author: McNAUGHT, District Judge.

text:
    Pat FINN, Administratix, Plaintiff, v. CONSOLIDATED RAIL CORP., (Defendant/Third Party Plaintiff), v. BOSTON & MAINE RAILROAD, Third-Party Defendant.
    Civ. A. No. 80-1633-Mc.
    United States District Court, D. Massachusets.
    June 12, 1985.

      Philip J. Crowe Jr., Lubin & Meyer, Boston, Mass., for plaintiff.
    Michael A. Fitzhugh, Fitzhugh & Ward, Boston, Mass., for Consolidated Rail Corp.
    Robert D. O’Leary, Quincy, Mass., for Boston & Maine Corp.
   MEMORANDUM AND ORDERS ON MOTIONS TO DISMISS

McNAUGHT, District Judge.

This action came on to be heard on two separate motions. The defendant Consolidated Rail Corporation (Conrail) filed a motion to dismiss which shall be treated as a motion for summary judgment. The third-party defendant Boston & Maine Railroad (B. & M.) filed a separate motion for summary judgment.

Briefly, the facts are these. The plaintiff’s intestate, Edward Finn, worked as a railroad employee for almost 35 years. In 1977 he had worked recently as an employee of Conrail. There was a takeover of the route on which Mr. Finn had been working, by the B. & M. When that happened, B. & M. agreed to accept as many employees from Conrail as possible, subject to some restrictions, and a set of procedures was outlined for the Conrail employees to follow, in order to make the transition. They had to undergo a physical examination, including an eye test, and an interview. Mr. Finn understood when he made application to become an employee of the B. & M. that he would be informed if he failed one of those tests. He was not so notified, but when a list of hired employees was posted by the B. & M., his name was not on it. The plaintiff asserts that a mixup had occurred: that an employee of Conrail had mixed this Mr. Finn with a different Mr. Finn; that by reason of the error in record keeping, the B. & M. was led to believe that this Mr. Finn had a spotty service record, instead of a perfectly clean one. The interview and test had taken place June 14, 1977. Mr. Finn learned that he had not been awarded a job on either June 20 or June 21st, 1977. The papers filed in support of and in opposition to these motions indicate that if there was any negligence involved with respect to the record keeping it was negligence on the part of Conrail through its employee. Mr. Finn, according to his counsel, was “crushed by the loss of his job”. He searched for a reason. He enlisted the aid of his union. He was told that a disciplinary violation attributable to the other Mr. Finn had been the reason for the denial of the job. Conrail in effect apologized to him. When the misunderstanding was cleared up Mr. Finn was hired by the B. & M. He began, however, seeing a psychiatrist because of depression, and he delayed his return to work until September of 1977. Within two weeks afterward, he took his own life.

His administratrix subsequently brought this action under the Federal Employers’ Liability Act (FELA) claiming responsibility on the part of Conrail, on July 20, 1980. Defendant Conrail’s position in part is: one cannot recover for emotional distress, unless there is some causally related compensable physical injury. In support of this proposition, Conrail cites Bullard v. Central Vermont Ry., 565 F.2d 193 (1st Cir. 1977). There the Court stated, at p. 197: “The jury was therefore entitled to compensate Gonyer for the elements of mental distress properly attributable to this accident, limited, of course, to those of which there was competent evidence. (Gonyer suffered an injury to his foot.) These elements included, on this record, Gonyer’s fright just before the accident, when collision was imminent and he jumped, and his terror just after the trains collided. The jury was not, however, entitled to compensate him for his sadness at the passing of his friends, nor, given the complete absence of meaningful evidence of mental or nervous after-effects, was the jury entitled to compensate for those elements____”. Judge (now Chief Judge) Campbell quoted from Sullivan v. Old Colony Street Ry. Co., 197 Mass. 512, 516, 83 N.E. 1091 in which the Supreme Judicial Court of Massachusetts held that mental suffering for which damages can be recovered is limited to that which results to the person injured as the necessary or natural consequence of a physical injury. He stated that: “FELA cases indicate that mental distress is compensable on a basis similar to that in Massachusetts and other common law jurisdictions”.

Here there was no physical injury. There was at most a record keeping error on the part of Conrail, the deceased’s employer. That mixup made it appear that Mr. Finn’s record was tarnished whereas it was actually spotless. Assuming that it precipitated his depression, and that his self destruction followed, there can be no recovery under the FELA, applying the principle enunciated in Sullivan and Bullard. Summary judgment must be granted in favor of defendant Conrail.

Conrail argued further, in a veritable mountain of material which it submitted, that a jury, on the evidence most favorable to plaintiff, could not find an error on the part of Conrail record keeping clerks: that there is an absence of probative facts to that effect. I disagree. The deposition material of one Claude McGray and the application of reasonable inference would permit a fact finder to arrive at such a conclusion.

The defendant B. & M. is entitled to summary judgment. Since Conrail is not liable the third-party action falls. B. & M. at any rate would not be liable on an indemnification theory here, even if there were liability on the part of Conrail. There is nothing by way of contract that could give rise to a duty to indemnify. Incidentally, Conrail made no such argument. Conrail insists, however, that it would be entitled to indemnity from B. & M. on a “tort-based theory”: the theory that the whole loss should be shifted to the “more guilty” of two joint tort-feasors, citing Federal Deposit Insurance Corp. v. Caolo, 478 F.Supp. 1185 (1979) Araujo v. Woods Hole, Martha’s Vineyard, Nantucket S.S. Auth., 693 F.2d 1 (1st Cir.1982) and the case of Stewart v. Roy Bros., Inc., 358 Mass. 446, 265 N.E.2d 357 (1970). The entire argument is bottomed on the proposition that the B. & M. was responsible for the record keeping error, and that Conrail could be liable only vicariously. The short answer to this argument is that there is absolutely nothing in all of this material which would allow a jury to conclude that there was either affirmative or negative conduct on the part of B. & M. involving clerical error or any other type of negligence. Even if defendant Conrail were denied summary judgment I would grant it in favor of the third party defendant. It is appropriate to add that if the plaintiff sought to recover directly against the B. & M. under the FELA (which plaintiff did not) plaintiff would lose, since the act complained of occurred at a time when there wasn’t even an employment relationship between plaintiff’s decedent and the B. & M. Two other matters are worthy of mention only. Although these comments may seem superfluous, I am content that this Court has jurisdiction over the subject matter, and would not dismiss the complaint for lack of the same. Secondly, if faced with the necessity, I would deny defendant’s motion as it is based on a statute of limitations argument.


source: Caselaw Access Project

author: PECKHAM, Chief Judge.

license: Public Domain

text:
    UNITED ENERGY CORPORATION, Plaintiff, v. UNITED STATES of America, Defendant.
    No. C-85-2884 RFP.
    United States District Court, N.D. California.
    July 3, 1985.

      Montie S. Day, Jon R. Vaught, of Day & McBride, Oakland, Cal., for plaintiff.
    Jay R. Weill, Asst. U.S. Atty., San Francisco, Cal., for defendant.
   ORDER

PECKHAM, Chief Judge.

INTRODUCTION

Plaintiff United Energy Corporation (UEC) brings this action against the United States pursuant to 26 U.S.C. § 7431(a) and requests damages of $25,000,000. The plaintiff claims that damages should be awarded because counsel for the United States, Jay Weill, allegedly disclosed tax information about UEC to a newspaper reporter after a hearing on plaintiffs application for a temporary restraining order. The United States now moves for summary judgment on the grounds that Mr. Weill merely repeated to a reporter what had been said in a public hearing. The court grants summary judgment in favor of the United States.

In his declaration attached to his moving papers, Jay Weill stated that the proceedings relating to the TRO were conducted in public and that newspaper reporters were present in the courtroom. In fact, the hearing on January 14, 1985, was in Judge Vukasin’s chambers, and no reporters were present. UEC thus argues that the affidavit was made in bad faith and, pursuant to rule 56(g), sanctions should be imposed and an order to show cause should issue as to why Jay Weill should not be held in contempt. The court does not believe that faulty recollection constitutes “bad faith” and therefore refuses to impose sanctions and refuses to issue the order to show cause.

STATEMENT OF FACTS

On January 14,1985, UEC filed an action against the United States and various individual defendants. In the complaint and the voluminous pleadings filed the same day, UEC stated that it was under investigation by the IRS and asked the court to stop the investigation. Complaint at 118A-H; Declarations of Montie Day and Philip Storrer. UEC also filed an application for a temporary restraining order and an order to show cause that was heard that afternoon by Judge Vukasin. The hearings were held in the private chambers of Judge Vukasin; no court reporter was present. The following day a hearing was held in Judge Vukasin’s courtroom.

On January 15, 1985, an article appeared in the Oakland Tribune, which quoted Jay Weill as saying the following:

There is no question that the IRS is conducting an ongoing investigation of this company.
We haven’t destroyed anything and we have no intention of destroying anything. There has been no impropriety.
I don’t know whether that’s true or not (as to whether UEC has been placed on an abusive tax shelter list).
But, if we have disallowed such deductions, we have a right and obligation to tell the taxpayer why we did so. I think that’s what they’re referring to.

Complaint at Exhibit B.

Gene Ayres, the reporter who wrote the article, vaguely recalls that he talked to Weill by telephone on January 14 to get the government’s response to the allegations made by UEC in its complaint and related papers filed that day. (Declaration of George Bevan, Jr., filed June 14, 1985).

In Weill’s first declaration filed in connection with the instant motion, he stated that the proceedings relating to the TRO were in public and that newspaper reporters were present in the courtroom either January 14 or 15, or both dates. He declared that he recalled leaving the courtroom on either January 14 or 15 and being asked questions about the lawsuit filed by UEC. According to Weill, he repeated to the reporters what he had just said in their presence in the courtroom.

Weill filed a supplemental declaration stating that his recollection was in error. All proceedings on January 14 were in chambers. He mistakenly had thought that after the hearing in chambers on January 14, all counsel and Judge Yukasin had returned to the courtroom and summarized what had been said in chambers. IRS District Counsel Perry Foster, who had been with Weill in Judge Vukasin’s chambers on the 14th, was in Europe at the time Weill filed the declaration so Weill did not have the benefit of consulting with Foster about the sequence of events.

DISCUSSION

1. Motion for summary judgment

Section 7431 authorizes civil actions against the United States “if any officer or employee of the United States knowingly, or by reason of negligence, discloses any return or return information with respect to a taxpayer in violation of any provision of section 6103....” 26 U.S.C. § 7431(a)(1). The section further provides that “[n]o liability shall arise under this section with respect to any disclosure which results from a good faith, but erroneous, interpretation of section 6103.” 26 U.S.C. § 7431(b).

Section 6103 generally states that returns and return information shall be confidential and shall not be disclosed except as authorized by statute. The statute authorizes the disclosure of return information “in a Federal or State judicial or administrative proceeding pertaining to tax administration, but only ... if such return or return information directly relates to a transactional relationship between a person who is a party to the proceeding and the taxpayer which directly affects the resolution of an issue in the proceeding.” 26 U.S.C. § 6103(h)(4)(C).

There is no doubt that Weill was permitted by statute to make the disclosures that he made in chambers or in court. The acknowledgement that UEC was under investigation related directly to UEC's allegations in its complaint. See Davidson v. Brady, 559 F.Supp. 456 (W.D.Mich.1983), aff'd, 732 F.2d 552 (6th Cir.1984) (disclosures permissible pursuant to section 6103(h) where plaintiff's financial statement was attached to a Sentencing Memorandum to show falsity of third party’s financial statement). The issue before this court is, however, whether Weill later could repeat to reporters the statements made in a judicial proceeding.

In Rodgers v. Hyatt, 697 F.2d 899 (10th Cir.1983), the court held that the fact that return information had been disclosed by a taxpayer’s attorney in a court proceeding to enforce an internal revenue summons did not justify a later disclosure. The IRS had issued a summons to a bank in connection with the income tax liabilities of Rodgers. During the hearing to enforce the summons, Hyatt, an IRS official, was subpoenaed as a witness by Rodgers. In testimony elicited by Rodgers’ counsel, Hyatt stated that Rodgers was dealing in stolen oil and was not reporting all income received from the sale of that oil. Two months later, Hyatt mentioned that Rodger’s company was rumored to be involved in stealing oil. Rodgers brought suit, alleging a violation of section 6103.

Hyatt contended on appeal that the “tax information” he disclosed had been fully developed and disclosed in the course of the Wyoming district court proceeding during his cross-examination. The content of the statement had become a matter of public record and, accordingly, could no longer be considered confidential “return information” within the meaning of section 6103. The Tenth Circuit, however, held that even assuming the loss of confidentiality, Hyatt violated “the requirement that he, as an officer of the United States, was prohibited from disclosing ‘return information’ absent express statutory authorization.” Id. at 906; see also Olsen v. Egger, 594 F.Supp. 644, 647 (S.D.N.Y.1984) (prohibition against disclosure of the returns, except as provided by the statute, may not be circumvented even when the returns relate to a matter in issue during a litigation).

The Tenth Circuit’s holding appears at odds with its own reasoning. The court in its opinion stated:

it is wholly untenable to hold that a disclosure of such public information can in any way give rise to an action for damages. This is particularly true where, as here, the suit is brought by the very person who, in the course of the prior summons enforcement proceedings, caused the matter in question to become public knowledge.

Rodgers, 697 F.2d at 903. The Tenth Circuit’s reasoning, as opposed to its holding, is well-supported. In United States v. Posner, 594 F.Supp. 930, 936 (S.D.Fla.1984), the court found that once certain information is in the public domain, even if the information is part of a federal income tax return, the entitlement to privacy is lost. The Posner court held that the press had a First Amendment right of access to the defendant’s tax returns that were admitted into evidence at his codefendant’s trial on charges of violating the federal tax laws. Id. at 932.

Certainly, it is well established that what transpires in open court is a matter of public record. Nixon v. Warner Communications, 435 U.S. 589, 597, 98 S.Ct. 1306, 1311, 55 L.Ed.2d 570 (1978). It is not so well established that what transpires in a judge’s chambers is also a matter of public record. Weill claims that he merely repeated what had been said in chambers or in open court. More importantly, Weill merely responded to questions that were asked because of UEC’s filing of its complaint. Thus, in response to UEC’s charges in its complaint, Weill denied that the IRS had destroyed records, stated that he did not know whether UEC was on a list of abusive tax shelters, stated that if deductions were disallowed by the IRS, they were properly disallowed, and admitted that UEC was under investigation by the IRS.

Once UEC decided to make certain of its return information public by filing a complaint, it lost any entitlement to privacy in that information. This court will not allow UEC to recover damages for disclosures that it had already made itself. Since Weill only responded to allegations in the complaint and did not disclose any additional return information, his disclosures are permissible because the return information was no longer confidential. The court therefore grants summary judgment in favor of defendant.

2. Motion for sanctions

Rule 56 provides that if any affidavits are “presented in bad faith or solely for the purpose of delay”, then the court shall order the party employing them “to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney’s fees, and any offending party or attorney may be adjudged guilty of contempt. Fed.R.Civ.P. 56(g).

Jay Weill’s declaration unquestionably contained factual errors. His failure to recall accurately the events as they occured, however, do not constitute “bad faith”. His explanation was reasonable (the fact that he did not have a chance to check his memory against that of IRS district counsel Perry Foster) and is accepted by the court. No matter what version of the facts is employed, the United States is entitled to summary judgment.

CONCLUSION

The court GRANTS summary judgment in favor of the United States. Plaintiff’s motion for sanctions and an order to show cause is DENIED. Judgment will be entered accordingly.

IT IS SO ORDERED.


author: ROVNER, District Judge.

text:
    Wilbert C. SCIPIO, Jr., Plaintiff, v. Casper W. WEINBERGER, Secretary of Defense, Defendant.
    No. 84 C 10797.
    United States District Court, N.D. Illinois, E.D.
    July 24, 1985.
   MEMORANDUM OPINION AND ORDER

ROVNER, District Judge.

Presently before this Court is the defendant’s motion to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted. The motion is granted because, contrary to plaintiff’s contentions, the Civil Service Reform Act of 1978 (“CSRA”) has not superseded Title VII of the Civil Rights Act of 1964. Congress expressly provided in the CSRA that nothing in 5 U.S.C. § 2302 — the section prohibiting discrimination on the basis of, inter alia, race — was to be construed to lessen or extinguish any rights or remedies afforded by Title VII. 5 U.S.C. § 2302(d)(1). Moreover, Congress provided that allegations of discrimination in violation of Section 7702 were to be pursued under Title VII. 5 U.S.C. § 7702(b)(2). Plaintiff has not alleged a violation of Title VII. The Seventh Circuit has recently held that a private right of action does not lie to enforce the merit system underlying 5 U.S.C. § 2301. Schracta v. Curtis, 752 F.2d 1257 (7th Cir.1985). Accordingly, plaintiffs reliance on a section of the CSRA which provides for the establishment of minority recruitment programs within federal agencies, 5 U.S.C. § 7201(c)(1), is misplaced because no indication in the legislative history of that section exists of the intent to provide a private right of action. Title VII is the exclusive and preemptive avenue of relief for allegations of racial discrimination in federal employment. Brown v. General Services Administration, 425 U.S. 820, 829-30, 96 S.Ct. 1961, 1966-67, 48 L.Ed.2d 402 (1976); Tankha v. Costle, 536 F.Supp. 480 (N.D.Ill.1982). Finally, plaintiff’s pendent state claims for intentional and malicious interference with plaintiff’s right to an employment contract is barred by his failure to bring his alleged tort claim under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq., which is the exclusive means by which the United States has consented to suit in tort. United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). Thus, the complaint is dismissed pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted.


text:
    Joseph LAZZARA, Plaintiff, v. Howard A. ESSER, Defendant.
    No. 83 C 185.
    United States District Court, N.D. Illinois, E.D.
    Aug. 26, 1985.
   MEMORANDUM OPINION AND ORDER

ROVNER, District Judge.

The plaintiff in this diversity action, Joseph E. Lazzara (“Lazzara”) sued Howard A. Esser (“Esser”), defendant, for breach of a contract to procure automobile liability insurance. This Court entered summary judgment in favor of Lazzara and against Esser on April 1, 1985. 604 F.Supp. 1211. Shortly thereafter, plaintiff made a motion to amend the judgment. On July 16, 1985, this Court granted plaintiff’s motion to amend the judgment to include prejudgment interest based on Ill.Rev.Stat. eh. 17, § 6402 and postjudgment interest based on Ill.Rev.Stat. eh. 110, § 2-1303. Presently pending before this Court is plaintiffs second motion to amend the judgment seeking an increased award of interest. Plaintiff contends that this Court erred in awarding postjudgment interest pursuant to Ill.Rev.Stat. ch. 110, § 2-1303 (1983), and instead should have awarded interest based on the federal postjudgment interest statute, 28 U.S.C. § 1961 (as amended effective Oct. 1, 1982). Defendant has not filed a response. For the following reasons, plaintiffs second motion to alter or amend the judgment is denied.

Facts

On April 1,1985, this Court granted summary judgment in favor of Lazzara and against Esser in the amount of $150,000. The basis for the judgment was that Esser had wrongfully failed to procure an excess liability insurance policy for Lazzara, which caused a judgment to be entered against Lazzara in a Florida state court in the amount of $150,000. The Florida judgment was entered on May 5, 1982. Shortly after this Court granted summary judgment in his favor, Lazzara made a motion to amend the judgment to include interest and attorneys’ fees from May 5, 1982 through April 1, 1985. Lazzara requested that interest be calculated pursuant to Fla.Stat.Ann. § 55.03 (West 1985), the “interest on a judgment” statute, at the rate of 12% per annum.

After an exhaustive conflict of laws analysis, however, this Court determined that a district court sitting in Illinois and following Illinois substantive law had absolutely no interest to apply a Florida interest statute to a judgment rendered in an Illinois diversity action. This Court determined that the Illinois prejudgment interest statute was the appropriate statute under which interest should be calculated and, consequently, awarded Lazzara interest based on Ill.Rev.Stat. ch. 17, § 6402 (1983) at the rate of 5% per annum from May 5, 1982 through April 1, 1985.

Lazzara also requested postjudgment interest from the date summary judgment was rendered (April 1, 1985) until the date that the judgment was satisfied. This Court, following Merit Insurance Co. v. Leatherby Insurance Co., 728 F.2d 943 (7th Cir.1984), awarded Lazzara post-judgment interest at the highest rate allowed in Illinois, 9% per annum, based on Ill.Rev.Stat. ch. 110, § 2-1303. This Court also denied Lazzara’s request for attorneys’ fees because no evidence existed that Esser’s delay in settling the action amounted to an unreasonable or vexatious delay.

On July 16, 1985, this Court issued its opinion awarding Lazzara interest based on these two Illinois statutes, citing the Merit case for the proposition that although Illinois has two postjudgment interest statutes which conflict as to the rate of interest, the defendant should not be able to profit from his wrongdoing, and, consequently, the interest should be calculated at the higher of the two rates. After reading this Court’s July 16, 1985 opinion, Lazzara apparently is still unsatisfied with his recovery for he has once again come to this Court seeking to amend or alter his judgment. Despite the fact that he himself requested that the Florida interest statute be applied in his first motion to alter or amend the judgment, Lazzara now argues that this Court instead should have applied the federal interest statute, 28 U.S.C. § 1961 (as amended, effective Oct. 1, 1982).

Discussion

28 U.S.C. § 1961, as amended, provides for interest to be granted on any money judgment entered in a civil case “at a rate equal to the coupon issue yield equivalent (as determined by the Secretary of the Treasury) of the average accepted auction price for the last auction of 52 week United States Treasury bills settled immediately prior to the date of judgment.” In plaintiffs initial motion to amend his judgment, however, plaintiff did not request interest to be awarded pursuant to this statute. Plaintiff apparently was unaware of the existence of the federal postjudgment interest statute because he made no mention of it whatsoever and indeed requested post-judgment interest as available under Florida law.

In Weitz Company, Inc. v. Mo-Kan Carpet, Inc., 723 F.2d 1382 (8th Cir.1983), the Eighth Circuit considered the application of 28 U.S.C. § 1961 in its post-amendment form to a diversity action. The Eighth Circuit determined that the federal interest statute was applicable to the computation of postjudgment interest. Id. at 1386. In a dissenting opinion, however, Judge Swygert, Senior Circuit Judge of the Seventh Circuit sitting by designation, emphasized that “Congress has only limited authority to dictate the law that applies in a federal court sitting in a diversity action.” Id. at 1387. According to the Erie doctrine, “Congress has no power to declare substantive rules of common law applicable in a state____” Erie Railroad v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938). He found that it is doubtful whether the Constitution empowers Congress to proscribe the rate of interest due on judgments granted in diversity cases when the claim is based solely on state law because “[jjudgment interest is an item of substantive damages.” Weitz, supra, 723 F.2d at 1387, citing Restatement (Second) of Conflict of Laws § 171 comment C (1971). Judge Swygert determined that the federal interest statute does not apply in a diversity action in which the claim is based exclusively on state law in the absence of a specific provision for such diversity claims within the statute. Id. at 1388.

This Court finds that Judge Swygert’s dissent is more persuasive than the majority opinion in Weitz on that issue. Federal courts sitting in diversity must apply the substantive law of the state in which they sit to assure that the outcome of federal court adjudication of diversity cases is substantially the same as the result that would have obtained in state court and to avoid forum shopping that would otherwise result. This Court cannot conceive that Congress, which has long been considering abolishing diversity jurisdiction altogether because of the ever-increasing federal caseload, would have adopted a federal interest statute applicable in diversity cases which would increase rather than decrease the number of federal cases without mentioning one word about its applicability to diversity cases in the legislative history. Certainly, Congress did not intend such a result.

Accordingly, this Court holds that 28 U.S.C. § 1961 as amended does not apply to actions in which jurisdiction is based on diversity of citizenship. This case is a diversity action 'in which the claim rests exclusively on state law. Consequently, this Court finds that Ill.Rev.Stat. ch. 110, § 2-1303 controls the determination of postjudgment interest in the instant controversy.

Conclusion

Thus, plaintiff’s second motion to amend the judgment seeking postjudgment interest under 28 U.S.C. § 1961 is denied.

      . In Merit, the Seventh Circuit determined that before the 1982 amendment to 28 U.S.C. § 1961, the law of the forum state governed the rate of interest in diversity actions. The court then clarified that in Illinois, which has two post-judgment interest statutes, Ill.Rev.Stat. ch. 110, § 2-1303, and § 12-109, the former statute should control the rate of postjudgment interest to be awarded over the later statute. The court did not apply nor did it consider the use of 28 U.S.C. § 1961 in its post-amendment form.

      . For this reason alone, if for no other, this motion to alter or amend the judgment should be denied. Fed.R.Civ.P. 59(e) provides that a motion to alter or amend the judgment must be served no later than 10 days after the entry of judgment. Lazzara offers no excuse for his failure to request that post-judgment interest be calculated under the federal statute when he brought his first motion to alter or amend the judgment, and none exists because both the federal statute and the cases upon which he relies were published and in effect at the time. Thus, his current motion is untimely.

      . The court reasoned that under the Erie doctrine, Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), the question of whether interest is substantive or procedural is an uncertain area which is "rationally capable of classification" as either. See Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965). Consequently, the court determined that Congress has full power to legislate in this area, even with respect to cases in which jurisdiction rests on diversity of citizenship.

      . The Seventh Circuit has not yet considered the issue. Two cases, however, have been decided since Merit, supra. The first, Smith v. Stoner, 594 F.Supp. 1091 (N.D.Ind.1984), involved both a violation of the fourteenth amendment of the United States Constitution and a violation of 42 U.S.C. § 1983. Thus in Stoner, the claim did not rest on state law. Consequently, prejudgment and postjudgment interest on plaintiffs judgment was awarded pursuant to 28 U.S.C. § 1961. The other case relying on Merit was Central Rivers Towing v. City of Beardstown, 750 F.2d 565 (7th Cir.1984). The plaintiff in Beards-town brought suit claiming maritime negligence and statutory violations under the Rivers and Harbors Act, 33 U.S.C. § 403. The Beardstown court determined that in admiralty actions, the statutory rate of interest in the state in which the district court sits is only one factor to be considered in awarding interest and that reliance on that rate is now disfavored. Id. at 574.


author: THOMAS F. HOGAN, District Judge.

text:
    Ralph MARRERA, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants.
    Civ. A. No. 84-232.
    United States District Court, District of Columbia.
    Aug. 28, 1985.

      Ralph Marrera, pro se.
    Joan S. VanBerg, U.S. Dept, of Justice, Royce W. Lamberth, Asst. U.S. Atty., Civ. Div., Washington, D.C., for defendants.
   MEMORANDUM OPINION

THOMAS F. HOGAN, District Judge.

Plaintiff, a federal prisoner acting pro se, filed this action under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, seeking access to records pertaining to himself maintained by sixteen components of the Department of Justice (DOJ). By orders dated December 12, 1984 and February 20, 1985 the Court dismissed for lack of prosecution plaintiff’s claims against fourteen of the DOJ components that were the subject of defendants’ unopposed motion to dismiss, including plaintiff’s claims against the Executive Office for United States Attorneys (EOUSA), the Bureau of Prisons (BOP), and the Federal Bureau of Investigation (FBI). With respect to plaintiff’s remaining claims against the United States Marshals Service (USMS) and the Office of Intelligence Policy and Review (OIPR), the Court instructed defendants to file any dis-positive motions on or before May 1, 1985.

This case is presently before the Court on defendants’ motion for summary judgment with respect to the claims concerning the OIPR and USMS. Furthermore, because the USMS forwarded documents in its possession which originated with BOP, EOUSA and FBI back to those components for their direct reply to plaintiff’s FOIA request, claims against BOP, EOUSA and the FBI were revived only with respect to the forwarded documents. Accordingly, defendants have also filed a motion for summary judgment with respect to the documents forwarded to BOP, and motions to dismiss with respect to the documents forwarded to EOUSA and the FBI.

As with defendants’s earlier motion to dismiss, the Court again afforded plaintiff an opportunity to respond to defendants’ dispositive motions well in excess of the time normally permitted. Again, plaintiff has filed no pleading directly responsive to defendants’ motions. Nevertheless, this Court has reviewed the defendants’ motions in light of the entire record in this action.

A) Office of Intelligence Policy Review

With respect to records requested from OIPR, OIPR responded that it could not admit or deny that it maintains information regarding whether the plaintiff is a target of surveillance pursuant to the Foreign Intelligence Surveillance Act (“FISA”), or whether such an application for surveillance was made to the Foreign Intelligence Surveillance Court. With respect to all other OIPR files, the defendants informed plaintiff that no records responsive to his request had been located. This Court finds the defendants’ affidavits concerning the adequacy of the search of OIPR’s non-FISA files sufficient, and no contrary argument has been raised by the defendant.

With respect to FISA materials OIPR invokes FOIA exemption 1, which exempts from disclosure records that are

(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.

5 U.S.C. § 552(b)(1).

The courts have consistently held that in cases involving exemption 1 substantial weight should be given to the agency’s affidavits, and summary judgment granted for the government if the affidavits establish that the particular information in question is specifically authorized to be kept secret in the interests of national security, and was in fact properly classified pursuant to the applicable Executive Order. See e.g., Salisbury v. United States, 690 F.2d 966, 970 (D.C.1982); Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981). This standard applies as well when the agency takes the position that it can neither confirm nor deny the existence of responsive information. See e.g., Miller v. Casey, 730 F.2d 773, 776-77 (D.C.Cir.1984); Gardels v. CIA, 689 F.2d 1100, 1103-05 (D.C.Cir.1982). The applicable Executive Order cited by OIPR in declining to admit or deny the existence of any records responsive to the plaintiff’s request is Executive Order 12356, 47 Fed.Reg. 14874 (April 16, 1984). In the instant case, the affidavit of Mary C. Lawton, Counsel for Intelligence Policy at the United States Department of Justice fully demonstrates that the materials requested by the plaintiff fall within the substantive definitions of classifiable material authorized to be kept secret in the interest of national security under Executive Order 12356, as information relating to intelligence sources or .methods, and intelligence activities, and were properly classified in accordance with the requirements of the Executive Order. Affidavit of Mary C. Lawton, at 6-7 [hereinafter “Lawton Affidavit”].

Furthermore, this Court finds that the Lawton Affidavit sufficiently delineates the damage to national security that could reasonably be expected to result if OIPR were to confirm or deny the existence of information responsive to plaintiff’s request. The Lawton Affidavit makes evident that merely confirming or denying the existence of such records would implicitly reveal classifiable information:

[A]n official acknowledgment either that OIPR maintains or does not maintain information documenting that a person is the subject of a FISA application would be tantamount to a confirmation or denial that the United States is obtaining intelligence information from a FISA surveillance of that person. [Lawton Affidavit, at ¶ 8.]
S¡« # íjí * 5k Sf!
Assuming that OIPR maintains information that is responsive to an [sic] FOIA request, acknowledgment of that fact would confirm that OIPR been involved in the approval of a FISA surveillance under the Act. Disclosure of that fact would be of intelligence or counterintelligence value to a trained intelligence analyst, foreign government, or hostile intelligence service because of the nature of the counterintelligence itself. [Id. at ¶ 9]
* * * * * *
Assuming, arguendo, that OIPR did not maintain information responsive to an [sic] FOIA request concerning a particular individual, acknowledgment of this fact would indicate that OIPR had not prepared an application for a FISA surveillance of that individual. If it were the policy of OIPR to indicate routinely that it does not maintain responsive records, these responses would also be of immense value to trained intelligence analysts and hostile intelligence services. This information would reveal that the U.S. government’s counterintelligence elements had not focused on that individual’s intelligence activities. Thus a hostile intelligence service could easily and quietly assess the extent of the U.S. government’s awareness of hostile intelligence activities. [Id. at ¶ 10]

Therefore, this Court finds that OIPR’s refusal to confirm or deny the existence of FISA records pertaining to this particular plaintiff to be justified in the interests of national security as part of an overall policy of Executive Order 12356, § 3.4(f)(1) with respect to all FISA FOIA requests. See Gardels, 689 F.2d at 1104-06.

Accordingly, because this Court finds that OIPR properly invoked FOIA exemption 1 with respect to the FISA materials, and has demonstrated that an adequate search was conducted of all other OIPR files and revealed nothing responsive to plaintiffs request, summary judgment shall be granted for the defendants with respect to OIPR.

B) United States Marshals Service

By letter dated November 29, 1984 the United States Marshals Service (USMS) advised the plaintiff that it had completed processing plaintiffs request. Thirty-six pages of materials were released in full to the plaintiff, and thirty-five additional pages were released with excisions. An additional nineteen pages were forwarded by the USMS to the FBI, EOUSA or BOP as documents originating with those components, and are addressed below.

Upon review of the affidavit of Florastine P. Graham, the USMS’ FOIA and Privacy Act Officer, as well as in camera review of the thirty-five pages of materials released to plaintiff with excisions, this Court is satisfied that the deletions made consisted solely of the names of non-supervisory law enforcement personnel. The Court finds that the names of such law enforcement personnel are exempt from disclosure pursuant to FOIA exemption (b)(6), 5 U.S.C. § 552(b)(6), which allows an agency to withhold matter contained in personnel, medical and similar files, to the extent that their production would constitute a clearly unwarranted invasion of personnel privacy. The Court concurs with defendants that disclosure of the names of the non-supervisory law enforcement personnel serves no public interest, and any such interest is strongly overcome by the privacy interests of the named individuals, including the risk of threats, harassment and intimidation that could be caused by disclosure. See Department of the Air Force v. Rose, 425 U.S. 352, 372, 96 S.Ct. 1592, 1604, 48 L.Ed.2d 11 (1976). Accordingly, exemption (b)(6) was properly employed to delete the names of such individuals from the materials released to the plaintiff.

Plaintiff’s only remaining claim with respect to the USMS, set forth in his motion to compel preparation of a Vaughn index, is that he believes that additional documents pertaining to him should have been found within the possession of the USMS because he was “under custody of the U.S. Marshals in December 1974, at which time ... an around-the-clock guard of U.S. Marshals was established in the intensive care ward, where plaintiff was being held in custody.” However, the Graham Affidavit indicates that the ninety documents located by USMS responsive to the plaintiff’s request were the result of three separate searches, keyed to areas where either the defendants or the plaintiff believed were most likely to have records on him. Graham Affidavit, at ¶1¶ 5-7. This Court finds that the defendant has met its burden of establishing that a reasonably thorough investigation was conducted. See McGehee v. CIA, 697 F.2d 1095, 1100-01 (D.C.Cir.1983), vacated in part, 711 F.2d 1076 (D.C.Cir.1983); Goland v. CIA, 607 F.2d 339, 352 (D.C.Cir.1978). There is no requirement that an agency search every division or field office in response to a FOIA request, especially where the requester has indicated specific areas where responsive documents might be located; all that is required is that the agency make a good faith effort to conduct a search for the requested records, using methods which can reasonably be expected to produce the information requested. See e.g., Marks v. United States Department of Justice, 578 F.2d 261, 263 (9th Cir.1978). The USMS has met this requirement. Accordingly, summary judgment shall be granted for the defendants with respect to the USMS documents.

C) The Bureau of Prisons

As the result of the USMS search, four documents that originated with the Bureau of Prisons (BOP) were returned to BOP for processing with respect to plaintiff’s FOIA request. The four pages consisted of two copies of the same teletype, with one copy containing a handwritten notation and initials. Affidavit of C.B. Faulkner, at ¶¶ 4-5. BOP released the copy containing the notations and initials to the plaintiff, with deletions. Upon review of the affidavit of C.B. Faulkner, as well as in camera review of the documents released to the plaintiff, this Court finds that the names of BOP non-supervisory personnel were properly deleted from the materials under FOIA exemption (b)(6), 5 U.S.C. § 552(b)(6), for the same privacy reasons supporting the USMS’ deletion of the names of non-supervisory personnel. Likewise, this Court finds that access and identity codes were properly deleted from the BOP documents under FOIA exemption (b)(2), 5 U.S.C. § 552(b)(2), as material related solely to the internal rules and practices of an agency in which the public could not reasonably be expected to have an interest, Department of the Air Force v. Rose, 425 U.S. 352, 369-70, 96 S.Ct. 1592, 1603, 48 L.Ed.2d 11 (1976); Founding Church of Scientology v. Smith, 721 F.2d 828, 830 n. 4 (D.C.Cir.1983), or which would place at risk of disclosure BOP regulations concerning security. See Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051, 1071 (D.C.Cir.1981) (en banc).

D) EOUSA and the FBI

As the result of the USMS’ search for documents pertaining to the plaintiff, the USMS returned eleven documents that originated with the Federal Bureau of Investigation (FBI) and four documents that originated with the Executive Office for United States Attorneys (EOUSA) to those components for their direct processing with respect to plaintiff’s FOIA request. See 28 C.F.R. § 16.42(d).

The FBI advised the plaintiff, by letter dated January 28,1985, that the documents referred to it by the USMS would not be released to the plaintiff in the absence of the payment of fees to cover duplication costs. In doing so, the FBI essentially reaffirmed its February 1, 1984 denial of plaintiff’s request for a fee waiver.

However, almost contemporaneously with the FBI’s letter to plaintiff, the plaintiff, by letter dated January 23, 1985, submitted a reformulated FOIA request to the FBI. Pursuant to that request, documents were released to the plaintiff, and no duplication fees were assessed by the FBI. Second Declaration of D.F. Martell, at ¶ 9. In light of these events, this Court finds plaintiff’s earlier FOIA claim for documents and request for waiver of fees moot. Accordingly, plaintiff’s claim against the FBI shall be dismissed.

By letter dated February 14, 1985 EOU-SA advised the plaintiff that the documents referred by the USMS would not be released to the plaintiff until an advance deposit was received to pay for duplication costs. In doing so, however, EOUSA included the four documents referred from USMS with all other documents previously located by EOUSA itself in response to plaintiff’s FOIA request directed to it, informing the plaintiff of a total $375.00 charge. Because plaintiff’s claims for all EOUSA documents other than the USMSreferred documents were dismissed by this Court’s orders of December 12, 1984 and February 20, 1985, EOUSA should have determined whether any duplication cost should be assessed only for the four pages referred to EOUSA by the USMS. Accordingly, this Court will afford EOUSA an opportunity to inform the Court whether it will release the four pages, supporting any deletions made, or whether a payment of duplication costs is required as to those four pages. Should a waiver of fees be denied for those four pages this Court will then review the appropriateness of that denial.

An order consistent with the rulings herein accompanies this opinion.

ORDER

In accordance with the rulings set forth in this Court’s memorandum opinion, it is this 28th day of August, 1985

ORDERED that defendants’ motion for summary judgment with respect to plaintiff’s claims against the Office of Intelligence and Policy Review, the United States Marshals Service and the Bureau of Prisons is hereby granted; and it is

FURTHER ORDERED that plaintiff’s claims against the Federal Bureau of Investigation is hereby dismissed as moot; and it is

FURTHER ORDERED that the defendant Executive Office of the United States Attorneys shall inform the Court within 10 days of the date of this Order whether a payment of duplication costs is required for the four pages of materials referred to it by the United States Marshals Service, and, if so, whether a waiver of fees shall be granted. In the event no payment of fees is required, defendant shall release the materials to the plaintiff, and file an appropriate motion for summary judgment with respect to any deletions made.

      . It is evident at this point that plaintiff seeks a waiver of any duplication fees assessed. Accordingly, this Court finds no purpose served in requiring a formal fee waiver request filed with EOUSA. EOUSA may just as easily inform the Court as to its position on such a waiver.


author: McRAE, Chief Judge.

text:
    Layron Dean MILLIGAN, Plaintiff, v. AMERICAN HOIST AND DERRICK CO., et al., Defendants.
    No. 84-1103.
    United States District Court, W.D. Tennessee, E.D.
    Aug. 29, 1985.

      W. Lee Pittman & Kathryn Sumrall, Edmond & Vines, Birmingham, Ala., for plaintiff.
    Herbert S. Sanger, Jr., Gen. Counsel, James E. Fox, Assoc. Gen. Counsel, Edwin W. Small, Ronald E. Klipsch, Tennessee Valley Authority, Knoxville, Tenn., William H. Stanhope, Atlanta, Ga., W.J. Reynolds, Reynolds & Harmon, Savannah, Tenn., for defendants.
   ORDER ON PENDING MOTIONS

McRAE, Chief Judge.

This is a diversity action wherein plaintiff seeks to recover damages for the wrongful death of his decedent, Layron Keith Milligan (Milligan). Presently before the Court are motion of defendants Smallen, Bynum, Blevins, Schreiner, Adams, Smith and Mclver (individual defendants) for summary judgment and a motion of defendant American Hoist and Derrick Company (American Hoist) for summary judgment.

The facts of this case are as follows. Milligan was employed by the Tennessee Valley Authority (TVA) and was assigned as a motor crane driver and oiler at the TVA’s Pickwick Landing Dam Main Lock Project near Savannah, Tennessee. On June 10, 1983, Milligan left the cab of the gantry crane to which he was assigned and ventured onto the gantry superstructure. No one witnessed the events immediately following, but it is apparent that Milligan became entangled in the gear steps of the rotating superstructure and the stationary part of the gantry structure and was crushed to death. Plaintiff in this action, Milligan’s son, claimed and is currently receiving benefits under the Federal Employees’ Compensation Act (FECA), 5 U.S.C. § 8101 et seq., as a result of his father’s death. In this action, plaintiff seeks to recover damages from the individual defendants for common law negligence and from defendant American Hoist, the manufacturer of the crane, under theories of negligence, strict liability in tort and breach of warranty. The individual defendants were each employed by the TVA and assigned to the Pickwick Landing Dam Main Lock Project: Herman Smalling, project manager; John Bynum, general construction superintendent; Frank Schreiner, supervisor of safety engineering services; Dillard Adams, equipment foreman; Ottie Smith, equipment foreman; and Gordon Mclver, construction engineer.

The individual defendants have moved for summary judgment on a number of grounds.

The fourth ground for summary judgment asserted by the individual defendants is dispositive. The individual defendants claim that as federal employees who were exercising discretionary functions and acting within the outer perimeters of their lines of duty, they are, as such, absolutely immune from common law tort actions such as this one.

In Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), the Supreme Court held that federal employees are absolutely immune from suits for common law torts committed while acting within their discretionary authority. Such immunity is to be distinguished from that accorded to federal officials from suits for constitutional torts which, under Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), is only qualified. Granger v. Marek, 583 F.2d 781 (6th Cir.1978). Functions do not become less important, nor do they necessarily involve less discretion, simply because they are invested in employees of lower rank. Barr, supra, 360 U.S. at 571-573, 79 S.Ct. at 1339-40. Authority is discretionary, rather than ministerial, if “there is room for policy judgment and decision.” Dale hite v. United States, 346 U.S. 15, 36, 73 S.Ct. 956, 968, 97 L.Ed. 1427 (1953). This absolute immunity is accorded from all common law tort suits against a federal officer even if brought by a fellow employee. See Dretar v. Smith, 752 F.2d 1015 (5th Cir.1985). TVA personnel, as employees of a federal instrumentality, may invoke the full range of immunity. See Johns v. Pettibone Corp. 755 F.2d 1484 (11th Cir.1985); Queen v. Tennessee Valley Authority, 689 F.2d 80 (6th Cir.1982), cert. denied, 460 U.S. 1082, 103 S.Ct. 1770, 76 L.Ed.2d 344 (1983).

According to the evidence submitted by the individual defendants, consisting of the affidavit of Herman E. Smalling and job descriptions of defendants Smalling, Bynum, Blevins, Schreiner, Adams, Smith and Mclver, each was given the requisite room for policy judgment and decision, enough to qualify their authority as discretionary. Since the alleged tort was committed while the individual defendants were exercising these discretionary functions, they are to be accorded absolute immunity from this suit.

Summary judgment is therefore granted in favor of defendants Smalling, Bynum, Blevins, Schreiner, Adams, Smith and Mclver.

Next, defendant American Hoist has moved for summary judgment on grounds that this action is time barred under the relevant statute of limitations, Tenn. Code Ann. § 29-28-103, which reads as follows:

Limitation of actions — Exception.—(a) Any action against a manufacturer or seller of a product for injury to person or property caused by its defective or unreasonably dangerous condition must be brought within the period fixed by §§ 28-3-104, 28-3-105, 28-3-202 and 47-2-725, but notwithstanding any exceptions to these provisions it must be brought within six (6) years of the date of injury, in any event, the action must be brought within ten (10) years from the date on which the product was first purchased for use or consumption, or within one (1) year after the expiration of the anticipated life of the product, whichever is the shorter, except in the case of injury to minors whose action must be brought within a period of one (1) year after attaining the age of majority, whichever occurs sooner.

Section 29-28-103 was enacted as part of the Tennessee Products Liability Act of 1978 (Act). A “products liability action,” within the meaning of the Act is defined as follows:

“Products liability action” for purposes of this chapter shall include all actions brought for or on account of personal injury, death or property damage caused by or resulting from the manufacture, construction, design, formula, preparation, assembly, testing, service, warning, instruction, marketing, packaging or labeling of any product. It shall include, but not be limited to, all actions based upon the following theories: strict liability in tort; negligence; breach of warranty, express or implied; breach of or failure to discharge a duty to warn or instruct, whether negligent, or innocent; misrepresentation, concealment, or nondisclosure, whether negligent, or innocent; or under any other substantive legal theory in tort or contract whatsoever. Tenn. Code Ann. § 29-28-102(6).

Plaintiffs action against defendant American Hoist plainly falls within the above definition of a “products liability action” and is subject to the ten-year period of repose provided in Section 29-28-103(a). See Johnson County v. U.S. Gypsum Co., 580 F.Supp. 284-290 (E.D.Tenn.1984).

It is clear that section 29-28-103 was meant to supplement in part and supercede in part the statute of limitations for personal tort actions provided in Tenn.Code Ann. § 28-3-104. With the exception of three specific instances, section 29-28-103(a) sets an absolute ceiling on products liability suits against a manufacturer or seller. See Mathis v. Eli Lilly Co., 719 F.2d 134 (6th Cir.1983). The ten-year period applies “notwithstanding any exceptions” to section 28-3-104. Sections 28-3-104(b) is such an exception to the general one-year tort statute of limitations provided in section 28-3-104(a) and provides that a products liability action accrues from the date of injury rather than the date of negligence or sale of the product. In addition, section 28-3-104(b) provides that “under no circumstances shall [a products liability] cause of action be barred before [a person] sustains an injury.”

With the addition of the ten-year statute of repose, section 28-3-104 continues to apply so long as the action is brought against a seller or manufacturer within ten years of the date of the product’s initial purchase. After ten years, plaintiff’s cause of action could not arise, even though a remedy for the civil wrong had not been eliminated. Mathis, supra, at 145. Section 29-18-103 has therefore superceded and rendered a nullity, the “under no circumstances” clause of section 28-3-104(b). Consequently, the ten-year period of repose applies even if the injury occurred or was discovered after its expiration. Johnson County, supra; Buckner v. GAF Corp., 495 F.Supp. 351 (E.D.Tenn.1979).

Defendant American Hoist has presented evidence to the effect that the gantry crane which killed Milligan was purchased from American Hoist for use by TVA under a contract dated November 24, 1959, and that TVA has continuously owned the crane since May 26, 1960, the date upon which it took delivery. Milligan’s injury occurred on June 10, 1983. This action was filed on May 30, 1984, twenty-four years after the date of purchase. This Court therefore holds that the action against American Hoist is barred under the ten-year statute of repose.

Plaintiff contends, however, that the minor’s exception to the ten-year period, as recognized in Holt v. Hypro, 746 F.2d 353 (6th Cir.1984), tolled the period until one year after plaintiff reached the age of majority. Plaintiff’s contention is without merit. The Tennessee wrongful death statutes, Tenn.Code Ann. §§ 20-5-106 and 20-5-113, are of the survival type, which simply preserve any action which the decedent would have had. Jones v. Black, 539 S.W.2d 123 (Tenn.1976). The test is, therefore, whether plaintiff’s decedent, had he been alive, would have been permitted to bring this action under the law of Tennessee. As discussed above, such a suit would have been time barred.

Finally, plaintiff argues that Tenn.Code Ann. § 29-28-103 is unconstitutionally vague and ambiguous since it is susceptible of more than one interpretation. Plaintiff contends that a statute violates due process when an injured layman could come up with an interpretation of the statute different, from that which the courts have rendered. This Court would be hard pressed to declare unconstitutional a civil statute not alleged to burden any fundamental rights which is susceptible of only one informed interpretation.

Defendant American Hoist’s motion for summary judgment is therefore granted.

IT IS SO ORDERED.


author: DONALD E. O’BRIEN, Chief Judge.

text:
    Paul ENNIS, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services of the United States, Defendant.
    Civ. No. 84-313-E.
    United States District Court, S.D. Iowa, C.D.
    Sept. 3, 1985.

      Robert W. Pratt, Des Moines, Iowa, for plaintiff.
    Robert C. Dopf, Asst. U.S. Atty., Des Moines, Iowa, for defendant.
   ORDER

DONALD E. O’BRIEN, Chief Judge.

This matter came on for hearing on the 29th day of August, 1985, upon the supplemental application for an attorney fee filed by the counsel for plaintiff, Robert W. Pratt. After having heard the statements of counsel for the plaintiff and defendant having informed the Court that under the special circumstances of this case that the plaintiff’s attorney is entitled to 25% of the sum awarded and not at the rate of $125.00 per hour as previously ordered by the Court, the Court concludes that 25% of the sum awarded by the Secretary is appropriate under the circumstances set out below.

By virtue of a collective bargaining agreement with the International Union of United Automobile, Aerospace and Agricultural Implement Workers of America, the plaintiff is obligated to repay John Deere the sum of $17,199.00. The Court finds that since the money is going to John Deere as well as the claimant, a fee should properly be assessed as follows: 25% of the gross amount received by claimant plus 25% of the gross amount due John Deere, making a total fee in the sum of $10,275.80. The Court attaches to this order the award certificate issued by the Social Security Administration to the claimant and counsel on July 28, 1985, and makes particular reference to page 3 wherein the past due benefits are shown to have been $41,103.20 and the 25% or withheld figure to have ended in April 1985, the month before the Court’s favorable judgment.

Counsel for the plaintiff has indicated that the plaintiff has been informed of his Application for Supplemental and has no objection to the Court’s entry of same.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that counsel for the plaintiff is hereby authorized to charge the total sum of not to exceed $10,-275.80 in the percentages set out above.

IT IS FURTHER ORDERED that this Court’s Order of July 24, 1985 as it pertains to attorney fees is set aside.

APPENDIX

Social Security Award Certificate

From: Department of Health and Human Services

Social Security Administration

Date July 28, 1985

Claim Number: [ XXX-XX-XXXX ] HA

Type of Date of Monthly

Benefit Entitlement Benefit

DISABILITY 06/80 $604.20

06/81 $671.90

06/82 $721.60

12/83 $746.80

12/84 $772.90

Paul Ennis

219 4 St Apt 117

Des Moines IA 50309

Shortly after July 10,1985, you will receive a payment for $315.00 which represents all benefits due you through June 1985. Thereafter, a check for $757.00 will be sent to you each month.

Because of a change in the law, your regular payment will be rounded down to the dollar even though your monthly benefit of record may be in dollars and cents.

The next payment has been adjusted by $1,214.00, the amount of the special payments) received while work on this claim was being completed.

Your hospital insurance coverage under title XVIII of the Social Security Act begins June 1982.

Your medical insurance coverage under title XVIII of the Social Security Act begins July 1985.

This notice may be used if Medicare services are needed before you receive your health insurance card. You should receive your card within 4 weeks.

If you do not want medical insurance, complete the enclosed card and return it to us in the postage-free envelope by the date shown on the card. If you decide to decline coverage, any premiums paid or deducted will be refunded.

The payment you will receive shortly after July 10, 1985 will be adjusted by $15.50 for all medical insurance premiums due through July 1985. Medical insurance premiums will be deducted 1 month in advance.

A disabled wage earner becomes entitled to Hospital Insurance Benefits effective with the 25th month of entitlement to disability benefits.

A disabled wage earner can also become enrolled in Supplementary Medical Insurance effective with the 25th month of entitlement to disability benefits. Due to our current action you now have coverage and premium liability beginning June 1985. If you wish to have your coverage begin earlier, you have the right to choose coverage beginning June 1982, provided that within 30 days after the date of this notice you:

1. Submit a signed request for coverage beginning as of June 1982; and

2. Authorize the Social Security Administration to withhold the amount of $498.80 from your monthly benefits for premiums due from June 1982 through June 1985.

You also have the right to refuse Supplementary Medical Insurance coverage. If you refuse Supplementary Medical Insurance coverage, any premiums improperly deducted will be refunded to you.

If you return to work while you are still disabled, you may be entitled to a trial work period to test your ability to resume work. During this period you may work in as many as 9 months (which need not be consecutive) and still receive your disability benefit payments no matter how high your earnings. After the trial period has ended, we will consider the work you did in determining whether you have shown by your work activity that your disability has ended. However, you are not entitled to a trial work period if:

You are entitled to a period of disability but not to disability insurance cash benefits; or
You are receiving benefits in a second period of disability for which you did not have to complete a waiting period.

Responsibilities of People Receiving Disability Benefits

To prevent any incorrect payments, please notify us promptly if:

You have already returned to work when you receive this notice; or You return to work in the future, regardless of how much you earn.

Other events you need to report are listed in the enclosed booklet entitled “Your Social Security Rights and Responsibilities— Disability Benefits.” If you return to work, refer to pages 17, 18, and 19 for information about how working might affect your benefits.

Your claim will be reviewed from time to time to see if you are still eligible for benefits based on disability or blindness. When your claim is reviewed, you will be contacted if there is any question as to whether your eligibility continues.

The change in benefit rates is due to amendments to the Social Security Act. Section 206(b)(1) of the Social Security Act provides that your attorney may ask the court to approve a fee not to exceed 25 percent of past benefits due you. The past-due benefits are those which are payable through April 1985, the month before the month the court's decision was rendered. Accordingly, we are withholding the amount of $10,275.80 which represents 25 percent of your past-due benefits of $41,103.20 pending action by the court on the amount of the attorney’s fee. The amount withheld will be applied against the fee set by the court and will be mailed directly to your attorney; any remaining amount will be sent to you. The amount of your first payment includes benefits through June 1985.

You are not eligible for any type of benefit other than what is stated on this certificate. Entitlement to another benefit on this or any other record in the future requires a separate application.

We are sending a copy of this notice to your attorney.

This action is in accordance with the decision of the United States District Court.

If you believe that this determination is not correct, you may request that your case be reexamined. If you want this reconsideration, you must request it not later than 60 days from the date you receive this notice. You may make any such request through any Social Security office. If additional evidence is available, you should submit it with your request.

Acting Commissioner of Social Security

This certifies that you (or the person(s) on whose behalf you applied), became entitled under the Social Security Act to the Social Security benefits shown.


author: HODGES, Chief Judge.

text:
    The ISALY COMPANY, Plaintiff, v. KRAFT, INC., Defendant.
    No. 82-517 Civ-T-10.
    United States District Court, M.D. Florida, Tampa Division.
    Sept. 3, 1985.
    Rodney Morgan, L. David Shear, Shear, Newman & Hahn, P.A., Tampa, Fla., Joseph Diamante, Michael C. Stuart, Robert M. Kunstadt, Barry D. Rein of Pennie & Edmonds, New York City, for plaintiff.
    Thomas T. Steele, Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, Fla., Jerome Gilson, Susan C. Cramer, Gary M. Ropski, Willian, Brinks, Olds, Hofer, Gilson & Lione, Ltd., Chicago, 111., for defendant.
   ORDER

HODGES, Chief Judge.

Before the Court is the Defendant’s Motion to Stay Injunction and Damages Proceeding Pending Appeal.

Pursuant to Rule 62(c), F.R.Civ.P., “the court in its discretion may suspend ... an injunction during the pendency of an appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party.” The factors to be considered in determining whether to grant a stay pending appeal are:

(1) whether the movant has made a showing of likelihood of success on the merits, (2) whether the Movant has made a showing of irreparable injury if the stay is not granted, (3) whether the granting of the stay would substantially harm the other parties, and (4) whether the granting of the stay would serve the public interest.

Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir.1981). Having decided for Plaintiff on the facts and the law, I am obviously not disposed to find that the Defendant now enjoys a likelihood of success on the appeal.

However, there is an alternative test to be applied. The Defendant “need only present a substantial case on the merits when a serious legal question is involved and show that the balance of the equities weighs heavily in favor of granting a stay.” Id. It is clear that the Plaintiff will present substantial issues on its appeal. Moreover, in balancing the present equities, it is probable that denying a stay would moot the appeal for all practical and economic purposes. The status quo would be altered and the Defendant would be forced to incur substantial costs in changing its package design and advertising the new changes. Once these costs are incurred, the Defendant would find little or no value in reverting to its original packaging even if it should prevail on appeal.

Plaintiff, who has been injured by Defendant’s wrongful conduct, will continue to be injured if the stay is granted. However, these damages will be compensable should the Defendant lose on its appeal. In addition, the Plaintiff’s interests can be protected by requiring an appropriate bond.

Upon due consideration, the Motion to Stay Injunction and Damages Proceedings Pending Appeal is hereby GRANTED, and the injunction is stayed subject to the posting of appropriate security in the amount of Five Hundred Thousand Dollars ($500,-000.00) conditioned to pay all costs or damages should it be determined that this stay was improvidently granted.

IT IS SO ORDERED.

        Ruiz represents the law of the Eleventh Circuit on this issue at this time. Bonner v. City of Prichard, Alabama, 661 F.2d 1206, 1207 (11th Cir.1981).


text:
    Tom RALLIS, et al., Plaintiffs, v. HOLIDAY INNS, INC., et al., Defendants.
    No. 85 C 1001.
    United States District Court, N.D. Illinois, E.D.
    Sept. 5, 1985.
   MEMORANDUM OPINION AND ORDER

ROVNER, District Judge.

Presently pending before this Court is the motion of certain defendants to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted. Moving defendants, Jupiter M & W Corp., Wolf Point Hotel Corp., and Management Group, Inc., are alleged to be “Owners” of a share of a hotel/restaurant commonly known as Holiday Inn Mart Plaza located in Chicago.

Moving defendants contend first that Counts I and II of the complaint must be dismissed because plaintiffs do not allege that the moving defendants are “employers” as required to state a claim for a violation of Section 301(a) of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185(a), et seq. Plaintiffs respond by agreeing that they “did not utilize the magic word ‘employer’ to describe the relationship of [moving defendants] to plaintiff class,” but that, in essence, sufficient allegations exist in the complaint from which the Court may infer that the moving defendants are in fact “employers” or parties to the collective bargaining agreement. After an examination of the complaint, this Court is not persuaded that such an inference may be drawn. Moreover, if plaintiffs can allege in good faith consistent with their obligations under Rule 11 that the moving defendants are “employers” or parties to the collective bargaining agreement so that they may be liable under Section 301(a) of the LMRA, or that they are liable as such for the acts of their agents under Section 301(b), they should do so plainly and explicitly so that there is no room for doubt or argument.

Similarly, moving defendants contend that Counts II and III of the complaint alleging violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq., should also be dismissed because plaintiffs never allege that any moving defendant is an employer as defined in Section 3(d) of the FLSA, 29 U.S.C. § 203(d). For the same reasons stated above as to the allegations under the LMRA, this Court agrees. Either the defendant owners are “employers” or they are not, regardless of whether they operated through their agents. If they are “employers” within the meaning of the FLSA, an allegation to that effect should be explicitly stated in the complaint. Accordingly, Counts I, II, and III of the complaint are dismissed against the moving defendants, but plaintiffs are granted leave to file an amended complaint within 30 days from the date of this opinion if they can do so consistent with this opinion and consistent with the good faith obligations of Rule 11.

Because the complaint must be amended in any event, this Court will also require that the plaintiffs must plead their allegations of fraud with greater particularity than now appears in the complaint pursuant to Fed.R.Civ.P. 9(b). Although it is not necessary that plaintiffs identify each and every fraudulent act that allegedly occurred repeatedly over the course of an eight year period, the plaintiffs should provide some specific examples by identifying the dates and times, the individuals involved, and the circumstances constituting the alleged fraud. This Court will not allow this lawsuit to be turned into a fishing expedition by which discovery will flush out the details of the complaint. If plaintiffs have such details now, they should be set forth explicitly. If not, plaintiffs have not met their Rule 11 obligations to ascertain that a basis exists in fact for pleading fraud.

Moving defendants also contend that plaintiffs’ claims for alleged breaches of the collective bargaining agreement should be dismissed because plaintiffs do not allege sufficiently that they exhausted their contractual remedies. Plaintiffs’ complaint alleges that their grievances were ignored after they had filed more than 20 oral and written grievances over an eight year period of time. These allegations suggest that exhaustion of contractual remedies would indeed have been futile, as plaintiffs allege, but plaintiffs do not allege exhaustion of whatever intra-union remedies might have been available for Local l’s alleged wrongful failure to act on the grievances. Plaintiffs’ conclusory allegation that even resort to intra-union remedies would have been futile is insufficient to meet the necessity of a “clear and positive” showing of futility before the exhaustion requirement can be excused. Thus, plaintiffs will be required to allege futility of exhaustion with greater particularity if they submit an amended complaint.

Finally, moving defendants argue that punitive damages are not available under either the LMRA or the FLSA, and thus Count III seeking a judgment in the amount of $10,000,000 in punitive damages must be dismissed. Plaintiffs do not respond to the moving defendants’ argument that punitive damages are not available under the FLSA, and thus to the extent that such damages are requested under the FLSA, Count III is dismissed. As far as the LMRA is concerned, although some courts have permitted the award of punitive damages under the LMRA, see e.g., Sidney Warner & Sons v. Milk Drivers Union, Local 753, International Brotherhood of Teamsters, 249 F.Supp. 664 (N.D.Ill.1966), those cases were handed down well before the Supreme Court’s holding in Electrical Workers v. Foust, 442 U.S. 42, 52, 99 S.Ct. 2121, 2127, 60 L.Ed.2d 698 (1979) that punitive damages could not be awarded against a union in a duty of fair representation suit. In so far as the moving defendants are concerned, this case is purportedly a suit against the employer, not against the union, and the union has not moved to dismiss Count III. Because neither party has adequately briefed the issue of whether punitive damages are currently available under the LMRA in a suit against the employer, and because the complaint must be amended in any event, this Court declines to reach the issue at this time.

Accordingly, the moving defendants’ motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim is granted, but plaintiffs are granted leave to file an amended complaint within 30 days consistent with this opinion if they can do so in good faith under Fed.R.Civ.P. 11. It is so ordered.


text:
    Marcia P. LINCOLN v. STERLING DRUG, INC.
    Civ. No. H-85-109 (MJB).
    United States District Court, D. Connecticut.
    Sept. 10, 1985.
    Joseph D. Garrison, Garrison, Kahn, Crone & Silbert, New Haven, Conn., for plaintiff.
    Robert Volpe, Hartford, Conn., for defendant.
   RULING ON MOTION TO DISMISS

BLUMENFELD, Senior District Judge. Facts

The plaintiff alleges in her complaint that she was hired by the defendant as a sales representative on January 25, 1982, and discharged on March 13, 1984. During the course of her employment, she was a productive employee and received both a sales award and a positive evaluation of her performance. She was given no notice that she was being considered for termination, and was not placed on probation. She alleges that her termination without such notice “breached defendant’s own personnel policies and procedures for termination as set forth in its employee relations manual or handbook.” Complaint, ¶ 12. She sues for damages.

This court’s jurisdiction is based on diversity of citizenship. Defendant has moved to dismiss the complaint on the ground that it does not state a claim on which relief can be granted.

Discussion

For the purpose of deciding this motion, the facts alleged in the complaint are taken as true. Fine v. City of New York, 529 F.2d 70, 75 (2d Cir.1975). Moreover, the complaint’s allegations are to be liberally construed, see 2A Moore’s Federal Practice II 12.07[2.-5], and construed so as to do substantial justice. Fed.R.Civ.P. 8(f); 2A Moore’s Federal Practice 118.34. With these principles in mind, the court views the complaint as having alleged that defendant breached implied contractual obligations, arising from the terms of the employee relations manual, which terms are alleged to have been an implied part of the employment agreement between plaintiff and defendant. See Sailer v. G.A.B. Business Services, Inc., Civ. No. N-84-237, slip op. (D.Conn. April 25, 1985) (Ruling on Defendant’s Motions to Partially Dismiss the Complaint and to Strike the Jury Demand and Prayer for Compensatory and Punitive Relief) (Burns, J.).

As Judge Burns noted in Saller, the Connecticut Supreme Court has not yet decided whether a complaint such as this states a cause of action under the law of Connecticut. This court is therefore faced with the task of predicting what the Connecticut Court would decide if it were presented with this complaint.

Consideration of the Connecticut Supreme Court’s likely view on this matter must begin with the recent decision in Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 479 A.2d 781 (1984). In Magnan, the court held that although a covenant of good faith and fair dealing would be implied in an employment contract, that principle would not be applied “to transform a contract of employment terminable at the will of either party into one terminable only at the will of the employee or for just cause.” Id. at 569, 479 A.2d 781. The court was not faced with an allegation that the discharge breached contractual terms that were contained in an employee relations manual, but stated in dictum:

For those employees not protected by collective bargaining agreements, civil service statutes or other laws, the courts have occasionally found an implied promise to discharge only for cause in the circumstances or particular employment relationships. Sometimes the promise has been found in the representations contained in an employee relations manual or handbook.

Id. at 564, 479 A.2d 781 (footnote omitted). The decision in Magnan left open the question of whether Connecticut would recognize such promises.

In Bilbao v. Wyatt, Inc., 9 Conn.L.Trib. No. 45 at 14 (Sup.Ct. June 6, 1983), the Connecticut Superior Court dealt with the question left open in Magnan. In Bilbao, the court found that representations made in an employee handbook could be implied into the employment contract. “While an employer need not establish personnel policies or practices, where an employer chooses to establish such policies and practices and makes them known to its employees, it commits itself to discharge employees in compliance with those procedures.” Id. at 15. The court went on to hold that consideration for the employer’s promises, contained in the handbook, was furnished by plaintiff’s reliance on the handbook in continuing in the defendant’s employ. Id.

Relying on Magnan and Bilbao, Judge Burns held in Saller, supra, that under Connecticut law the terms of a personnel manual would be considered terms of the employment contract. “Although the case law in Connecticut on the issue of whether enforceable terms of employment contract provisions can be found in a personnel manual is sparse, the logic of Magnan and Bilbao indicate that plaintiff may have a viable state law claim under a properly pleaded complaint.” Saller, slip op. at 5.

As Judge Burns also pointed out, the modern trend among state courts is toward recognition of “implied in fact contract terms” inferred from employee manuals, handbooks, and the like. Saller, slip op. at 2 (citing Lopatka, The Emerging Law of Wrongful Discharge, 40 The Business Lawyer 1, 17). Indeed, within the past few months the Supreme Courts of both Arizona and New Jersey recognized a cause of action based on the breach of just such implied terms in employment contracts. Woolley v. Hoffmann-LaRoche, 99 N.J. 284, 491 A.2d 1257 (1985); Wagenseller v. Scottsdale Memorial Hospital, 147 Ariz. 370, 710 P.2d 1025 (1985). In the latter case, the Arizona court aptly stated the rationale for recognizing this cause of action:

Employers are certainly free to issue no personnel manual at all or to issue a personnel manual that clearly and conspicuously tells their employees that the manual is not part of the employment contract and that their jobs are terminable at the will of the employer with or without reason. Such actions, either not issuing a personnel manual or issuing one with clear language of limitation, instill no reasonable expectations of job security and do not give employees any reason to rely on representations in the manual. However, if an employer does choose to issue a policy statement, in a manual or otherwise, and, by its language or by the employer’s actions, encourages reliance thereon, the employer cannot be free to only selectively abide by it.

Wagenseller, 147 Ariz. at 382, 710 P.2d at 1037 (quoting Leikvold v. Valley View Community Hospital, 141 Ariz. 544, 548, 688 P.2d 170, 174 (1984)).

For the foregoing reasons, I am persuaded that the Connecticut Supreme Court, if presented with the complaint in this case, would hold that it states a cause of action for breach of contract. Therefore, defendant’s motion to dismiss is denied.

SO ORDERED.

      . In neighboring New York, the employer’s right to discharge an at-will employee at any time and for any reason, absent an express limitation in the employment contract, remains unimpaired. Murphy v. American Home Products Corp., 58 N.Y.2d 293, 305, 461 N.Y.S.2d 232, 237, 448 N.E.2d 86, 91 (1983). However, in Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 457 N.Y.S.2d 193, 443 N.E.2d 441 (1983), the court held that the terms of a company personnel handbook constituted an express contractual limitation on the employer’s right to discharge the at-will employee. See the discussion in Gorrill v. Icelandair/Flugleidir, 761 F.2d 847, 851-53 (2d Cir.1985).


author: HAND, Chief Judge.

text:
    TRAVELERS INSURANCE COMPANY, a corporation, Plaintiff, v. Agatha HARVILLE, Individually and as the Administratrix of the Estate of Samuel Williams; Gurther Dean Thompkins Williams, Defendants.
    Civ. A. No. 85-0786-X-C.
    United States District Court, S.D. Alabama, N.D.
    Sept. 12, 1985.
    Wade K. Wright, Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, Ala., for plaintiff.
    Barry R. Bennett, Hobbs & Hain, Selma, Ala., for defendant Gurther Dean Thompkins Williams.
   ORDER

HAND, Chief Judge.

This action is an interpleader action under 28 U.S.C. § 1335, brought by the Travelers Insurance Co. as disinterested stakeholder seeking to force the two allegedly adverse claimants to litigate the right to the two thousand dollars ($2,000.00) in proceeds from a policy of life insurance. This Court now raises, for the first time, the question of whether it has jurisdiction of this action. Federal courts, being courts of limited jurisdiction, are required to question their jurisdiction sua sponte if no party raises a jurisdictional defect. See Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908); 13 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3522 at 70 (1984).

The complaint herein invoked this Court’s jurisdiction on the basis that section 1335 allows this interpleader action. Section 1335 of Title 28 states, in pertinent part, as follows:

(a) The district court shall have original jurisdiction of any civil action of interpleader or in the nature of interpleader filed by any person, firm, or corporation, association, or society having in his or its custody or possession money or property of the value of $500 or more, or having issued a note, bond, certificate, policy of insurance, or other instrument of value or amount of $500 or more, or providing for the delivery or payment or the loan of money or property of such amount or value, or being under any obligation written or unwritten to the amount of $500 or more, if
(1) Two or more adverse claimants, of diverse citizenship as defined in section 1332 of this title, are claiming or may claim to be entitled to such money or property, or to any one or more of the benefits arising by virtue of any note, bond, certificate, policy or other instrument, or arising by virtue of any such obligation____

28 U.S.C. § 1335(a)(1) (1976). The plaintiffinterpleader has tendered into court more than $500.00, so the issue is whether there are properly diverse parties. The statute requires “[t]wo or more adverse claimants, of diverse citizenship.” Both claimants in this action are citizens of Alabama, while Travelers is a citizen of the states of Connecticut and Delaware. (Corporations are citizens of both the state in which they are incorporated and the state in which their principal place of business is located. 28 U.S.C. § 1332(c) (1976)). There is only diversity, therefore, between the stakeholder and the claimants, not between the claimants themselves. The statute plainly requires, however, and the decisions have interpreted it to require, diversity of citizenship between the claimants, without regard to the citizenship of the disinterested stakeholder. See State Farm Fire & Cas. Co. v. Tashire, 386 U.S. 523, 530, 87 S.Ct. 1199, 1203, 18 L.Ed.2d 270 (1967); Treinies v. Sunshine Mining Co., 308 U.S. 66, 71-72, 60 S.Ct. 44, 47-48, 84 L.Ed. 85 (1939); Dakota Livestock Co. v. Keim, 552 F.2d 1302 (8th Cir.1977); Haynes v. Felder, 239 F.2d 868 (5th Cir.1957); 13B C. Wright, supra, § 3605 at 405. Cf. Lummis v. White, 629 F.2d 397 (5th Cir.1980), rev’d on other grounds, sub nom Cory v. White, 457 U.S. 85, 102 S.Ct. 2325, 72 L.Ed.2d 694 (1982).

As both claimants are citizens of Alabama, there is plainly no diversity of citizenship as defined in section 1332 of Title 28. This Court is therefore without jurisdiction under section 1335 of Title 28.

The Court is also without jurisdiction under “rule interpleader” as defined in Rule 22(1) of the Federal Rules of Civil Procedure, which requires that more than $10,000.00 be at stake. Fed.R.Civ.P. 22(1). See 7 C. Wright, supra, § 1710 at 412-13. Therefore there is no basis for this Court to exercise jurisdiction, and this case must be dismissed.

Accordingly, it is hereby ORDERED that this case be, and it is, DISMISSED, for lack of subject matter jurisdiction. Costs are taxed against the plaintiff, Travelers Insurance Co.