author: HEAD, District Judge.

text:
    UNITED STATES of America v. John B. ELDER.
    Crim. No. B-84-276.
    United States District Court, S.D. Texas, Brownsville Division.
    Feb. 13, 1985.

      Gilberto Hinojosa, Brownsville, Tex., Daniel Sheehan, Washington, D.C., Lisa Brodyaga, Harlingen, Tex., for John Elder.
    Robert L. Guerra, Asst. U.S. Atty., McAllen, Tex., for U.S.
   OPINION ON MOTIONS TO DISMISS

HEAD, District Judge.

I. INTRODUCTION

The United States accused the Defendant John B. Elder of unlawfully transporting three undocumented Salvadoran aliens in violation of 8 U.S.C. § 1324(a)(2). Elder filed various motions to dismiss, including motions based on freedom of religion, domestic and international.refugee law, selective prosecution, and estoppel. He also filed a motion to suppress based on an allegedly improper showup. After extensive pretrial evidentiary hearings, the Court, in open court, denied all motions to dismiss and the motion to suppress. This opinion discusses only those motions which the Court feels are sufficiently unique to merit a written opinion.

II. FACTS

Elder is the director of the Casa Oscar Romero (Casa Romero), named in honor of the assassinated Roman Catholic Archbishop of El Salvador. Casa Romero, located in San Benito, Cameron County, Texas, provides assistance and shelter to Central Americans, principally Salvadorans, who have fled Central America and entered the United States. Elder considers these persons “refugees” under the Refugee Act of 1980, Pub.L. 96-212, 94 Stat. 102, and international law. Elder regards Casa Romero as a sanctuary in the biblical sense. The testimony indicated that the Casa Romero was founded in December, 1982, on land donated by the Roman Catholic Diocese of Brownsville. Parishes and congregations of various religious affiliations donated seed money and continue to provide financial support for the Casa Romero. The Roman Catholic Diocese of Brownsville plays a financial and leadership role in the operation of the Casa Romero.

On March 12, 1984, Elder transported three undocumented Salvadorans six miles from the Casa Romero to a bus station in Harlingen, Texas, within the Rio Grande Valley. Without permission or documentation, these aliens together had entered the United States earlier that same day in the vicinity of the Matamoros-Brownsville International Bridge. The Salvadorans then walked twenty-five miles to San Benito, where they were directed to the Casa Romero. After they ate and rested at the Casa Romero, the Salvadorans asked Elder for a ride to the Harlingen bus station. The Salvadorans planned to go north to Houston on the bus through the Border Patrol checkpoint located north of Harlingen on U.S. Highway 77. Elder complied with the Salvadorans’ request by taking them to the Continental Trailways Bus Station in Harlingen. Elder knew of the Salvadorans’ plan to go to Houston.

Two Border Patrol agents saw the three Salvadorans get out of Elder’s vehicle in front of the bus station. After the agents recorded the license plate number of the vehicle, the agents detained the Salvadorans and took them to the Harlingen Border Patrol office. A license plate check revealed that the car was registered to Elder. An agent of the Immigration and Naturalization Service (INS) later returned the Salvadorans to the Casa Romero, where the Salvadorans identified Elder. At the pretrial evidentiary hearing, the Salvadorans and the Border Patrol agents identified Elder as the driver of the vehicle.

III. MOTION TO DISMISS — FREEDOM OF RELIGION

Elder contends that his First Amendment right to exercise religion entitles him to put into practice his religious beliefs, which includes providing shelter and transportation for Salvadoran aliens, even if those practices clash with the statutory prohibitions of 8 U.S.C. § 1324(a)(2). Courts have recognized that the exercise of religious freedom can sometimes excuse criminal conduct, see Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); People v. Woody, 61 Cal.2d 716, 40 Cal.Rptr. 69, 394 P.2d 813 (1964); however, the Supreme Court has determined that the enforcement of criminal laws can be constitutionally achieved even if the laws interfere with the religious practices of individuals. See Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940); Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944); Reynolds v. United States, 8 Otto 145, 98 U.S. 145, 25 L.Ed. 244 (1878). The First Amendment “embraces two concepts — freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be.” Cantwell v. Connecticut, 310 U.S. at 303-04, 60 S.Ct. at 903.

Recent court decisions describe the appropriate analysis to resolve the conflict between the prohibitions of a criminal statute and the perceived mandates of religious practice. Elder bears the initial burden to demonstrate that religious beliefs motivated his conduct. The burden then shifts to the Government to justify placing limitations on the religious conduct. The Government must show that such limitations are essential to accomplish a compelling governmental interest. The limitation on religion must not exceed the least burdensome method of accomplishing the Government’s purpose without infringing First Amendment rights. Peyote Way Church of God, Inc. v. Smith, 742 F.2d 193, 200 (5th Cir.1984); see United States v. Lee, 455 U.S. 252, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982); Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972).

When a defendant presents evidence to meet his initial burden, the Court must be careful and deferential in examining the Defendant’s beliefs. The Supreme Court notes that the determination of what constitutes a religious belief or practice presents “a most delicate question.” Wisconsin v. Yoder, 406 U.S. at 215, 92 S.Ct. at 1533. The Court should neither interpret canon law nor define the parameters of a religion. See Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707, 715-16, 101 S.Ct. 1425, 1430-31, 67 L.Ed.2d 624 (1981).

The Court finds that Elder has met his initial burden. He is a Roman Catholic who feels a charitable Christian commitment, founded in the Gospel, which motivates him to assist those who flee the violence in El Salvador. Elder presented the testimony of various Christian clergymen who confirmed that assistance to those in need remains a fundamental aspect of Christianity. Bishop John Fitzpatrick, Bishop of the Roman Catholic Diocese of Brownsville, testified that meeting material human needs represents an essential aspect of Christianity, and that each individual remains free to fulfill this obligation according to the directives of his or her own conscience. Although no law of the Roman Catholic Church specifically requires Roman Catholics to provide sanctuary or rides to Salvadorans, Bishop Fitzpatrick believes that providing such assistance constitutes an appropriate expression of the Christian gospel. According to the testimony of the various ministers, this conclusion also holds true in other denominations. These ministers included Donovan Cook of the American Baptist Church, James Andrews of the Presbyterian Church, John Steinbrook of the Lutheran Church, and Gilbert Dawes and John Soper of the United Methodist Church. The Government called no witnesses to oppose the testimony of these ministers.

Elder feels a religious commitment to assist Salvadorans because of the political turbulence in that country. An insurgent movement currently exists in El Salvador which continues to battle government forces. Elder filed numerous statements from alleged eyewitnesses who describe a brutal situation in El Salvador. According to these statements and testimony in court, the conflict in El Salvador has resulted in much violence and many atrocities directed at the civilian population from both sides. The testimony contains graphic descriptions of torture, murder, brutalities, and disappearances. The violence has included church workers among its victims.

Although the Court has no reason to doubt the description of tragedy and horror in El Salvador, the Court need only find that Elder believed that such violence actually occurred. This Court has no responsibility to make factual findings concerning the situation in El Salvador. The Court need not make any foreign policy judgments in order to conclude that, in assisting the Salvadorans, Elder acted in accordance with his personal view of Christianity. The Bishop of the Brownsville Diocese believes that Elder is a religious man who practiced his Roman Catholicism when he transported the Salvadorans. According to the Bishop, as a practicing Roman Catholic, the expression of Elder’s inner religious thoughts can properly be evidenced by charitable social action, such as assistance to undocumented Central Americans.

The Court understands that other members of the Roman Catholic faith may oppose Elder’s activist response to the situation in Central America. The Court emphasizes that it is not an arbiter of canon law. The Court simply finds that Elder fulfilled his Christian obligations as he genuinely perceived them to be and that Elder presented substantial testimony to support his view of Christianity. This Court’s conclusions are not intended to define the Christian Gospel or Christian response to it. The Court need not correctly interpret Christian doctrine in order to hear the position of the Defendant.

Because Elder meets his initial burden, the Government must show an overriding interest to justify prosecution. The Court finds that the Government meets its burden to demonstrate an overriding interest in protecting a congressionally-sanctioned immigration and naturalization system designed to maintain the integrity of this Nation’s borders. In discussing the importance of United States’ immigration laws, the Supreme Court has repeatedly emphasized the importance which sovereign nations place upon controlling entry through their borders. In Kleindienst v. Mandel, 408 U.S. 753, 765, 92 S.Ct. 2576, 2583, 33 L.Ed.2d 683 (1972), the Supreme Court agreed that controls over immigration are “inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers — a power to be exercised exclusively by the political branches of government____” In Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1478, 52 L.Ed.2d 50 (1977) [quoting Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339, 29 S.Ct. 671, 676, 53 L.Ed. 1013 (1909)], the Supreme Court underscored the limited role of the judiciary with respect to immigration and reemphasized that “ ‘over no conceivable subject is the legislative power of Congress more complete than it is over’ the admission of aliens.”

The ability to control entry and to identify those admitted remains vital to the welfare and security of the people. See The Japanese Immigrant Case, 189 U.S. 86, 96-97, 23 S.Ct. 611, 613, 47 L.Ed. 721 (1903); Boutilier v. Immigration and Naturalization Service, 387 U.S. 118, 123-24, 87 S.Ct. 1563, 1567, 18 L.Ed.2d 661 (1967). Circumvention by individuals of the congressionally-prescribed procedure for entry, even if religiously motivated, undermines the historically legitimate goals of immigration control. Protection of the borders represents a national obligation fulfilled by the Government for the benefit of all Americans. See The Chinese Exclusion Case, 130 U.S. 581, 603-07, 9 S.Ct. 623, 629-30, 32 L.Ed. 1068 (1889). Elder’s do-it-yourself immigration policy, while charitable, gives away what is not his to give away — the Government’s legitimate right to examine every person who enters the country so that the Government can make informed decisions on who will be admitted.

The United States retains interests in immigration control for security reasons. Richard Casillas, District Director for the INS in San Antonio, Texas, explained that potential immigrants must submit a biographical data sheet for review by law enforcement agencies. The goal of this system of immigration control is to prevent entry by enemies of the state, criminals, and other classifications of immigrants which Congress determines to be undesirable. Without a functional system, the country remains unable to inquire and therefore powerless to control. The INS also faces problems with counterfeit identification and documentation obtained by aliens who wish to assimilate into American society. Casillas testified that the INS recently redirected its limited resources to deal with the growing problem of undocumented aliens who make fraudulent applications to receive benefits under entitlement programs.

The parties presented conflicting evidence concerning the beneficial or harmful impact exerted by undocumented workers upon the labor market and the national economy. David North, an immigration researcher who testified for the Government, concluded that undocumented aliens drained social resources, depressed wages, displaced minority and women workers, and impeded technological development in some sectors of the economy. Thomas Muller, an expert for the defense, found that undocumented immigrants filled unwanted jobs and helped to create new jobs and prosperity. Another defense expert, Gilberto Cardenas, testified that undocumented aliens adversely affected local funds for social services, but that the State of Texas as a whole received a net benefit from contributions paid by undocumented aliens into the state’s social programs. This existing controversy among experts proves, first, that the economic impact of illegal immigration remains unresolved and, second, that the Court should not resolve the dispute. As long as the issue persists, Congress remains entitled to examine the immigration question and to pass legislation to address the problems which Congress discovers. Congress may direct the executive to account for each individual who enters the country and to make appropriate decisions in the best interest of all Americans.

The Court must also analyze whether the Government utilizes the least burdensome method to accomplish its purpose in securing the Nation’s borders. The Court finds that the Government must retain the sole authority to determine who may cross the borders or travel further within the country. If the Government attempted to accommodate into its immigration policy Elder’s religious beliefs, the Government’s efforts would result in no immigration policy at all. As testimony from Defendant’s witnesses indicated, the moral obligation to assist others crosses religious and denominational lines. These widely-held beliefs allow adherents to exercise considerable discretion and would permit religious individuals to form personal immigration policies. See United States v. Lee, 455 U.S. at 259-60, 102 S.Ct. at 1056-57. Elder wishes to limit this Court’s view solely to the violence in El Salvador; however, the human condition remains miserable in many parts of the globe. Man’s inhumanity to man, as well as nature’s, has been unrelenting throughout history. Many people live on this planet who logically are no less worthy of Elder’s Christian charity than the Salvadorans. The consciences of others religiously motivated may conclude that the starving and impoverished of North Africa, Asia, or Mexico are equally entitled to enter this country without review by the INS.

Obviously all cannot enter. Congress has recognized in its immigration policy that the United States cannot absorb all who wish to enter this country to take advantage of its relative tranquility and bounty. Congress has therefore established appropriate standards and procedures by which to determine proper entry. The Government, as the representative of all Americans, must retain the sole authority and responsibility to make these hard decisions and has put a system into place which individuals, without regard to their motivations, cannot be allowed to evade. See The Chinese Exclusion Case, 130 U.S. at 603-09, 9 S.Ct. at 629-31.

The United States accepts applications for asylum from all nationalities, in-eluding Salvadorans, under a procedure which takes into account the social and political conditions which exist in their homelands. See generally Refugee Act of 1980, Pub.L. 96-212, 94 Stat. 102. Title 8 U.S.C. § 1158(a) authorizes the Attorney General to establish a procedure for asylum, see 8 C.F.R. §§ 208.1-208.16 (1984), which provides protection to applicants who fall under the statutory definition of refugee. Title 8 U.S.C. § 1101(a)(42)(A) includes as refugees those persons unable or unwilling to return to their native countries “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion____” A potential refugee may enter the country and apply for asylum with the local District Director of the INS. See 8 C.F.R. § 208.3(a). All potential refugees also receive the opportunity to submit applications for asylum during exclusion or deportation proceedings before an immigration judge. See C.F.R. §§ 208.3(a), 208.9. Those denied asylum by an immigration judge may appeal the decision within the INS. The testimony indicates that some Salvadorans have petitioned for and received asylum. Petitioners who are denied asylum have recourse to all levels of the federal courts for review of the decision, see Ramirez-Osorio v. Immigration and Naturalization Service, 745 F.2d 937, 946 n. 15 (5th Cir.1984), including the United States Supreme Court. See Immigration and Naturalization Service v. Stevic, — U.S. -, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984).

This Court finds that implementation of the immigration laws represents an important Government interest which, on balance, justifies enforcement of § 1324(a)(2) against Elder. The Court also finds that the Government utilizes the least burdensome method by which to accomplish its goals, especially since nothing in this decision prohibits the exercise of Christian charity to those who present themselves before the INS to apply for asylum and who proceed under INS rules. See United States v. Pereira-Pineda, 721 F.2d 137 (5th Cir.1983). The Court accordingly denies the motion to dismiss based on free exercise of religion.

IV. MOTIONS TO DISMISS UNDER DOMESTIC AND INTERNATIONAL LAW

Elder introduces various motions to dismiss based on domestic and international refugee law. Elder’s motions based on domestic law essentially argue that 8 U.S.C. § 1253(h) entitled the Salvadoran aliens that he transported to remain in the United States because they fall under the definition of refugee. Section 1253(h), as amended by the Refugee Act of 1980, provides that the Attorney General “shall not deport or return any alien ... to a country if the Attorney General determines that such alien’s life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion.” Elder asserts that because the Salvadorans he transported qualified for protection as refugees, the Government cannot prove that the aliens were present unlawfully, an essential element of § 1324(a)(2). See United States v. Shaddix, 693 F.2d 1135, 1137-38 (5th Cir.1982). The Defendant argues that his assistance to the Salvadorans remained perfectly legal, and he requests dismissal of the indictment.

The Court refuses the invitation to circumvent the statutory scheme and declines to dismiss the indictment. Fifth Circuit law clearly holds that before Salvadoran aliens may reside legally within this country they must submit applications for asylum with the Government. United States v. Pereira-Pineda, 721 F.2d 137 (5th Cir.1983); see Martinez-Romero v. Immigration and Naturalization Service, 692 F.2d 595, 595-96 (9th Cir.1982). The Defendant essentially asks the Court to make a finding of fact concerning the refugee status of the Salvadorans. Title 8 U.S.C. § 1158 and § 1253(h), however, authorize the Attorney General to determine the refugee status of an individual. The statutes do not permit either the Court or the Defendant to determine the refugee status of the Salvadorans, nor can the Court submit such an issue to a jury. Under the statutory scheme, the decision lies exclusively with the Attorney General, subject to appropriate avenues of judicial review. See Ramirez-Osorio v. Immigration and Naturalization Service, 745 F.2d 937, 946 n. 15 (5th Cir.1984).

The Defendant also argues that international laws and treaties automatically entitle the aliens to receive refugee status without regard to our own national laws. The Court concludes that Congress intended the Refugee Act of 1980 to fulfill its obligations under international law, see Immigration and Naturalization Service v. Stevic, — U.S.-, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984), and this Act designates the Attorney General to determine refugee status. Congress also indicated that the Government should review applications from Salvadorans on a case-by-case basis. See Pub.L. 97-113, § 731, 95 Stat. 1519. The Court cannot interfere with political decisions which the United States as a sovereign nation chooses to make in the interpretation, enforcement, or rejection of treaty commitments which affect immigration. See The Chinese Exclusion Case, 130 U.S. 581, 9 S.Ct. 623 (1889); Botiller v. Dominguez, 130 U.S. 238, 247, 9 S.Ct. 525, 527, 32 L.Ed. 926 (1889); Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1478, 52 L.Ed.2d 50 (1977); 74 Am.Jur.2d Treaties §§ 14, 36 (1974). The Court accordingly denies Defendant’s motions to dismiss under domestic and international refugee law.


source: Caselaw Access Project

author: SKINNER, District Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff, v. Richard E. BYNUM, et al., Defendants.
    Crim. No. 84-206-S.
    United States District Court, D. Massachusetts.
    Sept. 13, 1984.
    Oliver C. Mitchell, Jr., Asst. U.S. Atty., Boston, Mass., for plaintiff.
    Willie J. Davis, Boston, Mass., for defendants.
   ORDER ON MOTIONS TO SUPPRESS OF DEFENDANTS ARTIS HOWELL, SHARY HOWELL, STAFFORD, TUBBS AND WILLIAMS

SKINNER, District Judge.

The above-named defendants have moved to suppress evidence of intercepted telephone conversations on four grounds:

1. The assistant attorney general who authorized the interception was not properly designated by the attorney general.

2. The assistant attorney general relied entirely on the recommendation of a subordinate and did not exercise independent judgment.

3. A second application necessitated by a change in the number assigned to the targeted telephone failed to specifically name several defendants as participants in the suspected criminal activity although by this time their identities were known.

4. The wiretap was actually conducted by state police officers who had been temporarily appointed deputy United States marshals.

The application for the wiretap was authorized by Stephen S. Trott, who at all material times was the assistant attorney general in charge of the Criminal Division. On January 19, 1981, the then attorney general, Benjamin Civiletti, designated the assistant attorney general in charge of the Criminal Division to exercise the power conferred on the attorney general to approve wiretap applications in accordance with 18 U.S.C. § 2516. Order No. 931-81. Oh February 27,1981, the then and present attorney general, William French Smith, entered another order, 934-81, a copy of which is attached hereto as Appendix A. There is no need to consider whether Order No. 931-81 survived the change of administration because it is specifically continued in force by Smith’s Order No. 934-81. The purpose of 934-81 is to provide an interim designee pending the appointment of a chief of the Criminal Division. Designation by title is sufficient. United States v. Pellicci, 504 F.2d 1106 (1st Cir.1974), cert. denied, 419 U.S. 1122, 95 S.Ct. 805, 42 L.Ed.2d 821 (1975). I conclude that the application was duly authorized.

The defendant Tubbs has submitted a statement of Frederick D. Hess, Director, Office of Enforcement Operations, Criminal Division, United States Department of Justice, which details the administrative review of wiretap applications prior to their submission to the Chief of the Criminal Division for his approval. Nothing contained therein seems to me to impugn the validity of his approval or to undermine his individual responsibility therefor.

The failure to name some of the known participants in the alleged crime in the second application, while a violation of the statute, is not grounds for suppression of the wiretap evidence. United States v. Donovan, 429 U.S. 413, 434, 97 S.Ct. 658, 671, 50 L.Ed.2d 652 (1977). Nothing in United States v. Diltz, 622 F.2d 476 (10th Cir.1980) suggests the contrary, except the court’s paraphrase of defendants’ argument at page 480. Later on the same page, the court cites United States v. Donovan, supra and then makes the following statement.

The Supreme Court, while recognizing that the identification requirement was important, said that failure to comply fully with the provision of that section did not render unlawful an intercept order that in all other respects satisfied the statutory requirements.

The Diltz case in fact turned on another issue, whether the government had probable cause to believe that the particular defendant was a participant in the crime at the time of the application.

The most troublesome issue is that of the use of state police officers to operate the wiretap equipment, because 18 U.S.C. § 2516 authorizes interceptions by the FBI “or a Federal agency having responsibility for the offense as to which the application is made____” Temporary appointment of the officers as deputy marshals avails nothing, since the marshals service has no responsibility for the investigation of drug offenses. It appears, however, from the affidavits of Assistant United States Attorney Mitchell and Agent Murphy that the state police were instructed by the federal agents and under their close supervision during the period of the electronic interception. There is no authority in this circuit. The only authority cited favors the government’s position. United States v. Lyons, 507 F.Supp. 551 (D.Md.1981) aff'd 695 F.2d 802 (4th Cir.1982). While I have some serious questions about the propriety of this practice, I am nevertheless persuaded by the careful opinion of the district judge in that case, which was adopted as its own by the Court of Appeals of the Fourth Circuit.

Accordingly, the motion to suppress is DENIED.

APPENDIX A

Office of the Attorney General

Washington, D.C. 20530

SPECIAL DESIGNATION OF ASSISTANT ATTORNEY GENERAL IN CHARGE OF THE OFFICE FOR IMPROVEMENTS IN THE ADMINISTRATION OF JUSTICE TO AUTHORIZE APPLICATIONS FOR COURT ORDERS AND TO APPROVE EMERGENCY INTERCEPTIONS OF WIRE AND ORAL

COMMUNICATIONS UNDER CHAPTER 119, TITLE 18, UNITED STATES CODE

Order No. 934-81

Section 1. By virtue of the authority vested in me as Attorney General by 28 U.S.C. 509, 510, 5 U.S.C. 301, and 18 U.S.C. 2516, 2518(7) I hereby specially designate the Assistant Attorney General in charge of the Office for Improvements in the Administration of Justice (1) to exercise the power conferred by Section 2516 of Title 18, United States Code, to authorize applications to a Federal judge of competent jurisdiction for orders authorizing the interception of wire or oral communications by the Federal Bureau of Investigation or a Federal agency having responsibility for the investigation of the offense as to which such application is made, when such interception may provide evidence of any of the offenses specified in Section 2516 of Title 18, United States Code, and (2) when I am not in the District of Columbia or am otherwise not available, to exercise the power conferred by Section 2518(7) of Title 18, United States Code, to approve an emergency interception of wire or oral communications in accordance with the statutory requirements.

Sec. 2. Attorney General Order No. 931-81 of January 19, 1981 is hereby corrected, effective January 19,1981, by deleting from the sixth line on the second page thereof the number “2510(7),” a typographical error, and substituting therefor “2518(7).” Attorney General Order No. 931-81 remains in effect.

Sec. 3. The designation made in Sec. 1 of this order shall terminate at such time as an Assistant Attorney General in charge of the Criminal Division, appointed with the advice and consent of the Senate, enters upon duty.

/s/ William French Smith

William French Smith

Attorney General

Date Feb. 27, 1981.


text:
    Anthony MEOLA, Plaintiff, v. Joseph E. MACHADO, Defendant.
    Civ. A. No. 83-3574-S.
    United States District Court, D. Massachusetts.
    Oct. 5, 1984.

      Michael D. Cutler, Goodwin & Cutler, Boston, Mass., for plaintiff.
    J. Richard Ratcliffe, Zisson & Veara, Boston, Mass., for defendant.
   MEMORANDUM AND ORDER

SKINNER, District Judge.

The plaintiff, Anthony Meóla, brought this action against a state trooper, Joseph E. Machado in both his individual and official capacities (“Machado”), alleging that Officer Machado used excessive force in arresting plaintiff for a traffic violation and unnecessarily detained him while he was in need of medical attention. The complaint alleges violations of plaintiff’s constitutional rights, his rights under 42 U.S.C. §§ 1983 and 1981, and various torts against his person. Defendant Machado, on August 1, 1984, filed this motion for judgment on the pleadings on the grounds that plaintiff’s claims are barred by the Eleventh Amendment to the United States Constitution, and alternatively, that plaintiff has not alleged facts that could support a violation of his constitutional rights. For the reasons stated in this opinion, defendant’s motion is DENIED.

The Eleventh Amendment provides that

The Judicial power of the United States shall not be constructed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by citizens or Subjects of any Foreign State.

In particular, this amendment has long been understood to prohibit federal courts from adjudicating suits brought by a citizen against his own state, absent an express waiver of immunity. Pennhurst State School & Hospital v. Halderman, _ U.S. _, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984); Hans v. Louisiana, 134 U.S. 1, 10-11, 10 S.Ct. 504, 505, 33 L.Ed. 842 (1890). In addition to barring suits against states, the Eleventh Amendment also bars suits against state officials when “the state is the real, substantial party in interest.... Thus, ‘the general rule is that relief sought nominally against an officer is in fact against the sovereign if the decree would operate against the latter.’ ” Pennhurst, 104 S.Ct. at 908. (citations omitted). Relief “operates against the sovereign” when, among other things, “the judgment sought would expend itself on the public treasury or domain....” Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963). (citation omitted).

In the case at bar, plaintiff Meóla is suing Officer Machado in both his individual and official capacities. The defendant argues, however, that the unusual position enjoyed by Massachusetts troopers renders any distinction between individual and official capacities irrelevant here. As noted in defendant’s memorandum of law, Massachusetts General Laws chapter 258, § 9A provides, in part, that

The commonwealth shall indemnify members of the state police ... from all personal financial loss and expenses, including but not limited to legal fees and costs, if any, in an amount not to exceed one million dollars arising out of any claim, action, award, compromise, settlement or judgment resulting from any alleged intentional tort or by reason of an alleged act or failure to act which constitutes a violation of the civil rights of any person under federal or state law; provided, however, that this section shall apply only where such alleged intentional tort or alleged act or failure to act occurred within the scope of the official duties of such police officer. No member of the state police ... shall be indemnified for any violation of federal or state law if such member acted in a wilful, wanton or malicious manner.

On this basis, the defendant concludes that if the conduct complained of here falls within the ambit of § 9A, the state must indemnify Officer Machado for any judgment in plaintiff’s favor. And, since such a judgment would necessarily “expend itself on the public treasury”, Dugan v. Rank, supra, plaintiff’s suit is barred by the Eleventh Amendment.

It is clear, however, that under § 9A, the state has declined to indemnify any officer who has acted in a “wilful, wanton or malicious manner”. Indeed, defendant Machado admits in his Memorandum of Law that “in such a situation, the state would not be the real party in interest and the action would not be barred by the Eleventh Amendment”. (Defendant’s Memorandum, p. 9). Therefore, the applicability of Eleventh Amendment immunity turns upon whether Officer Machado’s conduct falls within the protection of M.G.L. c. 258, § 9A.

Arguing by analogy to federal civil rights statutes, the defendant asserts that the term “wilful” as used in M.G.L. c. 258, § 9A, implies a specific intent to deprive a plaintiff of a federally protected right. Defendant’s analysis, however, fails to account for the fact that the entire phrase “wilful, wanton or malicious” is stated in the alternative. Thus, even if defendant’s proposed definition of the term “wilful” is accepted, the plain language of the statute appears to exclude from state indemnity any conduct taken by officers with “malice” or in “bad faith”. In his complaint, plaintiff alleges that trooper Machado was “abusive and assaultive” and that such actions were taken “in bad faith and with malice toward the plaintiff”. Such allegations, if proved, would suffice to deprive defendant of any statutory indemnity.

Because plaintiff has alleged actions by defendant Machado which fall outside the indemnity provisions of M.G.L. c. 258, § 9A, the defendant cannot assert the Eleventh Amendment as a bar to this action. Accordingly, defendant’s motion for judgment on Eleventh Amendment grounds is DENIED.

Defendant Machado further argues that plaintiff’s complaint fails to state a cause of action for a violation of constitutional rights. In order to defeat this motion, plaintiff must allege facts which, if proved, would establish that the conduct complained of was committed under color of state law and that this conduct deprived the plaintiff of federal and constitutional rights, privileges or immunities. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981). There is no dispute that the complaint involved here states allegations of conduct under color of state law. The sole issue, therefore, is whether that conduct may have deprived plaintiff of some federally protected right. I find that plaintiff’s complaint does state a claim for violation of his constitutional rights.

Our court of appeals has stated that “we take it as established that, in appropriate circumstances, the use of excessive force or violence by law enforcement personnel violates the victim’s constitutional rights”. Landrigan v. City of Warwick, 628 F.2d 736, 741 (1980). See also, Schiller v. Strangis, 540 F.Supp. 605 (D.Mass.1982). While it is true, as defendant argues, that not all unlawful force used by state law enforcement personnel rises to the level of a constitutional violation, I find that the conduct described in plaintiffs complaint and deposition would be sufficiently egregious, if proved, to rise to a constitutional level.

Specifically, plaintiff stated in his deposition that after the defendant stopped him for a routine traffic violation:

He [the defendant] rushed me and pushed me right to the front seat of my car, which my head went right down to the seat. He was right on top of me and he pulled out his gun and he says, you son of a bitch, if you make one move I’ll kill you. — At that time I didn’t know what color it [the gun] was. All I know it was a canon facing my face, and he told me to put my hands behind my back, which I did. I said, what’s the matter with you? I’m not a criminal. — I said, what — have you gone crazy? I put my hands behind my back so tight. He pulled me out of the car, and he walked me to the cruiser — . And when I got in front of his cruiser, he opened up his door and he punched me right in the left shoulder and down I went on both knees, and he picked me right up and pushed me right in there in the front seat. And he took a belt, and he put that belt to the lower part of my body and he tightened it so tight that my body in a matter of minutes was numb. — After he tied me, he walked away. — After being there five, six seven minutes, or something like that, my body and hands were so sore and numb, I started to holler. I was calling for the police officer to come over to give me some relief because I was suffering. I was in tears. He came over and I told him, I says, please, would you release the handcuffs a little. They’re so tight. I says, I’m not a young man. I am sixty-six years of age, I told him. He just said, shut up and stop hollering, and he walked away.

(quoting plaintiff’s Memorandum of Law, pp. 2-3).

At this stage of the proceedings, it is not necessary to determine whether a constitutional line was actually crossed by Officer Machado in his treatment of plaintiff Meola. All that is required is to analyze whether, for the purposes of a motion under Fed.R.Civ.P. 12(c), the defendant is entitled to judgment as a matter of law. In my opinion he is not. Accordingly, the motion for judgment on the pleadings is DENIED with respect to the plaintiff’s claim under 42 U.S.C. § 1983. Insofar as the complaint purports to state a claim under 42 U.S.C. § 1981, defendant’s motion for judgment on the pleadings is ALLOWED.


author: DAVID L. RUSSELL, District Judge.

text:
    Loyal W. FURRY and Bobbie Furry, Plaintiffs, v. FIRST NATIONAL MONETARY CORPORATION; Joseph A. Pick, and Mike Norwood, Defendants.
    No. CIV 84-323-R.
    United States District Court, W.D. Oklahoma.
    Oct. 23, 1984.

      Stephen D. Halfhill, Field & Halfhill, Alexandria, Va., William H. Mattoon, Norman, Okl., for plaintiffs.
    Kenneth F. Silver, Simon, Deitch, Siefman, Tucker & Friedman, Southfield, Mich., James W. Shepherd and Nancy M. Thompson, Andrews, Davis, Legg, Bixler, Milsten & Murrah, Oklahoma City, Okl., for defendants.
   ORDER

DAVID L. RUSSELL, District Judge.

The Plaintiffs brought this action against the Defendants to redress alleged violations of the Commodity Exchange Act, 7 U.S.C. § l-§ 26 (1982), and the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961-§ 1968 (1982). The Defendant Pick has motioned the Court pursuant to Fed.R.Civ.P. 12(b)(2) and Fed.R. Civ.P. 12(b)(5) to dismiss the Complaint as against him for lack of in personam jurisdiction and insufficiency of service of process. All three Defendants have motioned the Court pursuant to Fed.R.Civ.P. 12(b)(3) to dismiss for improper venue. In the alternative, the Defendants urge the Court to transfer this action to the United States District Court for the Eastern District of Michigan, Southern Division pursuant to either 28 U.S.C. § 1404(a) (1982) or 28 U.S.C. § 1406(a) (1982). As the Court finds the Motion to Transfer for improper venue under 28 U.S.C. § 1406(a) dispositive of the case as it stands before this Court, only that motion will be addressed in this Order.

The Plaintiffs in this action are Oklahoma citizens who have maintained a non-discretionary commodities trading account with the Defendant brokerage. The investment transaction has its genesis in an agreement executed between the parties, the following provision of which is relevant to the Motion to Transfer:

[T]he undersigned further acknowledges and agrees that the formation of this Agreement constitutes the making of a contract within the State, of Michigan; that Michigan is a mutually reasonably convenient place for any trial concerning disputes arising out of this Agreement and further agrees to submit to the jurisdiction of the Courts in the State of Michigan with respect to claims arising out of this Agreement.

The Defendants, all Michigan citizens, argue that under the foregoing provision the Plaintiffs have contractually surrendered their right to lay venue in any forum other than a Michigan court. The Plaintiffs, on the other hand, advance two arguments that the “choice of forum” provision does not prohibit entertaining the action in this forum: (1) The provision is unenforceable; and (2) The provision is at best permissive and does not mandate that Plaintiffs bring their action in a Michigan forum.

Forum selection clauses are prima facie valid and should be enforced unless they can be shown to be unreasonable under the circumstances of the case. The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 9-12, 92 S.Ct. 1907, 1912-14, 32 L.Ed.2d 513 (1972); Dracos v. Hellenic Lines Ltd., 705 F.2d 1392, 1394 (4th Cir.1983); Bense v. Interstate Battery Systems of America, 683 F.2d 718, 721-2 (2nd Cir.1982); In re Fireman’s Fund Insurance Companies, Inc., 588 F.2d 93, 95 (5th Cir.1979); Intermountain Systems, Inc. v. Edsall Construction Co., 575 F.Supp. 1195, 1197 (D.Colo.1983); D’Antuono v. CCH Computax Systems, Inc., 570 F.Supp. 708, 711 (D.R.I.1983); Richardson Greenshields Securities, Inc. v. Metz, 566 F.Supp. 131, 133 (S.D.N.Y.1983); Richardson Engineering Co. v. International Business Machines Corp., 554 F.Supp. 467, 468-9 (D.Vt.1981), aff'd 697 F.2d 296 (2nd Cir.1982); Kline v. Kawai America Corp., 498 F.Supp. 868, 871 n. 1 (D.Minn.1980). Cf. Scherk v. Alberto-Culver Co., 417 U.S. 506, 519, 94 S.Ct. 2449, 2457, 41 L.Ed.2d 270 (1974); Merrill Lynch, Pierce, Fenner & Smith v. Lecopulos, 553 F.2d 842, 844 (2nd Cir.1977). Provisions in a contract selecting a forum act as a waiver of statutory provisions which would normally determine the appropriated forum. E.g., In re Fireman’s Fund, 588 F.2d at 95, citing National Equipment Rental Ltd. v. Szukhent, 375 U.S. 311, 84 S.Ct. 411, 11 L.Ed.2d 354 (1964). Thus, the Defendants’ Motion to Transfer made pursuant to 28 U.S.C. § 1406(a) (1982) is cognizable on the issue of the efficacy of the forum selection clause. D’Antuono, 570 F.Supp. at 710; Full-Sight Contact Lens v. Soft Lenses, Inc., 466 F.Supp. 71, 73 (S.D.N.Y.1978); A.C. Miller Concrete Products Corp. v. Quickset Vault Sales Corp., 309 F.Supp. 1094, 1095 (E.D.Pa.1970).

The Court must first consider whether the forum selection clause in this case requires that the action be pursued in a Michigan forum. While there is perhaps a fair argument that the provision in question contemplates only actions initiated by First National Monetary Corporation against its investors, the Plaintiffs do not make it; instead, they simply argue that the clause in this case is permissive rather than mandatory. The Plaintiffs would apparently distinguish the forum selection provision in their contract from one such as that in DAntuono, which provided that “[a]ny action relating to this Agreement shall be instituted and prosecuted in the Courts of San Diego County, California.” 570 F.Supp. at 710. While the Court agrees that the DAntuono clause is perhaps a better worded specimen, the Court does not find that the forum selection clause in this case fails its essential purpose, which is to protect the corporate Defendant from having to litigate in distant forums all over the nation. It is clear that such provisions should be enforced when invoked by the party for whose benefit they are intended. See In re Fireman’s Fund, 588 F.2d at 95, citing Electronic & Missile Facilities, Inc. v. United States, 306 F.2d 554 (5th Cir.1962), rev’d on other grounds, sub nom. Moseley v. Electronic & Missile Facilities, Inc., 374 U.S. 167, 83 S.Ct. 1815, 10 L.Ed.2d 818 (1963). Further, at least two courts have considered a provision identical to the one in this case and apparently have concluded that the provision is mandatory, granting motions to transfer under 28 U.S.C. § 1406(a) over the objection of the plaintiff. Jahann v. First National Monetary Corp., No. CIV-84-1627 (S.D.Fla. Aug. 27, 1984); Hughes v. First National Monetary Corp., No. CIV-83-7194 (S.D.N.Y. Jan. 23, 1984). This Court is in agreement, and concludes that reading the forum selection clause as mandatory is the better interpretation.

The Plaintiffs also argue that the clause, whether permissive or mandatory, is unenforceable in this case. They rely on the decision of the proposed transferee court in First National Monetary Corp. v. Chesney, 514 F.Supp. 649 (E.D.Mich.1980), wherein the court held an identical forum selection provision unenforceable. Id. at 656. However, this Court finds Chesney inapposite to the case at bar, as in that case the court considered the reach of the Michigan long arm statutes, including an in personam jurisdiction statute enumerating the requisite elements of a binding forum selection clause. Id. at 654. In this case, there is no in personam jurisdiction issue, as the Plaintiffs are clearly entitled to hale the Defendants into court in the Defendants’ home state. Thus, the Court concludes that the enforceability issue in this case must turn on “whether it clearly can be shown that enforcement ‘would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching.’ ” Bense, 683 F.2d at 721-2, quoting The Bremen, 407 U.S. at 12, 92 S.Ct. at 1914.

There is no assertion in this case that the forum selection clause was obtained by fraud; the mere fact that the Plaintiffs’ claims are in essence fraud claims is insufficient to support the inference that the clause itself was a product of fraud or coercion. See Scherk, 417 U.S. at 519 n. 14, 94 S.Ct. at 2457 n. 14. Further, the Court is satisfied that, even though the contract in this case may exhibit some aspects of the “adhesion” contract, see Chesney, 514 F.Supp. at 656, this alone does not amount to the overreaching proscribed by The Bremen. Thus, the issue of enforceability in this case must be resolved on the question whether it is unreasonable under the circumstances to require the Plaintiffs to sue in a Michigan forum. The Bremen, 407 U.S. at 10, 92 S.Ct. at 1913. D’Antuono, 570 F.Supp. at 711.

To demonstrate unreasonableness, it must be shown that “trial in the contractual forum will be so gravely difficult and inconvenient that [the party opposing transfer] will for all practical purposes be deprived of his day in court.” The Bremen, 407 U.S. at 18, 92 S.Ct. at 1917. This very heavy burden rests upon the Plaintiffs in this case, as they are the parties resisting enforcement of the contractual forum selection provision. The Bremen, 407 U.S. at 17, 18, 92 S.Ct. at 1917. D’Antuono, 570 F.Supp. at 711. As the Plaintiffs have failed to present any evidence that they would be seriously inconvenienced by having to maintain this action in a Michigan forum, the Court concludes that enforcement of the forum selection clause in this case is not unreasonable.

The forum selection clause in this case is enforceable and venue must therefore be laid in the Eastern District of Michigan. Under 28 U.S.C. § 1406(a), the Court has the authority either to dismiss this case or to transfer it to that district. The Court feels that the interests of justice would be best served by a transfer rather than a dismissal for improper venue under Fed.R. Civ.P. 12(b)(3). Thus, the Court will order this action transferred to the United States District Court for the Eastern District of Michigan, Southern Division.

In summary, the Defendants’ Motion to Transfer is granted. The Court orders this action transferred to the United States District Court for the Eastern District of Michigan, Southern Division. This transfer obviates the need to consider any of the other motions advanced by the Defendants.

IT IS SO ORDERED this 23 day of October, 1984.


author: O’NEILL, District Judge.

text:
    Warren FELTON v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY.
    Civ. A. No. 83-4263.
    United States District Court, E.D. Pennsylvania.
    Nov. 19, 1984.

      Harold R. Berk, Philadelphia, Pa., for plaintiff..
    James F. Kilcur, Philadelphia, Pa., for defendant.
   MEMORANDUM

O’NEILL, District Judge.

This is a Title VII case. Plaintiff, who is black, alleges that his discharge on March 18, 1983 was racially motivated. Trial was held without jury on November 1 and 2, 1984. This memorandum will serve as the Court’s findings of fact and conclusions of law as required by Fed.R.Civ.P. 52(a).

In a “disparate treatment” case such as this one, the plaintiff must prove discriminatory animus. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981). Burdine makes it clear that the plaintiff has the burden of making out a prima facie case of discrimination by a preponderance of the evidence. Id. at 253-54, 101 S.Ct. at 1093-94. A prima facie case establishes a mandatory, rebuttable presumption of discrimination. Id. at 254, n. 7, 101 S.Ct. at 1094, n. 7. The defendant may rebut the presumption by clearly setting forth a legitimate reason for plaintiff’s discharge (a burden of production only). To prevail, plaintiff must then show by a preponderance of the evidence that defendant’s reason is pretextual. Id. at 255-256, 101 S.Ct. at 1094-1095; Dillon v. Coles, 746 F.2d 998 at 1003 (3d Cir.1984). The Supreme Court has explained that the burden of establishing a prima facie case of disparate treatment is not onerous. Burdine, supra, 450 U.S. at 253, 101 S.Ct. at 1093.

Plaintiff has established his qualifications for the position of electronics specialist with defendant. He was discharged despite his qualifications, and other qualified persons, not of his race, continued to work in that position. Thus, plaintiff has established his prima facie case. See Massarsky v. General Motors Corp., 706 F.2d 111, 118 (3d Cir.1983); cf. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973).

Defendant’s evidence establishes legitimate reasons for plaintiff’s discharge. Defendant contends that on three separate occasions plaintiff violated disciplinary rules, the last occasion leading to his final discharge. On December 13, 1982, Niall Nestor, a supervisor, gave plaintiff an order to do treadle work. Six hours later plaintiff had not begun the work. Plaintiff testified that he never heard the order because he had a hearing problem in his right ear; however, both Niall Nestor and John Kane, another supervisor, testified that plaintiff verbally acknowledged the order when it was first given. Kane also testified that plaintiff, when questioned about the assignment six hours later, told him he did not do treadle work. Plaintiff began the treadle work when he was again given the order by Kane. The next day, Niall Nestor suspended plaintiff pending discharge for failure to follow his directive. At a first level grievance hearing, the discharge was rescinded and plaintiff was suspended for five days and given a final caution; the reason being that defendant had only recently finished training plaintiff and the hearing examiner felt a discharge would waste defendant’s investment in that training. A final caution means that the employee can expect to be discharged for any further violations of the rules of employment.

On January 5, 1983, plaintiff and another employee were given an order to do inspection work on trolley cars, work which supervisors testified should take three hours. Plaintiff did not return to his supervisors for another whole assignment after the inspections. Plaintiff apparently claimed the inspection work was more difficult than expected, as the cars being inspected were in poor condition. Plaintiff did not turn in any completed work orders for that shift. Although plaintiff was discharged for this apparent failure, the discharge was rescinded at the second level hearing because the charge made against plaintiff, failure to follow a directive, was technically incorrect.

Finally, on March 18, 1983, plaintiff was discharged for “conduct unbecoming a SEPTA employee.” Plaintiff claims that, while he was speaking with another employee (Harry Miller) before his shift began, Niall Nestor ordered Miller away and threatened plaintiff with discharge. Nestor testified that he spoke to Miller to order him back to work. Plaintiff then began to shout at him and demanded a grievance form, followed him to the office, and stood in the office, still shouting, for five minutes after plaintiffs shift had begun. Nestor told plaintiff to get a grievance form from the union officer on the premises. This testimony was corroborated by Kane and by a clerical employee, Susan Sheridan Felix, who was in the office on that date. Nestor suspended plaintiff pending discharge because of his disruptive conduct. That discharge was upheld through three levels of hearing and arbitration.

Plaintiff testified on his own behalf; all other testimony in plaintiffs case was that of defendant’s employees. Defendant called these same employees as well as others; in all, six SEPTA employees testified. The Court finds all six to be credible. Their testimony established that plaintiff’s behavior on the date of discharge was disruptive and threatening, and that plaintiff had a poor disciplinary record in the months immediately preceding his discharge.

The Court concludes that plaintiff’s discipline and discharge were not motivated by racial considerations. Defendant’s supervisory employees behaved in good faith and each disciplinary step, including the final discharge, was a proper response to plaintiff’s conduct while at work. Plaintiff has not persuaded the Court that defendant’s legitimate explanation for the discharge is pretextual. Therefore, the Court will not grant the relief requested.

ORDER

AND NOW, this 19th day of November, 1984, judgment is hereby ENTERED in favor of defendant and against plaintiff.


author: JAMES McGIRR KELLY, District Judge.

text:
    Anil B. DEOLALIKAR v. MURLAS COMMODITIES, INC.
    Civ. A. No. 84-1953.
    United States District Court, E.D. Pennsylvania.
    Nov. 19, 1984.

      Ralph David Samuel, Philadelphia, Pa., for plaintiff.
    John J. Barrett, Jr., Philadelphia, Pa., for defendant.
   MEMORANDUM AND ORDER

JAMES McGIRR KELLY, District Judge.

This matter comes before the court on defendant Murías Commodities, Inc.’s motion to dismiss and/or transfer this action to a different venue.

The defendant, an Illinois corporation, is engaged in the business of commodities futures trading, an often risky and volatile investment proposition that involves the buying and selling of such diverse products as soybeans, com, foreign currency, heating oil and lumber.

Plaintiff has brought suit charging defendant with violations of 18 U.S.C. § 1961 et seq., commonly known as the Racketeer Influenced and Corrupt Organizations Act (RICO), for alleged patterns of racketeering activity involving an investment account he held with Murías Commodities, Inc. The plaintiff also has stated a cause of action under a theory of common law fraud.

The jurisdiction of this court is invoked under 18 U.S.C. § 1964(c) of the RICO Act with pendent jurisdiction over plaintiffs state common law fraud claim being asserted too.

A brief recitation of the course of conduct between the parties may be instructive in understanding the resolution of these motions.

Mr. Deolalikar, the plaintiff, received a telephone solicitation from Murías of Miami, Inc. inquiring of his interest in opening a commodities investment account with the defendant corporation. The plaintiff agreed to open an account and the proper agreement papers were prepared for his signature with $10,000 being initially deposited into the account. Both sides agree up to this point to these facts, but take issues as to what occurred next. Suffice it to say, Mr. Deolalikar’s account suffered a $3,000 loss through a series of investments.

Troubled by these losses, the plaintiff contacted the defendant’s representatives to complain about their trading strategies. The conversation ended with the plaintiff investing an additional $5,000 to bring his current account to $12,000 and total investment to $15,000.

The plaintiff notified the defendant of his intention to leave the country for a short hiatus and informed them that power of attorney would be conferred on a relative to represent his interest. The plaintiff also wrote letters of instructions on investment strategy. Upon returning to the United States approximately two months later plaintiff’s account balance had been reduced to $652.42. These transactions, which resulted in losses, are the basis for plaintiff’s claims against Murías.

In order to open an account, a customer is required to sign an agreement which contains the rights, duties and obligations of both parties. One of the many terms contained within the agreement was a forum selection clause which specifies that any action against Murías will be brought only in a court sitting in Chicago, Illinois. The agreement also contained a provision that allowed Murías to settle any disputes with Mr. Deolalikar by use of an arbitration proceeding.

Murías has asserted the forum selection clause in petitioning this court to transfer the matter to the Federal Court for the Northern District of Illinois. Mr. Deolalikar raises three arguments why this motion to transfer should be denied. The first point is that the customer agreement, which constitutes a contract between the parties, was never accepted by Murías. The second argument deals with the validity of enforcing a forum selection and arbitration clause when a federal claim under the RICO act is alleged. The last point centers on the notion that the forum selection and arbitration clauses are not enforceable since they run contrary to existing federal regulations governing commodities disputes.

DISCUSSION

It is a well established principal that parties to a contract may stipulate in advanee to submit their disputes to a given court in a specific jurisdiction. The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1971). Commonly known as “forum selection”, this type of provision has long been a fixture in commercial transaction contracts.

Thus, the threshold question the court is presented with is whether it should exercise its jurisdiction to do more than give effect to the legitimate manifestation freely negotiated by the parties. Bremen, supra, 12, 92 S.Ct. at 1914.

Forum selection provisions have been upheld absent some showing that its enforcement would be unreasonable, unfair or unjust. Anastasi Bros. v. St. Paul Fire & Marine Ins., 519 F.Supp. 862 (E.D.Pa. 1981); Stop-A-Flat Corp. v. Electra Start of Michigan, 507 F.Supp. 647 (E.D.Pa.1981). While it is true that parties may not enter into an agreement which prevents a court from asserting its inherent jurisdiction over the matter, nevertheless, “a court in which venue is proper and which has jurisdiction should decline to proceed with the casé when the parties have freely agreed that litigation shall be conducted in another forum ...” Central Contracting Co. v. C.E. Youngdahl & Co., Inc., 418 Pa. 122, 209 A.2d 810, 816 (1965).

Our first inquiry shall determine if enforcement of this provision is unreasonable, unfair or unjust.

The plaintiff has not alleged that he was induced by any act of fraud or misrepresentation by the defendant or its brokers to enter into the agreement. The forum selection provision is printed in bold type in contrast to the other provisions printed in a normal type face. This provision is directly above the signature of plaintiff on the agreement. Mr. Deolalikar has not alleged that this agreement was not entered into at arms length transaction. Nor will enforcement of the forum selection clause deny the plaintiff his day in court, an important consideration weighed by the Supreme Court in Bremen, supra, 407 U.S. at 18-19, 92 S.Ct. at 1917-1918.

By transferring this matter to another federal district court, plaintiff will not be shouldered with an unfair disadvantage in vindicating his rights. The court in that district is certainly competent to hear this case. Illinois attorneys will be able to provide effective counsel and since the center of commodity trading is in Chicago, the plaintiff should have a plethora of expert witnesses to choose from to present his position.

Courts within our jurisdiction have consistently held that the inconvenience imposed by attending trial in another jurisdiction is not a serious enough hardship to deny enforcement of the provision. “Mere inconvenience or additional expense is not the test of unreasonableness, since it may be assumed that the plaintiff received under the contract consideration for these things.” Central Contracting Co., supra, 209 A.2d at 816; Central Contracting Co., Inc. v. Maryland Casualty Co., 367 F.2d 341 (3d Cir.1966) (quoting from Central Contracting Co., supra).

Since the plaintiff has not met the burden of proving that the agreement was induced by fraud or that he will be denied his day in court or that enforcement of it would unreasonably force him to litigate in another jurisdiction, the forum selection clause is a valid exercise of a contractual right.

Plaintiff contends that there are three reasons why in spite of its validity, the provision should not be enforced.

I. The Customers Agreement Was Never Accepted by Murías and Therefore Is Not Binding Between the Parties.

We find no support for this proposition either in law or in fact. Paragraph 26 of the agreement states that the laws of the State of Illinois shall govern the construction, interpretation and enforcement of this agreement, and that “the agreement shall not be deemed to be accepted by Murlas or become a binding contract between customer and Murlas until approved at Murías’ Home Office by Murlas New Accounts Department.”

Plaintiff believes that his agreement with Murlas is voidable since no evidence has been found to show that the new accounts department accepted his agreement. The court disagrees with this assessment because Murlas was bound by the terms of the agreement when they began to invest the plaintiff’s money during the month of May, 1980.

The. contract provides for this court to look to Illinois law in resolving any interpretation of the agreement. It is well settled in that state that the language of the agreement can govern the mode of acceptance required. Baltimore & Ohio Southwestern Railroad Co. v. People ex rel. Allen, 195 Ill. 423, 63 N.E. 262. It is also well accepted law that the performance of a contract can begin by either (1) engaging, within a reasonable time, to perform the contract; (2) by beginning such performance in a way which would bind him to complete it; (3) by actual performance. Plumb v. Campbell, 129 Ill. 101, 18 N.E. 790.

When Murlas began to trade using Mr. Deolalikar’s funds actual performance of their agreement began. Constructive acceptance occurred at that time and the plaintiff cannot now seek to declare the contract voidable as to provisions he finds onerous.

II. The Arbitration Clause is Contrary to Federal Regulation 17 C.F.R. § 180.3 et seq. and a Claim Asserted Under RICO is not Arbitrable.

Application of the arbitration clause is not an issue before the court because plaintiff chose to file suit in a court of law. Therefore, we need not reach the issue of whether the provisions which restrict the location of arbitration to the City of Chicago is a violation of existing regulations. Nor must we reach the issue of whether an arbitration panel may enforce a claim brought under the RICO Act.

In concluding, the court finds that the forum selection provision is a valid exercise of the parties free will to qualify the method disputes will be settled. By transferring this action to the District Court for the Northern District of Illinois plaintiff’s concerns over the arbitration provision are not effected in any manner. The arbitration provision has not been invoked and if defendant were to attempt to invoke it, plaintiff could renew his objection to its enforcement in that court.

For the foregoing reasons, this court will grant defendant’s motion to transfer this action to the Northern District of Illinois pursuant to 28 U.S.C. § 1404(a). An appropriate Order follows.

ORDER

AND NOW, this 19th day of November, 1984, upon consideration of defendant Murlas Commodities, Inc.’s motion to transfer and the plaintiff Anil B. Deloalikar’s response thereto, it is ORDERED that defendant’s motion is GRANTED and this matter is transferred to the United States District Court for the Northern District of Illinois.

BY THE COURT:

      . Murías of Miami, Inc. acted as brokers for defendant.

      . The arbitration provision has not been invoked by Murías and is not an issue before this court.

      . Defendant has also moved to dismiss the complaint for failure to state a claim upon which relief may be granted. The merits of that motion need not be reached by this court if their motion to transfer is granted.

      . Restatement Second Conflict of Laws § 80.

      . Plaintiff conducted discovery of the documentation surrounding his account and no written acceptance was found.

      . 17 C.F.R. 180.(3)(4)(11) allows the customer the opportunity to select location of the arbitration proceedings from among several major cities in diverse geographic regions.


text:
    LOCALS 1242 AND 1332, INTERNATIONAL LONGSHOREMEN’S ASSOCIATION, AFL-CIO v. PORTSIDE REFRIGERATED TERMINALS, INC., et al.
    Civ. A. No. 83-4793.
    United States District Court, E.D. Pennsylvania.
    Nov. 19, 1984.
    Martin J. Vigderman, Philadelphia, Pa., for plaintiffs.
    Robert A. Swift, Philadelphia, Pa., for defendants.
   MEMORANDUM AND ORDER

JAMES McGIRR KELLY, District Judge.

This matter is before the Court on plaintiffs’ motion for an order to enter final judgment as to less than all parties. This action was brought against Portside Refrigerated Terminals, Inc. (Portside) and its corporate officers, Robert Blank, Jeffery L. Blank and Emanuel S. Kardon (individual defendants) to recover damages resulting from, inter alia, an alleged breach of a collective bargaining agreement.

On March 28, 1984 I issued an order denying defendant corporation’s various motions to dismiss but granting individual defendants motion to dismiss for lack of subject matter jurisdiction. Portside filed an appeal to this order and the plaintiffs, pursuant to state law, moved in state court to transfer the action.

Individual defendants filed preliminary objections in state court to plaintiffs’ action arguing that since Portside had appealed the March 28th order, final judgment on this matter had not been rendered by a federal court. The state court granted individual defendants’ motion and dismissed the plaintiffs’ complaint without prejudice until an express determination is made that the Order is final as required by Fed.R. Civ.P. 54(b). Plaintiffs petition this court to enter final judgment as required by Rule 54(b) in order to enable them to go forward with their suit against the individual defendants.

DISCUSSION

The court is somewhat puzzled by plaintiffs’ request since the order dismissing their complaint against individual defendants was clear and unambiguous.

It is a well established principle that federal courts are courts of limited jurisdiction. Jurisdiction over the subject matter is a prerequisite for continuance of any action in federal district court. Trent Realty Associates v. First Federal Sav. and Loan Assn. of Philadelphia, 657 F.2d 29 (3d Cir.1981).

Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the Court is that of announcing the fact and dismissing the cause.

Ex Parte McCardle, 74 U.S. (7 Wall.) 506, 514, 19 L.Ed. 264 (1868).

This court was without power to hear plaintiffs’ claims against the individual defendants. Nothing has occurred since March 28, 1984 which would vest jurisdiction over the subject matter in this court. Plaintiff did not appeal from the adverse ruling against it and the issues currently before the Court of Appeals do not address the jurisdictional questions affected by the March 20th Order.

This court’s order dismissing the complaint for lack of subject matter jurisdiction was a final determination of the issue. A dismissal for lack of subject matter jurisdiction has been construed to be within the ambit of “final judgment or order” as stated in Federal Rules of Civil Procedure. Beverly Hills Fed. Savs. & Loan Assn. v. Webb, 406 F.2d 1275 (9th Cir.1969); Oyster Shell Products Corp. v. U.S., 197 F.2d 1022 (5th Cir.1952), cert. denied, 344 U.S. 885, 73 S.Ct. 184, 97 L.Ed. 685. See also, Wright and Miller, Federal Rules of Civil Procedure, Rule 54 § 2656. Once a court determines it is devoid of power to hear a claim, nothing that the parties do will confer the requisite authority needed to decide that case or controversy. Both the plaintiffs and the individual defendants’ rights and liabilities were finally decided in this court by the decision to dismiss the complaint. No subsequent action on our part is necessary to make the March 28th order dismissing the complaint final. If the state court refuses to transfer the action because of an interpretation of state law and procedure, plaintiffs’ complaint lies with that court and not here.

ORDER

AND NOW, this 19th day of November, 1984, for the reasons set forth in the foregoing Memorandum, it is ORDERED that plaintiffs’ motion for entry of final judgment as to less than all parties is DENIED as moot.

      . 42 Pa.C.S.A. § 5103(b) reads in part, "... such transfer may be effected by filing a certified transcript of the final judgment of the United States Court..

      . The suit in state court names only the individual defendants and not Portside.

      . Rule 54(a) and (b).


author: KEVIN THOMAS DUFFY, District Judge:

text:
    Ron SIMMAT, Plaintiff, v. N. Wayne SMITH, et al., Defendants.
    No. 84 Civ. 4558 (KTD).
    United States District Court, S.D. New York.
    Dec. 14, 1984.

      Ron Simmat, plaintiff, pro se.
    Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, for defendants; Frederick M. Lawrence, Asst. U.S. Atty., New York City, of counsel.
   MEMORANDUM & ORDER

KEVIN THOMAS DUFFY, District Judge:

Pro se plaintiff, Ron Simmat, moves for a preliminary injunction enjoining defendants, N. Wayne Smith, et al., from denying plaintiff the right to send correspondence to correctional officers. Defendants oppose plaintiff’s motion and cross-move for summary judgment. For the reasons that follow, defendants’ summary judgment motion is granted and, accordingly, plaintiff’s motion for a preliminary injunction is denied.

Plaintiff is a prison inmate serving a life sentence at the Federal Correctional Institute, Otisville, New York (“Otisville”). On March 30, 1984, he wrote a letter to the United States Attorney General, William French Smith, and sent a copy of the letter to Prison Guard Barbara Mclnturff. On April 4,1984, plaintiff was instructed by N. Wayne Smith, the Chief Correctional Supervisor at Otisville, “to terminate sending mail to Correctional Officers,” and if plaintiff “had any mail to go to any Correctional Officer, he was to forward the mail directly to [Smith].” Affidavit of N. Wayne Smith, Exh. B. (Incident Report dated April 8, 1984). Because he refused to follow this procedure, the Institution Discipline Committee (“IDC”) sentenced plaintiff to fifteen days of Disciplinary Segregation time. Choosing not to appeal at the institutional level, plaintiff unsuccessfully appealed the IDC’s decision to the Regional and Central Offices of the Bureau of Prisons.

Plaintiff has filed the instant action alleging, inter alia, violation of his First Amendment right to freedom of speech and seeking declaratory and injunctive relief. Plaintiff also seeks money damages for the violation of his constitutional rights pursuant to the Supreme Court’s decision in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 397, 91 S.Ct. 1999, 2005, 29 L.Ed.2d 619 (1971). The government has moved for summary judgment on the grounds that plaintiff failed to exhaust his administrative remedies and that he is unable to show a violation of his constitutional rights.

The procedures an inmate should follow in pursuing an administrative remedy for his complaint are set forth in 28 C.F.R. § 542.10 et seq. Unless the complaint is of a sensitive nature, it should first be filed with the Warden of the institution. 28 C.F.R. § 542.13. Then, “[i]f an inmate is not satisfied with the Warden’s response, that response may be appealed ... to the Regional Director.... If the inmate is not satisfied with the Regional Director’s response, that response may be appealed to the General Counsel.” 28 C.F.R. § 542.15.

As noted above, plaintiff failed to first appeal the IDC’s decision to the Warden. Rather, he appealed directly to the Regional Director and then to the General Counsel. Both the Regional and Central offices refused to review the merits of plaintiff’s complaint because it was not first submitted to the Warden at Otisville and was not of a sensitive nature. See Complaint, Exhs. H and J. Plaintiff alleges that he does not have to exhaust his administrative remedies because (1) his complaint is sensitive, and (2) his suit is a Bivens-type claim.

Based on the papers submitted, plaintiffs contention that his complaint is sensitive and that he would be endangering himself if he appealed to the Warden simply has no basis in fact. Thus, I concur with the Regional and Central Offices that the issues raised by plaintiff are not so sensitive as to justify precluding an initial review by the Warden.

Plaintiffs second argument, that exhaustion of administrative remedies is not required in a Bivens-type action, is also unpersuasive. Plaintiff cites a recent Third Circuit decision in support of his position. In Muhammad v. Carlson, the court stated that “[bjecause a prisoner asserting only a claim for damages under Bivens apparently can obtain no relief from the Bureau of Prisons, it would serve little purpose to require him to exhaust administrative remedies before coming into the courts.” 739 F.2d 122, 125 (3d Cir.1984) (citations omitted). However, the court went on to note that circuit courts “have required exhaustion of administrative remedies when the prisoner is seeking more than money damages.” Id. at 125 n. 1 (citations omitted).

This doctrine has been considered important to provide a possible solution to the problem; to reduce the intrusion of the courts into the administration of the prisons, ...; and to provide some fact-finding so that when or if the matter reaches the trial court, it will have some starting place____ The initial administrative action would ordinarily be where the witnesses are readily available.

Brice v. Day, 604 F.2d 664, 667 (10th Cir.1979) (citations omitted). Moreover, a prisoner should not be permitted to circumvent the soundly reasoned and firmly established policy that administrative procedures be exhausted prior to review by a federal district court simply by asserting, in addition to his other claims for relief, a Bivenstype claim.

Thus, as I find that plaintiff has failed to exhaust his administrative remedies, I need not address the government’s argument that plaintiff is unable to show a violation of his constitutional rights. Accordingly, plaintiff’s motion for a preliminary injunction is denied as moot, defendants’ motion, for summary judgment is granted and the complaint is dismissed.

SO ORDERED.


author: TROUTMAN, Senior District Judge.

text:
    James A. RICHARDSON and Sandra K. Richardson v. MERCHANTS NATIONAL BANK.
    Civ. A. No. 84-2319.
    United States District Court, E.D. Pennsylvania.
    Dec. 17, 1984.

      David A. Scholl, Bethlehem, Pa., for plaintiff.
    Donald P. Russo, Allentown, Pa., for defendant.
   MEMORANDUM AND ORDER

Plaintiffs in this action complain of a violation of the Truth in Lending Act (TILA), specifically 15 U.S.C. § 1638(a)(9)(B), which proscribes undisclosed security interests. The Richardsons delivered to defendants the title to their 1974 Chevrolet automobile at the same time that they received a loan in the amount of $10,416.72, exclusive of interest. The Installment Loan Note and Security Agreement lists a security interest in a 1975 Brockway tractor as collateral for the loan. Also disclosed on the face of the agreement is a checked box followed by the statement, “Collateral securing other loans with us may also secure this loan”. It is not clear from the complaint whether or not the automobile falls into that category.

On that basis, as well as on the basis of other perceived pleading deficiencies, defendant has moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6). Although it is true that plaintiffs do not allege in detail all the facts underlying their complaint, e.g., that they own the car in question, that it does not secure any other loan from defendant bank, and that they were required to use it to secure the instant loan, these allegations are implicit in the complaint. It is also true that proof of only one fact is necessary to demonstrate a violation of the law, viz., that a security interest was taken in the automobile but was not disclosed in the agreement.

The well-known standard for the dismissal of the complaint for failure to state a claim upon which relief may be granted is that it must be apparent that plaintiffs can prove no set of facts which would entitle them to relief. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). It is not clear from the present state of the pleadings that such a situation presents itself here. Plaintiffs may prove a TILA violation if discovery confirms the allegations of the complaint and the Court determines that the facts as adduced amount to an undisclosed security interest. It is simply too soon to decide the ultimate issue.

ORDER

AND NOW, this 17th day of December, 1984, upon consideration of defendant’s motion to dismiss the complaint and plaintiffs’ response thereto, IT IS ORDERED that the motion is DENIED.

      . Implicit in defendant’s motion to dismiss is the argument that if the car were covered by the catch-all clause described above there would be no violation of TILA. However, that is by no means self-evident, was not adequately briefed, and is not considered at this time.


text:
    Thomas H. KELLY, Plaintiff, v. AMERICAN FEDERATION OF MUSICIANS’ AND EMPLOYERS’ PENSION WELFARE FUND, Defendant.
    No. 84 Civ. 0227 (KTD).
    United States District Court, S.D. New York.
    Jan. 3, 1985.
    Thomas H. Kelly, plaintiff, pro se.
    Simpson, Thacher & Bartlett, New York City, for defendant; J. Scott Dyer, New York City, of counsel.
   MEMORANDUM & ORDER

KEVIN THOMAS DUFFY, District Judge:

Pro se plaintiff, Thomas H. Kelly (“Kelly”), brings this “reverse” employment discrimination action pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. (“Title VII”) and The Civil Rights Act of 1866, 42 U.S.C. § 1981 against defendant, American Federation of Musicians’ and Employers’ Pension Welfare Fund (the “Fund”), alleging he was terminated from his employment because of his race. Defendant moves for summary judgment under Rule 56 of the Federal Rules of Civil Procedure on the ground that Kelly offers no evidence which would tend to rebut the Fund’s showing that the discharge was based entirely on non-discriminatory reasons. Defendant also seeks costs and attorney’s fees.

Plaintiff, a white male, was hired by the Fund in September of 1980 to work as a Pension Clerk. His duties included determining the level of contributions made into the Fund on behalf of the musicians and what, if any, pension benefits they were entitled to. Eli Quintero, the Supervisor of the Pension Department, oversaw Kelly’s work.

After a few months, Kelly was told by Quintero that there had been complaints by musicians who had not received their correct pension benefits. Kelly was instructed to check the proper source material, something he admits he failed to do at times. In the ensuing months, Kelly repeatedly made errors which had to be corrected by others. In the summer of 1982, he was admonished both privately and later with others “to be more careful in ... work” because there were complaints by the musicians about the number of errors being made. Transcript of Deposition of Thomas H. Kelly, dated May 15, 1984 (“Tr.”), 40, 41.

In August 1982, Kelly prepared a document which did not include contributions for the years 1959 through 1964. As a result, someone else had to insert these figures. Kelly admitted his negligence at his deposition:

Q: Would checking the book from 1959 to 1964 be one of the first steps you would take in preparing the work sheets?
A: Definitely.
Q: And for whatever reason, you didn’t check these books in this particular case; is that correct?
A: Yes. I might have checked and just missed it.
sjc * * * sfc
Q: But these are adjustments that were caught by someone other than you?
A: That’s right.

Tr. at 63, 64.

In November 1982, Kelly failed to correct an entry on a worksheet he was supposed to update. On November 15, 1982, he again met with Quintero who once more stated that the musicians were complaining about errors. Kelly did not dispute that he was making these errors, but simply said that he would attempt to cut down on them. Tr. at 41-43. Finally, on November 24, 1982, Kelly was informed that he was being discharged because of his poor work performance and complaints by the musicians. Kelly’s position was then refilled by Steven Carter, also a white male.

In late November, 1982, Kelly filed a discrimination charge against defendant with the Equal Employment Opportunity Commission (“EEOC”). The EEOC referred the matter to the New York State Division of Human Rights (“NYSDHR”) which, after an investigation, dismissed the charge finding that there was no probable cause that the Fund discriminated against plaintiff. The EEOC subsequently adopted the NYSDHR’s decision. Kelly then timely filed the instant action alleging racial and religious discrimination. By Endorsement dated March 21,1984,1 dismissed that part of plaintiff’s claim which charged religious discrimination because, inter alia, it was not alleged in the EEOC complaint.

DISCUSSION

On a summary judgment motion, the moving party has the burden of proving that there exists no genuine issue as to any material fact and the movant is entitled to summary judgment as a matter of law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). Given that all of the facts stated above are fully supported by Kelly’s deposition and have not been contradicted by Kelly in the papers he has submitted, it is clear that there is no dispute as to any material facts. In response to defendant’s evidentiary support of its motion for summary judgment, it is incumbent on plaintiff to come forward with “suitable opposing affidavits.” Id. at 160, 90 S.Ct. at 1609. Absent factual corroboration, I am unable to consider plaintiff’s conclusory statements in his two letters to me as sufficient to rebut defendant’s showing.

In Texas Department of Community Affairs v. Burdine, the Supreme Court analyzed its seminal opinion in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and restated the plaintiffs and defendant’s burdens in a Title VII discrimination action. The Court stated:

First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant ‘to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.’ Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination ... [Note, however, that the] ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.

450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981) (citations omitted).

The elements necessary to satisfy plaintiff's initial burden of establishing a prima facie case of discriminatory discharge are as follows:

(1) that the plaintiff was a member of a minority; (2) that he was qualified for the job he was performing; (3) that he was satisfying the normal requirements of his work; (4) that he was discharged; and (5) that after his discharge he was replaced by a non-minority employee.

Said v. Institute of International Education, Inc., 29 Empl.Prac.Dec. (CCH) ¶ 32,-751, at 25,534 (S.D.N.Y.1982) (citations omitted).

In the light of these general principles, I must conclude that defendant is entitled to summary judgment because it has sustained its burden of proving that there are no issues of disputed material fact and that it is entitled to judgment as a matter of law. It is apparent that the third and fifth elements articulated in Said are unsupported by the facts and cannot be established. First, Kelly admits that he repeatedly made errors which had to be corrected by others and which resulted in numerous complaints from musicians. These incidents led to several admonishments from his superior, Mr. Quintero, that Kelly had to be more careful in his work. Kelly, however, continued to make errors. Second, defendant replaced plaintiff with another white male, Steven Carter.

In addition, assuming plaintiff could make out a prima facie case, the Fund’s articulation of a “legitimate, nondiscriminatory reason for [Kelly’s] rejection” — his inadequate performance as a pension clerk— shifts back to plaintiff the burden of showing that this reason was merely a pretext for discrimination. Pretext may be established by showing: (1) [proof that employees of other races] with similarly poor work performances or employment records were retained while plaintiff was not; (2) statistical evidence showing that the employer had a pattern or practice of discrimination against persons of plaintiff’s race ...; and/or (3) direct evidence of subjective intent. Wade v. New York Telephone Company, 500 F.Supp. 1170, 1177-78 (S.D.N.Y.1980). Plaintiff is unable to show any of the above. With respect to the first method of proving pretext, Kelly alleges that he was terminated while other employees with similar work records were simply transferred to other departments. However, his testimony at his deposition clearly indicates that these other employees he is referring to included whites, Hispanics, and blacks. Tr. at 77-81, 95-97.

Q: Are there any other specific facts on which you base your position that you were terminated on account of your race?
A: I guess I said everything that I feel is relevant. When you add all these facts up, I feel it does amount to discrimination. Specifically, the most general factors are all the people that were terminated before me or transferred or whatever, there [sic] were given numerous changes and I wasn’t even asked if I would like to work in the order department—
Q: And those other people you are referring to would refer to white, black and Hispanic employees as well?
A: Yes.
Q: So the essence of your claim is that you felt you were treated unfairly from what other employees of the Fund, really regardless of their race, received?
A: Yes.

Tr. at 96, 97. Thus, by Kelly’s own admission, his failure to be transferred and his discharge were not racially motivated.

With regard to the second and third methods of proving pretext, Kelly has come forward with no statistical evidence of a pattern of discrimination nor has he produced any direct evidence of a subjective intent to discriminate. Consequently, the inescapable conclusion is that the reason given by the Fund for discharging Kelly was legitimate and not merely a pretext for discrimination.

Accordingly, as plaintiff has failed, in opposition to defendant’s summary judgment motion, to submit any evidence to support his allegation of discrimination, defendant’s motion is granted and plaintiff’s case is dismissed. Defendant’s request for costs and attorney’s fees is denied.

SO ORDERED.

      . The criteria for proving a section 1981 discrimination case is the same as that used to prove a case under Title VII. See Hudson v. International Business Machines Corp., 620 F.2d 351, 354 (2d Cir.), cert. denied, 449 U.S. 1066, 101 S.Ct. 794, 66 L.Ed.2d 611 (1980).

      . It should be noted at the outset that a white male has the same right to bring a Title VII action as does any other person. Section 703(a)(1) of Title VII provides in pertinent part:
      (a) It shall be an unlawful employment practice for an employer—
      (1) ... to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.
      42 U.S.C. § 2000e-2(a)(1) (emphasis supplied). After examining the text and legislative history of the statute, the Supreme Court held that “Title VII prohibits racial discrimination against ... white petitioners ... upon the same standards as would be applicable were they Negroes....” McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 280, 96 S.Ct. 2574, 2578, 49 L.Ed.2d 493 (1976). Thus, given the fact that the same principles apply to all Title VII actions, regardless of the race or sex of the plaintiff, I will now discuss what those standards are and whether, pursuant to those standards, defendant is entitled to summary judgment.


text:
    ASAHI AMERICA, INC., Plaintiff, v. The M/V ARILD MAERSK, her engines, boilers, etc., and A.P. Moller (Maersk Line), Defendants. and A.P. MOLLER, Third-Party Plaintiff, v. WM. McCULLOUGH TRANSPORTATION CO., INC., Third-Party Defendant.
    No. 83 Civ. 4387 (KTD).
    United States District Court, S.D. New York.
    Jan. 8, 1985.

      Purrington, McConnell & Agus, New York City, for plaintiff; Stephen A. Agus, New York City, of counsel.
    Gillen & Caliendo, New York City, for third-party defendant; Fredric P. Gallin, New York City, of counsel.
   MEMORANDUM & ORDER

KEVIN THOMAS DUFFY, District Judge:

In these days of containerized shipments moving from port-to-port and thence overland, the question of the applicability of the limitation of liability provided for in the Carriage of Goods by Sea Act (“COGSA”) to the overland portion of the trip is one which has to fascinate all who are involved in admiralty law. But this case will not provide the resolution to the deep and difficult policy questions involved therein.

The facts, as agreed to among the parties, are as follows. Plaintiff Asahi America, Inc. (“Asahi”) purchased a shipment of six “house to house” containers holding pallets of plumbing valves and one container of pallets of pipe fittings. Agreed Statement of Facts 1Í 6. Plaintiff’s cargo was shipped on the “M/V Arild Maersk” pursuant to a Bill of Lading dated February 5, 1981. Id. The ship’s Bill of Lading indicated that the destination of the shipment was “Boston C.Y.” Agreed Statement of Facts, Exh. 1 (The “port of discharge” listed is New York but the “place of delivery” listed is “Boston C.Y.”). The “M/V Arild Maersk” arrived at Port Newark on approximately February 28, 1981 and the containers were discharged. Id. ¶ 8. Local agents for Maersk Line, defendant and third-party plaintiff, Moller Steamship Co., Inc. (“Moller”) arranged with third-party defendant William McCullough Transportation Co., Inc. (“McCullough”) for overland transportation to the Boston terminal and an inland Bill of Lading was issued. See id.

On March 3, 1983, Rosario Carbone, an owner of and the driver for McCullough picked up one of the containers (No. MAEU-2116764) from a pier in Newark for transportation to Boston. After receiving the container, Carbone drove from Newark to Queens. He left the container overnight on the chassis with the cab attached on a local Queens street. Id. if 10. On March 4, 1984, at 5:15 a.m., Carbone reported the theft of the container and cab to the 114th Precinct in Queens. Id. II11. More than an hour earlier, at approximately 4:00 a.m., the police had been called to investigate an accident on the Bruckner Expressway in the Bronx. Id. If 12. The police discovered the cargo container resting on its side in the median between the Northbound and Southbound Lanes of the Lower Bruckner Expressway. Id. The container had been torn apart and separated from the chassis which was no longer at the site. Id. The cargo was found strewn along the median for sixty feet. Only eight pallets were found intact. Id. Arrangements were made to forward to Boston the recoverable material, id. 1113, and surveys were performed, id. ¶ 14.

The parties agree that if plaintiff’s recovery from McCullough is limited to $500.00 per package, plaintiff is entitled to $22,-500.00 for forty-five pallets. If plaintiff’s loss is not so limited, the parties have not stipulated to what the actual loss is.

McCullough argues that the $500.00 per package limitation applies to it because as a subcontractor of Maersk Line, it is accorded the benefit of the COGSA’s limitation which is incorporated by reference into the ocean Bill of Lading. McCullough argues alternatively that because it is merely a third-party defendant, it is liable only to the extent that the defendant is found liable. Both of McCullough’s arguments, however, lead to the inescapable conclusion that McCullough is liable ultimately for plaintiff’s actual loss.

If COGSA does apply to McCullough’s trip, it applies in its entirety; the deviation provision as well as the limitation provision would necessarily have to be applied. Thus, assuming arguendo that a per package limitation is applicable, McCullough’s overnight deviation to Queens, which I find to be totally unreasonable, would vitiate the effect of such limitation. See General Electric Co. v. S.S. Nancy Lykes, 706 F.2d 80, 84-86 (2d Cir.1983) (deviation is unreasonable when it “substantially increases the- exposure of cargo to forseeable dangers that would have been avoided had no deviation occurred”).

Furthermore, if COGSA does not apply to the inland transportation leg of the trip to Boston, then through the application of either state law or the Interstate Commerce Act, McCullough would be nonetheless liable to plaintiff for its actual loss. Thus, under the circumstances of this case, I need not reach the issue of whether COG-SA’s limitation would apply to the overland portion of the shipment of plaintiff’s goods.

I note also that there is no merit to McCullough’s argument that its liability is limited to $500.00 per package because Maersk’s liability is so limited and Maersk’s action against McCullough is for indemnification. Maersk’s liability, however, is not limited under COGSA, as McCullough’s deviation is imputable to Maersk. It is stipulated that Maersk arranged for inland shipment by McCullough. McCullough is clearly the sub-contractor of or agent for Maersk as plaintiff contracted only with Maersk for delivery in Boston. See Agrico Chemical Co. v. S.S. Atlantic Forest, 459 F.Supp. 638, 647 (E.D.La.1978), aff'd, 620 F.2d 487 (5th Cir.1980).

Accordingly, I conclude that plaintiff is entitled to recover an amount equal to its . actual loss without the application of COG-SA’s limitation. Plaintiff’s damages shall be fixed by Magistrate Grubin after inquest.

SO ORDERED.