfer that no party opposed transfer. The court began the July 2, 1985 telephone conference with counsel for all parties by stating this factual predicate to its understanding of the case, and no party took issue with this characterization of the transfer.

      . Issuance of the writ is also in large part a matter of discretion with the court to which the petition is addressed. Kerr, 426 U.S. at 403, 96 S.Ct. at 2124.

      . Of course, plaintiffs lack of standing to assert violations of § 81, would not provide a basis to proceed by mandamus. The plaintiffs claims for mandamus derive from its allegation that the government is estopped by its earlier interpretation of § 81 and that it therefore has a ministerial duty to approve the agreement. Thus, if plaintiff has no standing under § 81, there is no jurisdiction to hear this claim either.

        . The review process under § 81 is initiated by submission of the proposed contract to the area director of the BIA and then is finally reviewed by the Deputy Assistant Secretary of the Interi- or-Indian Affairs. Although lower level department and BIA officials were present at the contract negotiations for the bingo hall, they had no authority to review the contract. The agreements were first submitted to the BIA for review in October of 1984.

      . For these same reasons, Little Six’s estoppel argument in the action brought by the Community also fails.

      . The instructions were issued on July 20, 1984; the agreements between Little Six and the Community were not submitted for approval until October 1984. The Secretary indicated in his decision that the instructions were intended to govern approvals of contracts, not the execution of contracts. Thus, under this view, the instructions predated the submission of the contracts in October of 1984, and the issue of retroactivity is mooted.

      . The letter indicates that it was being issued in response to two recent federal court decisions holding that 25 U.S.C. § 81 renders tribal bingo management agreements invalid unless approved pursuant to that section. The letter indicates Fritz’s view that those decisions are erroneous, but the letter is not addressed to that issue. Rather, its purpose is to indicate that in cases where tribes now request approval of their management contracts, the BIA should undertake to review them, and to provide instructions that should be observed in reviewing those contracts. The letter also contains statements evidencing a tentative and nonbinding nature. It requests that recommendations for revisions be submitted and states that amended instructions will be issued as necessary. Amendments to the instructions were in fact issued on April 9, 1985. Instruction 21 also evidences that Area Directors possess discretion in making a decision to approve or reject the contract.

      . Little Six asserts that because of the involvement of a department attorney in the initial contract negotiations where these terms were agreed upon, it should be assumed that the contract would have been approved by the Secretary if it had been submitted for review in 1983. It is undisputed that the department attorney had no authority to approve or disapprove the contract, however; the power to review lay first with the Area Director and ultimately with the Deputy Assistant Secretary—Indian Affairs. The Secretary’s application of the best interest standard provides reason to believe that the same conclusions would have been reached at an earlier review, however.

      . Additional grounds were put forth by the Secretary for not approving the contract. One basis was that the agreements were submitted by then chairman Norman Crooks rather than by tribal resolution as required by instruction 2. The Secretary also found that the contracts did not require the management company to abstain from interfering in tribal government as required by instruction 18, and in fact such interference had occurred. Little Six contends that these findings are erroneous and that instruction 18 may be violative of first amendment rights. Since the Secretary's decision is amply supported by the other asserted grounds, it is unnecessary to decide the constitutional arguments raised by Little Six.
      The government takes the position that Little Six has challenged only the decision disapproving the 1983 management agreement. The complaint filed by Little Six seeks in part to have the June 17, 1985 decision of the Deputy Assistant Secretary declared null and void. Thus, the language of the complaint and requested relief encompasses both the decision to disapprove the 1983 and to disapprove the 1984 agreement. The Secretary’s decision on the 1984 agreement, as well as the 1983 agreement, should be upheld on the present record.

      . See 1983 Bingo Management Agreement. A managing or general agent need not be an employee of the defendant organization. 2 Moore’s Federal Practice ¶ 4.22[z]. No rigid rule can be laid down as to who is "a managing or general agent", and the court must closely analyze the facts and circumstances in the particular case. Id.; C. Wright & A. Miller, 4 Federal Practice & Procedure § 103 392 (1969).

      . The court finds that the assertions of claims against these defendants were not in bad faith nor frivolous. Accordingly, Little Six's request for attorneys’ fees and costs and Rule 11 sanctions is denied.

      . In Sac and Fox Tribe v. Apex Constr. Co., Inc., 757 F.2d 221 (10th Cir.1985), the court held it need not decide if § 81 governed the construction contract at issue because it found the statute not applicable to Economic Development Administration grant monies. The district court had held that § 81 was not applicable because the statute’s purpose is "to protect Indian people from dissipating their lands through agreements for imaginary services costing exhorbitant amounts.” Id. at 222. To the extent the district court’s reasoning in Sac and Fox Tribe might differ with that in Winnebago and in this action, it is rejected.

      . The parties each argue and dissect the varied interpretations given § 81 by the Department of the Interior. The administrative treatment is for the most part not contemporaneous with the passage of § 81 and is inconclusive at best.

      . It is obviously not the case that every contract with Indian tribes would require § 81 approval. Little Six’s argument that application of § 81 here would lead to this result is simply incorrect. The bingo management agreements contain numerous provisions, as stated above, that specifically implicate Indian lands in the performance of the contracts and relate Little Six services to the land. Furthermore, the very existence of this type of operation is wholly dependent on the Indian land.

      . Because the court finds the management agreements void under § 81 it need not reach whether the agreements are void under the other statutory provisions put forth by the Community. The Community also notes in its memoranda that it has filed motions to dismiss the counterclaims and consolidated complaint filed by Little Six. Those motions were held in abeyance during the administrative appeals; if the Community wishes to renew them, it should schedule them on the court’s hearing calendar.