author: WARREN, District Judge.

text:
    Mary F. LEWIS, Plaintiff, v. CHARLES H. BENTZ ASSOCIATES, INC., Defendant.
    No. 84-C-0953.
    United States District Court, E.D. Wisconsin.
    Jan. 9, 1985.

      Boris Sodos, Sodos, Schuman & Pieper, Milwaukee, Wis., for plaintiff.
    Barry L. Chaet and Kevin J. Kinney, Krukowski & Associates, S.C., Milwaukee, Wis., for defendant.
   DECISION AND ORDER

WARREN, District Judge.

Presently before the Court in this matter is the motion of plaintiff Mary F. Lewis to remand this case, pursuant to 28 U.S.C. § 1447(c), to the state circuit court from which it was removed. The Court has determined, for the reasons stated below, that the arguments articulated by the plaintiff in support of her request for remand do not justify the relief sought and that the motion must therefore be denied.

BACKGROUND

This action was initiated on July 5, 1984, when the plaintiff filed her complaint in the Wisconsin Circuit Court for Milwaukee County. By her original complaint, the plaintiff alleged that she entered into an employment contract with the defendant for a one-year period beginning January 1, 1984, at a salary of $28,000. The plaintiff further charged that on April 13, 1984, the defendant notified her by letter that her employment would be terminated at the end of that month. Finally, the plaintiff claimed that notwithstanding her demands for payment of her monthly salary, the defendant had failed and refused to make such payments for the months of May and June, representing a total amount allegedly due and owing of $4,666.67.

In addition to her demand in that amount, the plaintiff also sought judgment for those sums which would become due each month throughout the remainder of 1984, pursuant to the one-year employment contract. Finally, the plaintiff demanded judgment for the payment or maintenance of the health insurance program provided by the defendant, along with reasonable costs and attorneys’ fees incurred in the prosecution of this matter.

Two weeks after this action was commenced, on July 19, 1984, the defendant filed its petition for removal, pursuant to 28 U.S.C. §§ 1441 & 1446, and the matter was randomly assigned to this Court for all further proceedings. At the same time, the defendant filed its answer to the original complaint, denying all substantial allegations incorporated therein and raising four affirmative defenses — namely, the plaintiff’s own. inability or refusal to perform under the employment contract, the statute of frauds, accord and satisfaction, and failure to state a claim upon which relief might be granted.

Shortly thereafter, on July 31, 1984, the plaintiff filed the present motion to remand this action to the state court from which it was removed. In principal support of her motion, the plaintiff offers an amended complaint, setting forth the same seminal allegations as the original but incorporating a claim of mitigation of damages, based on her reemployment in mid-July of 1984, some two and one-half months after the alleged termination from the defendant’s employment.

The upshot of the plaintiff’s request for remand is that in thus mitigating her damages, she has reduced the actual amount in controversy in this matter to a sum below the jurisdictional prerequisite of $10,000, as established in 28 U.S.C. § 1332(a). As a peripheral matter, the plaintiff also argues in her supporting memorandum that the defendant failed to properly allege the diversity of citizenship of the parties in its removal petition of July 19, 1984. For these companion reasons, the plaintiff requests that this matter be remanded to the Wisconsin Circuit Court for Milwaukee County, pursuant to 28 U.S.C. § 1447(c).

On August 13, 1984, the defendant filed its brief in opposition to the plaintiff’s present motion, recounting briefly the procedural history of this case and contending that neither of the arguments advanced by the movant justifies the relief sought. In particular, the defendant argues, based on considerable authority, that the plaintiff, in circumstances like the present, cannot compel remand by amending the complaint to reduce the jurisdictional amount after the. action has been properly removed to federal court. Furthermore, while questioning whether the issue of the parties’ diversity is properly raised by the plaintiff’s motion, counsel for the defendant nonetheless provides the Court with an affidavit affirming his knowledge of the plaintiff’s Wisconsin citizenship — an affirmation supplemented on August 22, 1984, with a second affidavit reporting the plaintiff’s own confirmation of her Wisconsin citizenship.

Also filed on August 13, 1984, was the defendant’s answer to the amended complaint, denying, as in the answer to the original complaint, all substantive allegations made by the plaintiff and raising, as before, four affirmative defenses. To date, the plaintiff has not filed a reply to the defendant’s answering brief, and the time for interposition of such a document has long passed. Accordingly, the Court today resolves the present petition for remand based on the plaintiff’s moving papers, the defendant’s responsive brief and supporting affidavits, and its own understanding and application of the relevant law.

28 U.S.C. §§ 1332(a), 1441(a), & 1447(c) AND THE PLAINTIFF’S MOTION TO REMAND

As both parties to this action acknowledge in their opposing briefs, this action was removed to federal court pursuant to 28 U.S.C. § 1441(a), which provides for the removal of “any civil action brought in a state court of which the district courts of the United States have original jurisdiction____” In a case such as this, the Court’s original jurisdiction is established by 28 U.S.C. § 1332(a)(1), since “the matter in controversy exceeds the sum of value of $10,000, exclusive of interest and costs, and is between ... citizens of different states.” Of course, as indicated above, the plaintiff’s challenge to the propriety of removal is premised on the dual arguments that the defendant, in its removal petition, failed to establish the diversity of the parties and that the amount in controversy, as set forth in the plaintiff’s amended complaint, no longer exceeds the $10,000 jurisdictional prerequisite.

As to the first of these conditions, it is well established that the diversity of parties, as prescribed by 28 U.S.C. § 1332(a), must be complete — that is, that all indispensable parties with claims on one side of the controversy must be citizens of different states from all indispensable parties with claims on the other. See Krupnick v. Union National Bank, 470 F.Supp. 1037, 1038 (W.D.Pa.1979); Schetter v. Heim, 300 F.Supp. 1070, 1072 (E.D.Wis. 1969). Indeed, if the citizenship of any plaintiff is identical to that of any defendant in an action premised on the jurisdictional prescription of 28 U.S.C. § 1332(a), diversity is completely destroyed. See Owen Equipment & Erection Company v. Kroger, 437 U.S. 365, 373, 98 S.Ct. 2396, 2402, 57 L.Ed.2d 274 (1978); Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806).

This Court has itself recently invoked these well-established principles regarding federal diversity jurisdiction in finding that the amendment of a complaint to join a nondiverse, yet necessary, party as an additional defendant necessitated remand to the state court from which the action was removed. See Wimes v. Eaton Corporation, 573 F.Supp. 331 (E.D.Wis.1983). In that case, the Court found that the joinder of another indispensable Wisconsin defendant whose interests were clearly adverse to those of the Wisconsin plaintiff destroyed the diversity jurisdiction invoked by the Ohio defendant in its removal petition, filed pursuant to 28 U.S.C. § 1332(a) & 1441(a).

In the present case, however, the Court finds that the parties are, indeed, diverse and that remand on this basis alone would thus not be justified. Although the plaintiff’s argument in this context is that the defendant has alleged in its removal petition only that the plaintiff is a resident— not a citizen — of the State of Wisconsin, it is apparent that any question as to the plaintiff’s citizenship has now been resolved: By his affidavit of August 22,1984, counsel for the defendant affirms that at the plaintiff’s deposition of August 17, 1984, she confirmed her Wisconsin citizenship. See also Affidavit of Barry L. Chaet (August 13, 1984) (“... to [his] knowledge and belief, the plaintiff ... is domiciled in, resides in, and is a citizen of the State of Wisconsin”).

This, coupled with the apparently undisputed fact that the defendant is a foreign corporation doing business in Wisconsin, leads perforce to the conclusion that the parties to this action are, indeed, diverse. The Court does not view the defendant’s allegation of the plaintiff’s residency — as opposed to citizenship — as so egregious a deficiency in the removal petition as to justify remand to the state tribunal. While recognizing that some courts have found such a technical infirmity a sufficient basis upon which the propriety of removal might be challenged, see, e.g., Wells v. Celanese Corporation of America, 239 F.Supp. 602, 604 (E.D.Tenn.1965); Ezekiel v. Jones Motor Company, 377 F.Supp. 273, 275 (D.Mass.1974), this Court declines the plaintiff’s invitation to place form above substance and will instead permit the further litigation of this matter in the federal forum.

Likewise, the Court does not regard the plaintiff’s amendment to her complaint, arguably reducing the amount in controversy to a sum below $10,000, as a sufficient basis upon which to grant the present motion. To be sure, 28 U.S.C. § 1332(a) establishes federal diversity jurisdiction only when the amount in controversy exceeds $10,000, exclusive of interest and costs. See Clark v. National Travelers Life Insurance Company, 518 F.2d 1167, 1169 (6th Cir.1975); P.H. Glatfelter Company v. Thomas A. Galante & Sons, Inc., 236 F. Supp. 1022, 1023 (N.D.N.Y.1964). As a general rule, however, the amount in controversy for purposes of the Court’s diversity jurisdiction is determined at the time the action is commenced. Commercial Credit Corporation v. Lane, 466 F.Supp. 1326, 1329 (M.D.Fla.1979); Esler v. Northrop Corporation, 86 F.R.D. 20, 27 (W.D. Mo.1979).

The logical corollary to this rule is that in an action initiated in state court, the federal tribunal must determine whether the $10,000 jurisdictional requirement is met at the time of removal. Rosenberg v. G.W.V. Travel, Inc., 480 F.Supp. 95, 96 (S.D.N.Y.1979); Joint School District v. Joseph P. Jansen Company, 324 F.Supp. 1399, 1400 (E.D.Wis.1971). In this undertaking, it is to the plaintiff’s original petition or complaint to which the federal court must look in determining whether the removal procedures of 28 U.S.C. § 1446 are properly invoked. American Fire & Casualty Company v. Finn, 341 U.S. 6, 14-16, 71 S.Ct. 534, 540-41, 95 L.Ed. 702 (1951); Bellamy Explosives Company, Inc. v. Atlas Powder Company, 452 F.Supp. 6, 7 (E.D.Tenn.1977).

It is equally well established that once a case is properly removed, the plaintiff cannot successfully do anything to defeat federal jurisdiction and force a remand — a proposition articulated clearly by the United States Supreme Court in St. Paul Mercury Indemnity Company v. Red Cab Company, 303 U.S. 283, 291-292, 58 S.Ct. 586, 591-92, 82 L.Ed. 845 (1938), as follows:

... of course, if, upon the face of the complaint, it is obvious that the suit cannot involve the necessary amount, removal [to federal court] will be futile and remand [to state court] will follow. But the fact that it appears from the face of the complaint that the defendant has a valid defense, if asserted, to all or a portion of the claim, or the circumstance that the rulings of the district court after removal reduce the amount recoverable below the jurisdictional requirement, will not justify remand. And though, as here, the plaintiff after removal, by stipulation, by affidavit, or by amendment of his pleadings, reduces the claim below the requisite amount, this does not deprive the district court of jurisdiction.
Thus events occurring subsequent to removal which reduce the amount recoverable, whether beyond the plaintiff’s control or the result of his volition, do not oust the district court’s jurisdiction once it has attached (emphasis added).

The principle has been widely invoked to preclude plaintiffs in federal court from amending their pleadings to state claims for amounts equal to or less than the $10,-000 prerequisite of 28 U.S.C. § 1332(a) as a means of compelling remand. See, e.g., Swafford v. Transit Casualty Company, 486 F.Supp. 175, 177 (N.D.Ga.1980) (by deleting claim for punitive damages, plaintiff cannot divest federal court of jurisdiction once it has attached); Golatte v. Mathews, 394 F.Supp. 1203, 1205 (M.D.Ala.1975) (amendment of complaint to state damages of only $9,950 does not strip court of jurisdiction over removed case); Albright v. R.J. Reynolds Tobacco Company, 531 F.2d 132, 134-136 (3d Cir.) cert. denied, 426 U.S. 907, 96 S.Ct. 2229, 48 L.Ed.2d 832 (1976) (likewise); Beddings v. Great Eastern Stages, 6 F.Supp. 529, 530 (E.D.Ill.1959) (likewise).

As indicated above, there is no dispute that, at the time the defendant filed its removal petition in this action, the amount in controversy exceeded $10,000; in fact, the original claim was calculable at an amount well in excess of $18,000. It is only by way of her amended complaint, in which she asserts mitigation of damages through reemployment, that the amount in controversy drops to an amount only slightly in excess of $8,000, exclusive of interest and costs.

While the plaintiff’s apparent mitigation of her damages is commendable, it is clear, from the overwhelming weight of the authority cited above, that it cannot form the basis upon which a remand order might reasonably issue. The Court’s jurisdiction over this matter attached on July 19, 1984, when the defendant properly filed its removal petition. The filing of the plaintiff’s amended complaint some twelve days later, arguably reducing the amount in controversy to a sum below $10,000, does nothing to strip this Court of jurisdiction under 28 U.S.C. § 1332(a). Accordingly, the Court must conclude, in the language of 28 U.S.C. § 1447(c), that the case is not in this forum “improvidently and without jurisdiction,” warranting the plaintiff’s request for remand.

CONCLUSION

For the reasons articulated above, the Court hereby DENIES the plaintiff’s motion for an order remanding this case to the Wisconsin Circuit Court for Milwaukee County, pursuant to 28 U.S.C. § 1447(c).

In order to ensure that the prosecution and defense of this matter now proceed apace, the Court has scheduled a brief status conference for 9:30 a.m., on Friday, January 25, 1985. Counsel for both parties are instructed to come to the hearing prepared to discuss their expectations regarding discovery, the filing of dispositive motions, and further pretrial proceedings.

      . In her original complaint, the plaintiff sought judgment, in part, in the amount of $4,666.67, representing the salary payments allegedly due and owing pursuant to the subject employment contract for the two months following her termination and prior to the initiation of this action in state court — namely, for the months of May and June of 1984. Significantly, the plaintiff also sought judgment against the defendant "for the amount which shall become due each and every month hereafter in accordance with said contract less any mitigation from future employment which plaintiff may obtain.” Plaintiffs Original Complaint at 2 (July 3, 1984). Finally, the plaintiff sought payment or maintenance of the health insurance program supplied by her former employer-defendant and for reasonable costs and attorneys’ fees.
      Since the one-year employment contract provided for a salary of $28,000, the defendant’s potential liability on the contract alone totalled $18,666.66 for the eight months from May through December of 1984. The additional claims for insurance benefits and litigation costs only served to increase further an amount in controversy well in excess of the $10,000 jurisdictional prerequisite.

      . In her amended complaint, the plaintiff continues to seek judgment in the amount of $4,666.67 for the months of May and June but alleges in mitigation of her damages for the remainder of the contract term that she began employment with the United Performing Arts Center on July 15, 1984, at an annual salary of $23,000. Accordingly, the plaintiff now claims that the defendant owes her salary'payments, in part, in the amount of $5,833.33, representing the sum due and owing for the two and one-half month period from May 1 through July 15, 1984. She also charges that the defendant owes her "the difference between plaintiffs salary of $28,000.00 per year for the job plaintiff had with defendant, and plaintiff's present salary of $23,000.00 per year, for the balance of the year 1984, July 15 through December 31, 1984, total-ling five and one-half months, said difference in salary amounting to $2,291.63 for these five and one-half months.” Plaintiffs amended Complaint at 2 (July 31, 1984).
      Thus, the plaintiff's present total prayer for judgment is in the amount of $8,124.96, exclusive of interest and costs. She has apparently decided not to pursue her related claim for the amount of the health insurance benefits previously provided by the defendant.


source: Caselaw Access Project

author: ELMO B. HUNTER, Senior District Judge.

license: Public Domain

text:
    William F. RAMM, Plaintiff, v. DEMPSTER SYSTEMS, INC., Defendant.
    No. 83-0417-CV-W-3.
    United States District Court, W.D. Missouri, W.D.
    Jan. 9, 1985.

      Kelly L. McClelland, Kansas City, Mo., for plaintiff.
    Allan L. Bioff, Kansas City, Mo., for defendant.
   OPINION AND ORDER GRANTING SUMMARY JUDGMENT ON COUNT ONE

ELMO B. HUNTER, Senior District Judge.

Before the Court is defendant’s motion for summary judgment. Defendant argues that, under the undisputed facts, the Missouri service letter statute does not contemplate control over defendant, that Missouri law should not be applied under Missouri’s choice of law rules, and that application of the statute would violate the Fifth and Fourteenth Amendments of the United States Constitution.

Defendant is an Ohio corporation with its principal place of business in Knoxville, Tennessee. On October 28, 1981, plaintiff inquired through the mail about employment with defendant. Plaintiff’s letter was sent from Florida. On November 2, 1981, defendant responded that there were then no openings, but that his letter would be kept on file.

In early 1982, while plaintiff was residing in Kansas City, Missouri, plaintiff discovered that defendant was looking for a district sales manager to replace the one previously living in the Houston, Texas, area. Plaintiff phoned defendant about this opening. On February 25, 1982, defendant’s personnel director telephoned from Tennessee to plaintiff’s residence in Kansas City to arrange an interview in Tennessee.

On March 8, 1982, defendant’s personnel director again called plaintiff in Kansas City from Tennessee, this time to extend an offer of employment. Plaintiff accepted this offer and agreed to go to Knoxville. On March 10, plaintiff went to Knoxville for a physical exam and three days of training and orientation. While in Knoxville plaintiff signed an Employment Agreement required by defendant as a prerequisite for employment. The agreement provided, inter alia, that “this agreement ... supersedes any and all agreements of every kind relating to my employment ... heretofore entered into by and between [Dempster] and me.” Defendant began paying plaintiff on March 10.

Plaintiff was employed as Midwestern District Sales Manager covering thirteen states including Missouri. Plaintiffs job required extensive travel throughout his district.

Plaintiff was not required to live in Missouri. The previous sales manager lived in Houston, Texas. Plaintiff in fact changed his residence to Lenexa, Kansas, in July of 1982, while employed by defendant. Throughout plaintiffs employment with defendant, he was instructed to use his home as a business office.

The decision to terminate plaintiff was made in Knoxville, Tennessee, on or about September 3, 1982. Defendant’s representative phoned plaintiff and arranged a meeting at Kansas City International Airport to discuss business matters. On September 8, at the arranged meeting, plaintiff was notified of his termination.

When plaintiff was terminated, defendant employed a total of 355 employees, with 350 located in Tennessee, one in California, one in Georgia, one in Massachusetts, one in Ohio and one in Kansas (plaintiff).

On or about January 19, 1983, plaintiff mailed a letter requesting a service letter “pursuant to the Missouri Service Letter Statute setting forth the nature and character of the service ... rendered ..., the duration of employment ..., and the true cause, if any for ... discharge on September 7, 1982.” At the time the letter was sent, defendant employed no one in either Missouri or Kansas.

Under Missouri law, an employee need not be a resident of or work in Missouri at the time of discharge to take advantage of Mo.Rev.Stat. § 290.140. When an employee enters employment under a Missouri employment contract, the statute becomes a part of the agreement, and a subsequent move out of state will not relieve the employer from the obligation imposed by the statute. Bliven v. Brunswick Corp., 575 S.W.2d 788 (Mo.App.K.C.1978). An out-of-state employee not employed under a Missouri employment contract, however, is not covered by the statute. See, McCluney v. Schlitz Brewing Co., 649 F.2d 578 (8th Cir.1981), aff'd Mem., 454 U.S. 1071, 102 S.Ct. 624, 70 L.Ed.2d 607 (1981). This is so notwithstanding the fact that the employee originally was hired in Missouri under a Missouri employment contract and had worked for some time in Missouri. Id.

In the case at bar, plaintiff originally inquired about employment by sending a letter to Tennessee from his residence in Florida. After plaintiff moved to Missouri, he telephoned defendant in Tennessee regarding employment prospects. Plaintiff was interviewed in Tennessee at defendant’s expense. Plaintiff accepted an offer made telephonically from Tennessee while plaintiff was physically present in Missouri.

The Court need not decide whether the telephone offer and acceptance constituted a Missouri employment contract. Plaintiff later entered into a written employment contract which by its terms superseded any prior employment agreement. Under Missouri’s choice of law analysis of “most significant contacts,” National Starch and Chemical Corp. v. Newman, 577 S.W. 99, 102 (Mo.App.K.C.1978), it is clear that the superseding contract is governed by Tennessee law and is not a Missouri employment contract. This agreement was entered into in Tennessee between plaintiff and an Ohio corporation that has its principal place of business in Tennessee. Plaintiff was to receive training and orientation in Tennessee. The plaintiff’s sales district was to cover thirteen states, one of which was Missouri. Plaintiff was instructed to use his home as his business office to send and receive business communications. At the time he was hired, his home was in Missouri, but location in Missouri was not a requirement imposed by defendant. Plaintiff replaced a Sales Manager whose home was in Houston, Texas. Plaintiffs job required extensive travel throughout his sales district. Only one of the dealers that plaintiff called on was located in Missouri. Plaintiff was free to move his residence and in fact did so.

There is no indication that plaintiffs location in Missouri was more than a fortuitous fact, or that it had anything to do with the making of the contract. These facts when considered in light of the justified expectations of the parties, and the factors of predictability, uniformity of result, and the needs of an interstate system require a finding that the parties were operating under a Tennessee contract.

The Missouri legislature did not intend the service letter statute to have extra-territorial applications; it was designed to protect the public and employees in Missouri. Horstman v. General Electric Co., 438 S.W. 18, 20 (Mo.App.K.C.1969). Plaintiff, at the time of termination and request for a service letter was a resident of the State of Kansas. Although plaintiff had previously lived and worked in Missouri, the protection of the statute did not follow him when he moved out of state.

The fact that plaintiff was notified of his termination when he was physically present in Missouri likewise does not bring the statute into play. Since the statute was intended to protect the public and employees in Missouri, it does not cover employees who happen to be in Missouri when they are terminated.

Because of the disposition of the above issue, the Court need not reach .the defend- • ant’s remaining arguments.

Accordingly, it is hereby ORDERED that defendant’s motion for summary judgment on Count I is granted.

      . Plaintiff repeatedly points out that, in ruling on a motion to dismiss for lack of personal jurisdiction over defendant, this Court wrote that the employment relationship "originated, developed, and terminated in Missouri," and cites such statement as establishing Missouri as the "focal location” of the relationship of the parties. An evaluation of contacts for purposes of a finding of personal jurisdiction over defendant does not attempt to find a "focal location,” but only considers whether the contacts between the defendant, the cause of action, and the forum reach the minimum level required by the due process clause.

      . The Court takes no position on whether an employee working under an employment contract governed by a state other than Missouri, but who is a resident of Missouri and/or works full time in Missouri, is entitled to a service letter under the Missouri service letter statute.


author: MacLAUGHLIN, District Judge.

text:
    Susan ZACK, Plaintiff, v. CITY OF MINNEAPOLIS, as employer and principal for Minneapolis Police Department, and Anthony V. Bouza, individually and as an agent of defendant, City of Minneapolis, Defendants.
    No. Civ. 4-82-1465.
    United States District Court, D. Minnesota, Fourth Division.
    Jan. 9, 1985.

      Tracy R. Eichhorn-Hicks, Meshbesher, Singer & Spence, Ltd., Minneapolis, Minn., for plaintiff.
    Kathleen M. Knutson, Oakes & Kanatz, St. Paul, Minn., for the law firm of Oakes & Kanatz.
   MEMORANDUM AND ORDER

MacLAUGHLIN, District Judge.

This matter is before the Court on the motion of Oakes & Kanatz, plaintiff’s original counsel in the above-entitled action, for establishment of an attorneys’ lien pursuant to Minn.Stat. § 481.13. Plaintiff has responded to this motion with her own motion for attorneys’ fees under Minn.Stat. § 549.21.

FACTS

Plaintiff Susan Zack retained the law firm of Oakes & Kanatz in November of 1980 to represent her in an employment discrimination claim against the City of Minneapolis. Oakes & Kanatz claims that plaintiff entered into an express agreement with the firm to compensate it on an hourly fee basis. The firm provided legal services for plaintiff from November, 1980 until December, 1982. These services included representation before the Civil Service Commission and the filing of the action in this Court. Subsequent to the commencement of this suit, in December, 1982, plaintiff substituted the law firm of Meshbesher, Singer & Spence as her counsel. Oakes & Kanatz filed a claim for an attorneys’ lien and a UCC-1 Financing Statement in March, 1983 with the Secretary of State and the Hennepin County Recorder’s office; copies of these documents were served on plaintiff, plaintiff’s attorney, and the City of Minneapolis.

Plaintiff prevailed in her employment discrimination suit. The Court, in an order dated April 23,1984, awarded plaintiff $29,-334.70 in damages, reinstated her to her former position, and stayed entry of judgment for 30 days in order to allow plaintiff an opportunity to bring a motion for attorneys’ fees and costs. The firm of Meshbesher, Singer & Spence brought such a motion, and notified Oakes & Kanatz that it should bring an attorneys’ fees motion. Meshbesher, Singer & Spence provided Oakes & Kanatz with a copy of their motion and supporting memorandum during the 30 day period following the Court’s order.

Oakes & Kanatz did not bring a motion for attorneys’ fees. At the oral argument on the instant motion, Oakes & Kanatz argued that it did not move for attorneys’ fees because it did not believe it had standing to make such a motion, given the fact that it no longer represented the plaintiff. Oakes & Kanatz asked Meshbesher, Singer & Spence to request its fees, but the latter firm refused on the ground that it could not make any representations regarding Oakes & Kanatz’ fees. The Court granted plaintiff’s motion for attorneys’ fees on June 8, 1984 and awarded Meshbesher, Singer & Spence $26,296.25 in attorneys’ fees and $2,389.77 in costs.

Oakes & Kanatz now moves the Court to establish an attorneys’ lien and to enter judgment against plaintiff in the amount of $6,084.62. The firm claims that it incurred fees in the amount of $6,539.18 and costs in the amount of $120.44. It further claims that plaintiff has paid only $575. DISCUSSION

Oakes & Kanatz argues that it is entitled to an attorneys’ lien under Minn. Stat. § 481.13. That statute provides, in pertinent part, that

An attorney has a lien for his compensation whether the agreement therefor be expressed or implied:
(2) Upon a judgment, and whether there be a special agreement as to compensation, or whether a lien is claimed for the reasonable value of the services, the lien shall extend to the amount thereof from the time of giving notice of his claim to the judgment debtor, but this lien is subordinate to the rights existing between the parties to the action or proceeding.

The statute further provides that the Court shall enter judgment and determine the amount due. Id. The Minnesota Supreme Court has held that the attorneys’ lien statute is a codification of the attorneys’ “charging lien” which existed at common law and at equity. Village of New Brighton v. Jamison, 278 N.W.2d 321, 324-25 (Minn.1979); Schroeder, Siegfried, Ryan & Vidas v. Modern Electronic Products, 295 N.W.2d 514, 516 (Minn.1980). The rationale behind the charging lien was that “a successful plaintiff should not be permitted the whole of any judgment secured by the services of his attorney without paying for those services.” Schroeder, Siegfried, Ryan & Vidas, 295 N.W.2d at 516. Oakes & Kanatz asserts that it is clearly entitled to the establishment of an attorneys’ lien because there was an express agreement with the plaintiff regarding compensation, the services contracted for have been performed, and the plaintiff has failed to pay for those services.

Plaintiff opposes the attempt to establish an attorneys’ lien on equitable grounds. Plaintiff argues that Oakes & Kanatz should be barred from establishing a lien because it failed to recover its fees and costs by bringing a motion for attorneys’ fees pursuant to 42 U.S.C. § 2000e-5(k) within 30 days after plaintiff prevailed in her suit before the Court. The fact that Oakes & Kanatz did not represent plaintiff in the actual trial of this action does not preclude it from recovering attorneys’ fees under Title VII. See Parker v. Califano, 561 F.2d 320 (D.C.Cir.1977) (court may award compensation for legal services performed prior to filing of judicial complaint); New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 100 S.Ct. 2024, 64 L.Ed.2d 723 (1980) (court may award Title VII attorneys’ fees for proceeding before state agency).

The Court has determined that it would be inequitable to establish an attorneys’ lien in the instant case. While the right to an attorney’s lien is statutory, the Minnesota Supreme Court has recognized that actions to enforce such liens are equitable in nature. Village of New Brighton, 278 N.W.2d at 325 (no right to jury trial because action to enforce lien is equitable in nature). Plaintiff correctly points out that it is a basic principle of equity that undue delay in enforcing one’s rights to the prejudice of another bars enforcement of those rights, and that the delaying party bears the burden of alleging facts excusing the delay. Sinell v. Town of Sharon, 206 Minn. 437, 289 N.W. 44 (1939). See also Fidelity & Deposit Co. of Maryland v. Central Bank, 48 F.2d 477 (8th Cir.1931) (equitable lien may be lost by negligent and unreasonable delay in proceeding to enforce it). While there has not necessarily been an unreasonable delay since judgment in the case before the Court, the basic principle in the above cited cases is applicable in view of Oakes & Kanatz’ failure to move for attorneys’ fees. The firm knew that it could, move for fees under 42 U.S.C. § 2000e-5(k), and yet it declined to do so. Oakes & Kanatz’ failure to move for attorneys’ fees was inexcusable, and it would be inequitable to now establish an attorneys’ lien.

The underlying purposes of the Title VII remedy, and the nature of the remedial award which plaintiff received in this case, support the conclusion that Oakes & Kanatz should be barred from establishing a lien. A central purpose of Title VII is “to make persons whole for injuries suffered on account of unlawful employment discrimination.” Albemarle Paper Company v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 2372, 45 L.Ed.2d 280 (1975). To this end, the federal district courts are given broad equitable powers to ensure that the “ ‘injured party is ... placed, as near as may be, in the situation he would have occupied if the wrong had not been committed.’ ” Albemarle, id., quoting Wicker v. Hoppock, 6 Wall. 94, 99, 18 L.Ed. 752 (1867). See also Conference Committee Report on 1972 Amendments to Title VII, 118 Cong. Rec. 7168 (1972). The typical “make whole” remedy is the back pay award; the damages which plaintiff received in this litigation were of such a compensatory character. Plaintiff did not receive any punitive damages. Indeed, such damages may not be recovered in a Title VII action. E.g. EEOC v. Detroit Edison Co., 515 F.2d 301 (6th Cir.1975), vacated on other grounds, 431 U.S. 951, 97 S.Ct. 2668, 53 L.Ed.2d 267 (1977). If the Court were to allow an attorneys’ lien of some $6,000 (approximately 20 percent of plaintiff’s award), this amount would come directly out of plaintiff’s back pay award, so that plaintiff would no longer be made whole by the Court’s judgment. Such a result would be contrary to the equitable purposes of Title VII. The provision for attorneys’ fees in Title VII is clearly linked to the “make whole” purpose of the act. The sole reference to this provision in the legislative debates is that it was included to “make it easier for a plaintiff of limited means to bring a meritorious suit.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 420, 98 S.Ct. 694, 699, 54 L.Ed.2d 648 (1977); 110 Cong.Rec. 12724 (1964) (remarks of Senator Humphrey). If prevailing plaintiffs had to pay sizable attorneys’ fees out of their own pockets, they simply could not be made whole for their losses, and there would therefore exist a great disincentive to sue. The determination that Oakes & Kanatz had an obligation to move for attorneys’ fees, then, is consistent with the purposes of Title VII.

ATTORNEYS’ FEES

Plaintiff has moved for attorneys’ fees under Minn.Stat. § 549.21, arguing that the claim asserted by Oakes & Kanatz is so clearly unreasonable that it should be viewed as frivolous or asserted in bad faith. The Court cannot conclude that this action was brought in bad faith. Oakes & Kanatz did have an express agreement with plaintiff regarding compensation, and plaintiff has failed to fulfill the agreement she made.

Accordingly, IT IS ORDERED that Oakes & Kanatz’ motion for an attorneys’ lien is denied, and plaintiff’s motion for attorneys’ fees in connection therewith is denied.

      . Oakes & Kanatz argues, and plaintiff does not dispute, that the Court has ancillary jurisdiction over the claim arising under Minn.Stat. § 481.-13. The Court agrees that it has ancillary jurisdiction to determine this claim. An attempt to establish an attorneys’ lien is a related dispute to the main action. Oakes & Kanatz correctly cites In re Coordinated Pretrial Proceedings, 520 F.Supp. 635 (D.Minn.1981) for the proposition that ancillary jurisdiction over fee disputes is inherent where the court has independent subject matter jurisdiction over the litigation itself.


author: THOMAS F. HOGAN, District Judge.

text:
    Robert H. BEAUMONT, et al., Plaintiffs, v. Verne ORR, Secretary of the Department of the Air Force, et al., Defendants.
    Civ. A. No. 83-2246.
    United States District Court, District of Columbia.
    Jan. 10, 1985.

      Paul A. Kiefer, Kiefer & Morrison, Washington, D.C., for plaintiffs.
    Richard A. Stanley, Asst. U.S. Atty., Washington, D.C., for defendants.
   MEMORANDUM OPINION AND ORDER

THOMAS F. HOGAN, District Judge.

The plaintiffs in this action are twenty-nine dentists, all currently serving as Dental Officers with the United States Air Force. Plaintiffs challenge defendants’ position that the plaintiffs are ineligible for “continuation pay” as provided for by 37 U.S.C. § 311 and applicable Department of Defense and Air Force regulations. This ease is presently before the Court on defendants’ motion to dismiss under Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. Upon consideration of defendants’ motion and plaintiffs’ opposition thereto, and after hearing oral argument on the motion, the Court concludes that this action must be dismissed.

Background

Each of the plaintiffs in this action received his dental education and training under a fully-funded program sponsored by the United States Air Force. Under this program, as governed by Air Force Regulation (AFR) 36-13, all of the plaintiffs were commissioned Medical Service Corps officers while in dental school, receiving a salary while they pursued their education. In addition, all expenses for tuition, fees and books were paid for by the Air Force. In exchange for this dental training, the plaintiffs committed themselves to the Air Force for three months for each month of their education. Plaintiffs acknowledge that as a result of their participation in the fully-funded educational program, they incurred an Active Duty Service Commitment (“ASDC”) with the Air Force of approximately nine years.

All of the plaintiffs successfully completed dental school under the Air Force program. Consequently, upon graduating, all of the plaintiffs were recommissioned in the Air Force as Dental Officers, and continue to serve in that capacity. As a result of being recommissioned as Dental Officers, plaintiffs incurred an ASDC of four years, which may be completed concurrently with their nine year ASDC for dental training. AFR 36-13; 36-51.

Plaintiffs have now all served as Dental Officers for at least four years, and challenge the Air Force’ position that they are ineligible for “continuation pay” until after completion of their approximately nine year ASDC for dental training. Continuation pay is a statutorily authorized bonus that may be given to selected military dentists in exchange for their agreement to remain in the military. The statutory provision for continuation pay specifically states:

Under regulations to be prescribed by the Secretary of Defense, an officer of the Army or Navy in the Dental Corps or an officer of the Air Force who is designated as a dental officer who—
(A) is serving on active duty in a critical specialty designated by the Secretary of Defense;
(B) has completed his initial active-duty obligation; and
(C) executed a written agreement to remain on active duty for at least one additional year;
may be paid not more than four months’ basic pay ... when he executes that agreement for each additional year that he agrees to remain on active duty____

37 U.S.C. § 311 (emphasis added).

The Department of Defense Directive that implements the continuation pay statute with respect to dentists has consistently defined a dental officer’s “initial active duty service obligation” as the “first obligation to serve on active duty for a specified period of time imposed on Medical or Dental Corps officers by a law other than ... [37 U.S.C. § 311] or imposed by a regulation issued by the Secretary of Defense or the Secretary of a Military Department. See DOD Directive 1340.8 [hereinafter “the DOD directive”]. Likewise, with one exception which is not the source of plaintiffs challenge here, the Air Force Regulations implementing DOD directive 1340.8 have consistently embodied essentially the same definition of initial active duty service requirement. AFR 36-8.

In this action, plaintiffs contend that the Air Force has erroneously interpreted the definition of initial active duty service requirement contained in the DOD directive and Air Force regulation to require them to complete the nine year ASDC incurred as the result of their dental education before regarding them as eligible for continuation pay. Plaintiffs argue that their first obligation to serve on active duty imposed on them as “Medical or Dental Corps Officers” is the four year ASDC they incurred as the result of being commissioned as a Dental Officer after graduation, not the nine year commitment incurred over the course of their education while they were commissioned as Medical Service Corps officers.

Although plaintiffs’ complaint purported to seek a determination that plaintiffs are entitled to continuation pay, .in their opposition to defendants’ motion to dismiss, and at the hearing conducted on defendants’ motion, plaintiffs clarified that their actual requested relief is a determination that they should be recognized as among those eligible to receive continuation pay. Clearly neither the continuation pay statute itself, 37 U.S.C. § 311, nor any of the Department of Defense or Air Force Regulations promulgated under that statute could be construed to create any entitlement to continuation pay. Section 311 places complete discretion as to the existence and structure of a continuation pay. program with the Department of Defense. 37 U.S.C. § 311(a). The DOD directive implementing section 311 further preserves the discretionary nature of continuation pay, providing that the Secretaries of the various Military Departments shall select Dental Corps Officers to receive continuation pay from among those who meet certain minimum eligibility requirements. DOD Directive 1340.8. The Air Force Regulations, in turn, provide that those officers to receive continuation pay will be selected by a Continuation Pay Selection Board from among the eligible pool of applicants. AFR 36-8.

In light of the fact that plaintiffs can assert no entitlement to continuation pay, they cannot purport to state a claim for money damages against the United States cognizable under the Tucker Act, 28 U.S.C. § 1346. Adair v. United States, 648 F.2d 1318, 1322-23 (Ct.Cl.1981) (statute allowing payment of incentive bonuses to Public Health Service Physicians upon selection by medical board totally discretionary statute not giving rise to Tucker Act claim).

The only issue properly before this Court, therefore, is whether the defendants’ determination that the plaintiffs are not eligible for continuation pay is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” within the meaning of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). Plaintiffs’ burden on this issue is a considerable one. Although decisions of military agencies are susceptible to judicial review, the federal courts have afforded the military great deference in terms of its exercise of discretion over internal personnel and management matters. Dilley v. Alexander, 603 F.2d 914, 919-20 (D.C.Cir.1979). Consequently, our inquiry is limited to a review of whether the defendants’ policy complained of here was blatantly contrary to the statutes and regulations governing the Air Force, or inexplicably arbitrary and capricious.

Each of the plaintiffs in this action initially applied for continuation pay, and was determined to be ineligible because he had not completed his nine year ASDC incurred as the result of fully-funded training. All but three of the plaintiffs then appealed to the Air Force Board for the Correction of Military Records (AFBCMR), which denied the request to delete the completion of the nine year ASDC as a requirement for receiving continuation pay. Both the initial determinations of ineligibility and the decisions of the AFBCMR have been based on the position set forth in two decisions of the Air Force Judge Advocate General, rendered in 1978 and 1983 at the request of the Office of the Surgeon General. In each case, the opinion returned to the legislative history of the continuation pay statute, 37 U.S.C. § 311, in concluding that the only reasonable interpretation of “initial active duty service obligation” in light of Congress’ intent in authorizing continuation pay would be to require completion of the ASDC incurred as the result of basic dental training. The May 16, 1983 opinion stated:

In enacting 37 U.S.C. § 311, Congress intended continuation pay to be a tool employed only when absolutely necessary to alleviate critical shortages of physicians or dentists in certain specialties. Congress recognized the difficulty in retaining doctors in the service beyond the first term of obligated service. The Act clearly intends to provide a mechanism to retain officers who otherwise are free to leave the service. The officers ... [who received their dental training under the full-sponsored program] are already obligated to remain in the service beyond the point at which you propose authorizing continuation pay ... by reason of their voluntarily incurred initial term of obligated service. We do not believe Congress intended this group to qualify for continuation pay.

To challenge the defendants’ position, plaintiffs make no attempt to offer counter-arguments based on the legislative history of the continuation pay statute. Instead, plaintiffs rely exclusively on their own literal interpretation of the definition of initial active duty service requirement set forth in the DOD directive and the AFR 36-8. Plaintiffs argue that the first obligation to serve on active duty imposed on them as Dental Officers was the four year requirement incurred upon being recommissioned as Dental Officer from a Medical Service Corps Officers after graduation. In essence, plaintiffs argue that because they were not Dental Officers at the time they were incurring their ASDC for dental training, their dental training commitment should not be considered for purposes of the continuation pay statute. This Court regards the plaintiffs’ position as placing undue emphasis on the choice of words used to define initial active duty obligation in the DOD directive and Air Force regulation, without adequate consideration of the overall intention of the continuation pay program.

This Court has independently reviewed the legislative history of 37 U.S.C. § 311 and concludes that the opinion of the Air Force Judge Advocate General accurately reflects the intention of Congress in authorizing continuation pay. See e.g., S.Rep. No. 808, 90th Cong., reprinted in 1967 U.S.Code Cong. & Ad.News 2316; S.Rep. No. 1614, 90th Cong., 2nd Sess., reprinted in 1968 U.S.Code Cong. & Ad.News 4365. Given that Congress intended continuation pay to be a means for the military to induce valuable medical professionals to remain in the service when current needs for such individuals exist, the Court cannot find error with the defendants’ interpretation and implementation of the continuation pay statute. Consequently, plaintiffs have failed to sustain their burden of demonstrating that defendants’ interpretation of the continuation pay statute is arbitrary, capricious, or otherwise not in accordance with law.

Accordingly, it is this 10th day of January, 1985,

ORDERED that defendants’ motion is granted, and this action is hereby dismissed.

      . Defendants concede that the June 8, 1973 version of AFR 36-8 inexplicably defined initial active duty service obligation as “the obligation imposed on Medical Corps and Dental Corps officers by the Military Selective Service Act to serve on active duty for 24 months.” The December 5, 1974 version of AFR 36-8 restored the definition to that provided in the statute and the DOD directive. Although plaintiffs’ opposition to defendants’ motion to dismiss addressed this discrepancy, asserting that the June 8, 1973 version was in effect at the time most of the plaintiffs signed dental school training agreements under the fully funded program, the complaint clearly did not seek relief based on any reliance by the plaintiffs on the June 1973 version of the regulation. Moreover, as discussed more fully below, under no version of the regulations have Air Force dentists ever had an entitlement to continuation pay. Consequently any claim that had been asserted based on alleged detrimental reliance on the June 1973 version of AFR 36-8 would not have been well taken.

      . Under the Federal Courts Improvement Act of 1982, all Tucker Act claims are reviewable exclusively by the United States Court of Appeals for the Federal Circuit. The Federal Circuit has adopted all decisions of the former Court of Claims rendered on or before September 30, 1982 as its precedents. See South Corporation v. United States, 690 F.2d 1368 (Fed.Cir.1982). Accordingly, this Court regards Adair as binding authority on this issue.

      . Although three of the plaintiffs did not pursue their claim with the AFBCMR, the Court nevertheless finds that they have appropriately exhausted their administrative remedies given the defendants' well-established position on the issue involved here. See, e.g., Porter County Chapter of Izaac Walton League, Inc. v. Costle, 571 F.2d 359, 363 (7th Cir.) (court may find that party need not exhaust administrative remedies if to do so would be futile), cert. denied, 439 U.S. 834, 99 S.Ct. 115, 58 L.Ed.2d 130 (1978).

      . The Court notes that it is only the DOD directive and AFR 36-8 which have defined initial active duty service obligation as the "first obligation to serve on active duty for a specified period of time imposed on Medical or Dental Officers." The underscored language, which in effect constitutes the entire basis of plaintiffs’ claim, is not contained in the continuation pay statute itself, which simply states that an applicant for continuation pay must have completed his "initial active-duty obligation.” 37 U.S.C. § 311.


author: GERRY, District Judge.

text:
    TOWNSHIP OF MIDDLETOWN, Plaintiff, v. N/E REGIONAL OFFICE, UNITED STATES POSTAL SERVICE, Defendant.
    Crim. A. No. 84-00185.
    United States District Court, D. New Jersey.
    Jan. 10, 1985.

      Crummy, Del Deo, Dolan & Purcell by Philip W. Crawford, Newark, N.J., for plaintiff.
    U.S. Atty. W. Hunt Dumont by Irene Dowdy, Asst. U.S. Atty., Trenton, N.J., for defendant.
   OPINION

GERRY, District Judge.

FACTUAL BACKGROUND

The present action was commenced in June 1984 in the Municipal Court of the Township of Middletown. The summons and complaint issued by the Municipal Court named as the defendant the N/E Regional Office of the United States Postal Service. It was served upon Seymour Weiner, an official of the Postal Service, and charges the Postal Service with violations of Township zoning ordinances. In short, the complaint charges that the Postal Service failed to obtain land development permits and necessary approvals prior to attempting to clear the land in question. A verified petition of removal was filed with this court on June 22, 1984.

The parties to the present action have brought before the court two motions: (1) the plaintiff Township of Middletown’s motion to remand the proceedings to the Municipal Court of that Township; and (2) defendant Postal Service’s motion to dismiss. The court’s disposition of each of these motions and the rationale underlying its decision will be discussed in turn. As a preliminary matter, it should be noted that the only defendant named in the caption of the case is the “N/E Regional Office, United States Postal Service.” In addition, the Township of Middletown asserts in its brief that the action is brought only against the Postal Service, and that it has no intention of prosecuting Seymour Weiner. Consequently, the court will operate on the assumption that the Postal Service is the sole defendant and, thus, that the arguments about the propriety of removal and the immunity from zoning regulations as they relate to Seymour Weiner need not be considered.

A. The Propriety of Removal

Addressing ourselves to the first question, which counsel for the Township has quite properly noted we must do, the Township of Middletown contends that the action against the Postal Service was improperly removed to this court, and that it should be remanded for disposition in the Municipal Court of Middletown. According to the Township, no valid basis exists for granting the removal. The court disagrees and finds that the Township advocates an unnecessarily narrow reading of the relevant removal statutes. Even assuming that the Township was correct in claiming that there is no federal question in the case and, thus, that sections 1331 and 1441 of U.S. title 28 cannot support removal — a question not addressed by the court — removal is proper under 28 U.S.C. § 1442(a)(1) and 39 U.S.C. § 409.

39 U.S.C. § 409, a portion of the Postal Reorganization Act, states that “[a]ny action brought in a State court to which the Postal Service is a party may be removed to the appropriate United States district court under the provisions of chapter 89 of title 28.” According to the Township, this statute does not create an independent ground for removal from a state court to federal court; rather, it is argued, the power and jurisdiction to remove the case must be found in the provisions of title 28. In support of its proposition, the Township cites Jones Store Co. v. Hammons, 424 F.Supp. 494 (D.C.Mo.1977), which refused to read § 409 as the source of an independent basis for removal. The court in Jones Store, however, failed to provide any explanation or discussion of its conclusion. It did not consider the legislative history of the statute, nor did it examine the plain language of the Act. Even a cursory examination of the language and history of § 409 demonstrates that the Jones Store court incorrectly interpreted the statute. Several legislative reports state, without limitation, that actions against the Postal Service in state courts may be removed to the federal courts. Section 409 itself speaks of the removal of any action brought against the Postal Service. While § 409 also states that the removal is to be “under the provisions of chapter 89 of title 28,” there is no indication that this refers to the grounds for removal. It is far more plausible that the quoted language refers to the procedures for removal set forth in § 1446 et seq.

Even if the court in Jones Store were correct in its interpretation of § 409, however, there exists a second valid basis for granting removal in this case. Several courts have held that a federal agency may remove an action from state to federal court under the provisions of § 1442(a)(1). According to that statute, “[a]ny officer of the United States or any agency thereof, or person acting under him, for any act under color of such office ...” may remove a civil action or a criminal prosecution commenced in state court. While the express language could permissibly be interpreted either to allow or disallow removal by a federal agency, the broader interpretation of the statute to allow removal by agencies is more consistent with the intent of Congress to protect the valid exercise of federal authority. 14 Wright, Miller and Cooper Federal Practice and Procedure § 3727. Since the conduct which formed the basis of this criminal action, the clearing of land for the construction of a post office facility, was clearly performed under color of federal authority, the provisions of § 1442(a)(1) apply and removal is authorized.

B. Applicability of Local Zoning Regulations to the Postal Service

Turning now to the applicability of local zoning regulations to the Postal Service, it is well established that the doctrine of federal supremacy protects the legitimate activities of the United States Government from regulation by state and local authorities. See, e.g., Mayo v. United States, 319 U.S. 441, 63 S.Ct. 1137, 87 L.Ed. 1504 (1943). The effect of this principle, which derives from the Supremacy Clause, Article VI, Clause 2 of the Constitution, is that unless Congress clearly and affirmatively declares that federal instrumentalities shall be subject to state regulation, the federal function must be left free of such regulation. Hancock v. Train, 426 U.S. 167, 96 S.Ct. 2006, 48 L.Ed.2d 555 (1976). In the case at bar, the Township of Middle-town has not brought to this court’s attention any evidence of congressional intent to subject federal instrumentalities such as the Postal Service to local zoning regulations.

The question of the applicability of municipal zoning regulations to the Postal Service was raised in Crivello v. Board of Adjustment of the Borough of Middlesex, 183 F.Supp. 826 (D.N.J.1960). Although the holding of that case did not turn on a resolution of this question, the court noted that “if the Postmaster General, pursuant to and in the exercise of the authority vested in him by congressional enactment, contemplates the erection of a post office on the proposed site, his authority may not be restricted by local ordinance.” Id. at 829. The state courts in New Jersey are in agreement on this point. In Thornton v. Village of Ridgewood, 17 N.J. 499, 111 A.2d 899 (1955), the court stated that “[t]he need of a public building in a certain location ought to be determined by the federal, state or municipal authority, and its determination on the question of necessary or desirable location cannot be interfered with by a local zoning ordinance.” Id. at 513, 111 A.2d 899. Additionally, the court in Thanet Corp. v. Township of Princeton, 104 N.J.Super. 180, 249 A.2d 31 (Law Div. 1969), aff'd, 108 N.J.Super. 65, 260 A.2d 1 (App.Div.1969), found that the authority of the Post Office Department to acquire and use property for post office purposes was not subject to compliance with municipal or state regulations. Thus, the relevant authorities establish that the Postal Service is not bound to observe the land use regulations of Middletown Township. Accordingly, the present criminal action against the Postal Service must be dismissed.

In sum then, the court finds that the removal of this action from state to federal court was properly granted. However, since the defendant Postal Service is not subject to the municipal land use regulations of Middletown Township, the criminal action based on an alleged violation of such regulations must be dismissed. The court has entered an order consistent with this opinion.

      . H.R.Rep. No. 91-1104, 91st Cong.2d Sess. 26 (1970), U.S.Code Cong. & Admin.News 1970, p. 3649; H.R.Rep. No. 91-988, 91st Cong.2d Sess. 29 (1970); H.R. 11750, Recommendation of the President of the United States, Committee on Post Office and Civil Service, Print No. 8, 91st Cong., 1st Sess. 157 (1969).

        . See, e.g., IMFC Professional Services of Florida, Inc. v. Latin American Home Health, Inc., 676 F.2d 152 (5th Cir.1982); Monal Construction Company v. Brookside Limited Partnership, 539 F.Supp. 478 (W.D.Pa.1982).


author: SHABAZ, District Judge.

text:
    Richard STENSVAD, Plaintiff, v. Linda REIVITZ, Secretary, Department of Health and Social Services, Terrence Schnapp, Director, Mendota Mental Health Institute, and Dr. James Whitman, Defendants.
    No. 84-C-383-S.
    United States District Court, W.D. Wisconsin.
    Jan. 10, 1985.
    Diane L. Mader, Schuster & Carroll, Madison, Wis., for plaintiff.
    Richard J. Boyd, Asst. Atty. Gen., Madison, Wis., for defendants.
   MEMORANDUM AND ORDER

SHABAZ, District Judge.

Plaintiff has moved for summary judgment in this action, arguing that state statute, which provides no right to refuse drug treatment to involuntarily committed mental patients, is unconstitutional as a matter of law. Defendants appear to concede, and the Court agrees, that there are no disputed material facts. Accordingly, this matter is appropriate for summary judgment.

FACTS

Plaintiff Richard Stensvad is an inmate at the Mendota Mental Health Institute in Madison, Wisconsin, having been committed in 1974 after a jury verdict of not guilty by reason of mental disease or defect of first degree murder. He was diagnosed as suffering from undifferentiated schizophrenia and has been treated with antipsychotic (or psychotropic) drugs virtually continuously during his commitment.

The defendants are Linda Reivitz, the Secretary of Wisconsin’s Department of Health and Social Services; Terrence Schnapp, the Director of the Mendota Mental Health Institute; and Dr. James Whitman, plaintiff’s treating psychiatrist who has prescribed the drugs for plaintiff’s treatment since about 1980.

Plaintiff is presently being administered a bi-weekly twelve and one-half milligram dose of the drug, Prolixin, by injection. Before August 6,1984, he received regular doses of the drug, Navane, instead. At various other times during his commitment, plaintiff has also been treated by other drugs, including Trilafon and Haldol, and was administered drugs to diminish the side effects of the antipsychotic drug being administered during a given time.

Plaintiff was committed under § 971.-17(1), Wis.Stats., which provides:

(1) When a defendant is found not guilty by reason of mental disease or defect, the court shall order him to be committed to the department [of Health and Social Services] to be placed in an appropriate institution for custody, care and treatment until discharged as provided in this section.

Such a commitment must also be predicated on a finding of present need for commitment, State ex rel. Kovach v. Schubert, 64 Wis.2d 612, 219 N.W.2d 341 (1974), and release can be obtained under the provisions of § 51.20, Wis.Stats., after a finding by the committing court that the defendant is no longer dangerous, State v. Gebarski, 90 Wis.2d 754, 280 N.W.2d 672 (1979).

Chapter 51 of the Wisconsin Statutes provides for the treatment of the mentally ill. In pertinent part, the chapter provides as follows:

51.59 INCOMPETENCY NOT IMPLIED. (1) No person is deemed incompetent to manage his or her affairs, to contract, to hold professional, occupational or motor vehicle operator’s licenses, to marry or to obtain a divorce, to vote, to make a will or to exercise any other civil right solely by reason of his or her admission to a facility in accordance with this chapter or detention or commitment under this chapter. (2) This section does not authorize an individual who has been involuntarily committed or detained under this chapter to refuse treatment during such commitment or detention.
51.61 PATIENTS RIGHTS. (1) ... Except as provided in sub. (2), each patient shall:
******
(g) Prior to the final commitment hearing and court commitment orders, have the right to refuse all medication and treatment except as ordered by the court under this paragraph, or in a situation where such medication or treatment is necessary to prevent serious physical harm to the patient or to others____ Following a final commitment order, the subject individual does not have the right to refuse medication and treatment except as provided in this section.
(h) Have a right to be free from unnecessary or excessive medication at any time. No medication may be administered to a patient except at the written order of a physician. The attending physician is responsible for all medication which is administered to a patient____ Medication may not be used as punishment, for the convenience of staff, as a substitute for a treatment program, or in quantities that interfere with a patient’s treatment program. Except when medication or medical treatment has been ordered by the court under par. (g) or is necessary to prevent serious physical harm to others as evidenced by a recent overt act, attempt or threat to do such harm, a patient may refuse medications and medical treatment if the patient is a member of a recognized religious organization and the religious tenets of such organization prohibit such medications and treatment. The individual shall be informed of this right prior to administration of medication or treatment whenever the patient’s condition so permits.

The list of patient rights also includes the right not to be subjected to psychosurgery or electroconvulsive treatment without consent. And § 51.61 also provides for enforcement of these rights by a grievance procedure, (§ 51.61(5)), and by court action which does not require the exhaustion of the grievance procedure, (§ 51.61(7)).

Plaintiff has been administered these drugs without his consent, understanding that they would be forcefully administered if he physically resisted. He has allegedly suffered some side effects from the drugs, but expressly concedes that the decisions to administer such drugs have not been made in bad faith, nor has he been subjected to excessive doses. And he concedes that drug treatment has not been administered for reasons of punishment or staff convenience, and that he is not a member of a religious organization which would exempt him from such treatment. In other words, the administration of drugs can be assumed to be compatible with his treatment program, which is not otherwise challenged here.

MEMORANDUM

Plaintiff argues that various constitutional provisions provide him with a liberty interest in refusing treatment by antipsychotic drugs which is abrogated by operation of § 51.61(l)(g), Wis.Stats., without due process of law. Plaintiff now concedes that the Eighth Amendment provides no protection under these circumstances since it is applicable only in the prison setting, Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) (holding that the Fourteenth rather than the Eighth Amendment provides the basis of any rights applicable to the institutionalized mentally ill). However, plaintiff still asserts that his First Amendment rights are violated because the drugs disturb his generation of thoughts, and that the Fourth, Fifth and Fourteenth Amendments are violated insofar as they protect a right to privacy.

Defendants contend that such drugs are not “mind altering” in the sense that plaintiff asserts. Although this is debatable, the Court will assume that plaintiff’s contrary contention is correct. See Mills v. Rogers, 457 U.S. 291, 293, note 1, 102 S.Ct. 2442, 2445, note 1, 73 L.Ed.2d 16 (1982) (“It is not disputed that such drugs are ‘mind altering.’ Their effectiveness resides in their capacity to achieve such effects.”). However, defendants do not persuasively argue that plaintiff has no liberty interest in not being treated against his will. In Rennie v. Klein, 720 F.2d 266 (3rd Cir.1983), a case which, for practical purposes, is on point with this one, the only issue on which the judges agreed was the existence of such a liberty interest.

Accordingly, the only issue before this Court is whether the statutory scheme in Wisconsin violates the due process clause in failing to provide adequate protection for this interest. The Court concludes that it does so provide in at least two ways.

First, it must be recognized that a commitment pursuant to § 971.17(1) is for “custody, care and treatment” (emphasis added). Thus, a person subjected to involuntary commitment has been afforded a hearing concerning whether or not he can be forced to undergo psychiatric treatment. In light of the statute under attack in this action, involuntary treatment by antipsychotic drugs must be considered to be within the contemplation of the committing court. It seems clear under § 51.59 that an involuntary commitment is a finding of incompetency with respect to treatment decisions. Nonconsensual treatment is what involuntary commitment is all about. It is for this reason that the Court in Vitek v. Jones, 445 U.S. 480, 494, 100 S.Ct. 1254, 1264, 63 L.Ed.2d 552 (1980), required a due process hearing before a prison inmate could be transferred to a mental institution.

Second, the statutory scheme of § 51.61 as a whole provides all of the process that is due. As defendants point out, it is important to note that Rennie v. Klein, supra, was a decision necessitated by a remand for consideration in light of Youngberg v. Romeo. Rennie v. Klein, 458 U.S. 1119, 102 S.Ct. 3506, 73 L.Ed.2d 1381 (1982), reversing 653 F.2d 836 (3rd Cir. 1981). While Youngberg was, as plaintiff points out, distinguishable on its facts because it concerned the right to habilitation of a mentally retarded subject, Rennie is not distinguishable in that it raises precisely the issue advanced in this case: the right to refuse antipsychotic drugs. Thus, whatever rights plaintiff has to refuse antipsychotic drugs are measured by whether the decision to administer such drugs is a “substantial departure from accepted professional judgment, practice or standards.” Youngberg, 457 U.S. at 323, 102 S.Ct. at 2462. See also Rennie, 720 F.2d at 269.

Accordingly, the statutory scheme must be examined to discover whether it reasonably insures that antipsychotic drugs are administered only in a professionally acceptable manner. First of all, the statutes provide that the drugs may be administered only on the prescription of a physician. § 51.61(l)(h). Second, a patient has a right to be free from unnecessary or excessive medication which clearly imposes the kind of professional standards contemplated by Youngberg. Finally, this right can be enforced either through the grievance procedure provided under § 51.61(5) or, alternatively, by court action under § 51.61(7). Also enforceable under these provisions is the right to treatment which is “appropriate for his or her condition.” § 51.61(l)(f). This would appear to also impose a requirement of professionally acceptable treatment which is all that Young-berg mandates.

Therefore, the plaintiff is not entitled to summary judgment in this action. Although the defendants have not moved for summary judgment, the foregoing shows that they, not the plaintiff, are entitled to summary judgment as a matter of law because there are no issues of material fact. Spitz v. U.S., 432 F.Supp. 148 (E.D. Wis.1977).

The preceding statements dispose of this matter in its entirety. However, the Court believes that it is appropriate to dispose of some other issues raised by the filings of the parties. First, it is clear, by virtue of plaintiffs concession that the defendants were acting in good faith reliance on the statutes, and the absence of a clearcut decision holding such procedures unconstitutional, that there could be no successful claim for damages against these defendants. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).

Second, defendants have asserted (explicitly in their trial brief and less clearly in the brief in opposition to summary judgment) that factual issues exist as to whether the positive effects of plaintiffs medication outweigh the danger of side effects (and whether plaintiff in fact suffers from side effects), and whether plaintiff constitutes a danger to himself or others. The first of these would appear to be immaterial to this litigation because an exercise of professional judgment, which is presumably correct, would ordinarily weigh the pros and cons of such treatment. Youngberg, 457 U.S. at 322-23, 102 S.Ct. at 2461-62. The second, plaintiffs dangerousness has been preclusively determined by his commitment. To the extent that either of these issues can be called disputed, the decision in Youngberg dictates that deference must be shown to professional judgment, id., especially where, as here, the statutes require such exercise and provide for review of the treatment.

Accordingly,

ORDER

IT IS ORDERED that plaintiffs motion for summary judgment is DENIED.

IT IS FURTHER ORDERED that judgment shall be entered in favor of the defendants, with prejudice and costs, as there are no genuine issues of material fact and defendants are entitled to judgment as a matter of law.

      . The underlined portion of § 51.61(l)(g) is the specific language under attack in this action.

      . Noncriminal commitments under Chapter 51, Wis.Stats., are under the same terms. § 51.-22(1). Therefore, the issues presented in this casé do not rise or fall .on the fact that plaintiff is a criminal commitment. With respect to being subjected to nonconsensual drug treatments, he is in the same position as a Chapter 51 patient. In other words, the reason for his commitment is irrelevant.


author: NORDBERG, District Judge.

text:
    Katherine RIZZO, Plaintiff, v. WGN CONTINENTAL BROADCASTING COMPANY, Defendant.
    No. 84 C 4458.
    United States District Court, N.D. Illinois, E.D.
    Jan. 11, 1985.
    Sheila M. Murphy, Chicago, 111., for plaintiff.
    Richard L. Marcus, William J. Campbell, Jr., Steven L. Loren, Chicago, 111., for defendant.
   MEMORANDUM OPINION AND ORDER

NORDBERG, District Judge.

This matter comes before the Court on the defendant, WGN Continental Broadcasting Company’s (“WGN”) motion to dismiss plaintiff’s Amended Complaint. The plaintiff, Katherine Rizzo, originally filed a four count complaint against WGN which was dismissed. Plaintiff was granted leave to file an Amended Complaint consisting of two counts. (See minute order of October 25, 1984). Count I alleges age discrimination and Count II alleges sex discrimination. Defendant’s motion to dismiss Rizzo’s sex discrimination claim, renewed as to the Amended Complaint, is hereby granted in accordance with the following order.

Rizzo’s E.E.O.C. Complaint

Plaintiff Katherine Rizzo is a former employee of WGN. She began working for WGN in 1950 and was employed there until February 25, 1983. Rizzo claims that she was forced to stop working for WGN as a result of WGN’s “Early Retirement Program” (Program). It is Rizzo’s position that WGN’s Program discriminated against her on the basis of her age. On April 27, 1983, Rizzo filed a charge of age discrimination with the E.E.O.C. Rizzo’s E.E.O.C. charge indicated that February 25, 1983 was the most recent date that age discrimination took place. Subsequently, on October 11, 1983, Rizzo amended her E.E.O.C. charge to include an allegation that WGN discriminated against her on the basis of her sex. The E.E.O.C. investigated both of Rizzo’s claims and, finding no reasonable cause to believe Rizzo’s charge to be true, issued her a “right to sue” notice.

After receiving her right to sue notice, Rizzo filed a four-count complaint in federal district court, subsequently amended to a two-count complaint. In addition to her age discrimination claim, Count II of Rizzo’s Amended Complaint alleged that WGN discriminated against her on the basis of her sex, causing her to suffer severe emotional distress.

WGN has moved to dismiss Count II of Rizzo’s Amended Complaint. WGN contends that Rizzo is barred from raising her Title VII sex discrimination claim because she did not file a timely E.E.O.C. charge. Under 42 U.S.C. § 2000e-5(e), a plaintiff must file a charge with the E.E.O.C. within 180 day's of the last act of discrimination. WGN contends that since February 25, 1983 was the date on which the last discriminatory act took place, and since Rizzo amended her E.E.O.C. charge on October 11, 1983, Rizzo failed to file her sex discrimination charge within 180 days. As a result, WGN argues that Rizzo’s sex discrimination claim is barred.

Rizzo, on the other hand, claims that her failure to include a sex discrimination in her original April 27 E.E.O.C. charge is the result of a mere technical mistake. Rizzo contends that she simply failed to “check the appropriate box.” Consequently, Rizzo asserts that her sex discrimination claim should be allowed to stand.

The Motion to Dismiss

In considering WGN’s motion to dismiss, the court’s inquiry is whether Rizzo’s complaint sets forth allegations sufficient to make out the elements of a right to relief. Austin v. Merrill Lynch, Pierce, Fenner & Smith, 570 F.Supp. 667, 668 (W.D.Mich. 1983). The Court must accept as true all material facts well-pleaded in the complaint, and must make all reasonable inferences in the light most favorable to the plaintiff. Schnell v. City of Chicago, 407 F.2d 1084, 1086 (7th Cir.1969). Because the Court finds that Rizzo’s claim is barred by Title VII’s limitation period, dismissal of her sex discrimination claim is proper.

The Procedural Prerequisites to Filing a Title VII claim in Federal Court

A plaintiff who wishes to file a Title VII claim in federal court must first comply with the procedural scheme set forth in the statute. Federal courts have jurisdiction over Title VII claims only if a timely charge is first filed with the E.E. O.C. Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974); McDonnell Douglas Corporation v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 1822, 36 L.Ed.2d 668 (1973). Section 2000e-5(e) provides: “A charge under this section shall be filed within 180 days after the alleged unlawful employment practice occurred____” Thus, the express wording of the statute dictates that a plaintiff is required, prior to instituting suit in federal court, to file a change with the E.E.O.C. within 180 days after the act of discrimination took place.

In addition, however, the E.E.O.C. regulations provide that a plaintiffs E.E.O.C. charge may be amended to include additional allegations after the running of the 180 day limitation period. 29 C.F.R. § 1601.-12(b) states:

A charge may be amended to cure technical defects or omissions, including failure to verify the charge, or to clarify and amplify allegations made therein. Such amendments and amendments alleging additional acts which constitute unlawful employment practices related to or growing out of the subject matter of the original charge will relate back to the date the charge was first received. A charge that has been so amended shall not be required to be redeferred, (emphasis supplied).

29 C.F.R. § 1601.12(b) (1984).

Thus, Rizzo’s October 11, 1983 amendment will be judged against the wording of the regulation above and the federal courts’ interpretation and application of that regulation.

Federal courts interpreting 29 C.F.R. § 1601.12(b) acknowledge that E.E.O.C. charges are generally filed by ordinary people who lack legal training. These courts have often held that because E.E. O.C. charges are in laymen’s language, they are to be given liberal construction. Jenkins v. Blue Cross Mutual Hospital Insurance, Inc., 538 F.2d 164, 167 (7th Cir.1976); Abraham v. Field Enterprises, 511 F.Supp. 91, 93 (N.D.Ill.1980). These courts reason that a layman should not be precluded from having his or her day in court simply because he or she is unable to specifically articulate the type of discrimination he has suffered. Jenkins, 538 F.2d 164, 167, 168 (7th Cir.1976); Willis v. Chicago Extruded Metals Co., 375 F.Supp. 362, 365 (N.D.Ill.1974). The Seventh Circuit, following the Fifth Circuit’s lead, has enunciated the standard which this Court is to apply in determining whether an untimely amendment of an E.E.O.C. complaint may relate back:

The correct rule to follow in construing E.E.O.C. charges for purposes of delineating the proper scope of a subsequent judicial inquiry is that “the complaint in the civil action ... may properly encompass any ... discrimination like or reasonably related to the allegations of the charge and growing out of such allegations.”

Jenkins, 538 F.2d at 167, citing Danner v. Phillips Petroleum Company, 447 F.2d 159, 162 (5th Cir.1971). Thus, Rizzo’s October 11, 1983 amendment can relate back to her initial April 27, 1983 charge only if her sex discrimination charge “is like or reasonably related” to the allegations contained in her initial April 27, 1983 charge.

Rizzo’s April 27 E.E.O.C. charge contains facts and allegations describing how she was discriminated against on the basis of her age. For example, paragraph III of Rizzo’s charge states: “I believe that I have been discriminated against because of my age 59____” In the paragraphs following, Rizzo alleges that she was forced to partake in WGN’s “mandatory” retirement program and that she was subsequently replaced by a younger employee who was in his “early 30’s”. In her complaint, Rizzo refers to a “younger employee,” the “early retirement” program and how each individual involved was younger than she. Rizzo underscores and sums up the basis of her claim in paragraph IY:

I believe that the above named Respondent, (WGN), is discriminating against employees, 55 and older, as a class by forcing early retirement upon them, and if it is not accepted they are demoted and harassed.

However, while Rizzo has alleged facts sufficient to state a cause of action in age discrimination, nowhere in her April 27 charge is there any reference to facts indicating that WGN sexually discriminated against her. Indeed, every paragraph of Rizzo’s April 17 charge contains allegations directed solely towards WGN’s “mandatory” early retirement program. Rizzo’s complaint fails to allude to any act of WGN from which sexually discriminatory conduct may be inferred. Under such circumstances, this Court finds that Rizzo’s October 11 Amendment, adding a sex discrimination charge, fails to be “like or reasonably related to,” Jenkins, 538 F.2d 164, 167 (7th Cir.1976), the allegations contained in her April 27 E.E.O.C. charge.

In reaching this conclusion, the court does not rely on Rizzo’s failure to mark the box for “sex” discrimination on the E.E. O.C. form. Rather, the court relies on Rizzo’s entire complaint including the factual allegations in the charge. Accord Carrillo v. Illinois Bell Telephone Company, 538 F.Supp. 793, 798 (N.D.Ill.1982).

Rizzo’s E.E.O.C. charge is simply unlike the charge discussed in Jenkins. In Jenkins the court found that the plaintiff’s timely E.E.O.C. charge alleged facts sufficient to charge sex discrimination. 538 F.2d at 169. In the instant case, however, plaintiff’s charge alleges no facts indicating she was complaining about sex discrimination.

Therefore, because Rizzo’s untimely amendment fails to fit within the exception outlined by the applicable E.E.O.C. regulations, her sex discrimination charge is barred.

Conclusion

For the reasons set forth above, WGN’s motion to Dismiss Count II of Rizzo’s complaint is granted.


author: SPRIZZO, District Judge:

text:
    Thomas SPEERIN, Plaintiff, v. PRUDENTIAL LINES, INC., Defendant.
    No. 80 Civ. 4231 (JES).
    United States District Court, S.D. New York.
    Jan. 15, 1985.

      Zimmerman & ■ Zimmerman, New York City, for plaintiff; Howard Fishkin, New York City, of counsel.
    Radu Herescu, New York City, for defendant.
   OPINION AND ORDER

SPRIZZO, District Judge:

Plaintiff Thomas Speerin, an employee of Ardell Engineering Marine Repair Corp. (“Ardell”), commenced this action against defendant Prudential Lines, Inc. (“Prudential”) to recover damages for injuries which he allegedly sustained while working as a pipe fitter aboard Prudential’s vessel, the S.S. Santa Barbara. Defendant moved to dismiss for failure to state a claim for which relief can be granted. Fed.R.Civ.P. 12(b)(6). Since matters outside the pleadings have been presented to and have not been excluded by the Court, the motion shall be treated as one for summary judgment pursuant to Rule 56. Fed.R.Civ.P. 12(b)(6).

The essential facts of this case are undisputed. On May 5, 1978, plaintiff was injured while performing repair work aboard defendant’s ship. On July 20, 1978, by means of service of a bare summons, plaintiff commenced a personal injury action against defendant in New York State Supreme Court, New York County.

On December 20, 1979, a settlement agreement adjusting plaintiff’s compensation claim was executed by plaintiff, plaintiff's counsel, and Ardell’s insurer. The stipulation of settlement was executed and delivered to the U.S. Department of Labor, Office of Workers’ Compensation Programs (“OWCP”) on the same day. Pursuant to 20 C.F.R. § 702.315(a), the OWCP was required to acknowledge and memorialize the settlement within ten days and to issue a final Order within thirty days. In fact, it was not until March 26, 1980 that OWCP notified the parties that it had no objection to the settlement. It was also on March 26, 1980 that OWCP’s Deputy Commissioner for the Second Compensation District issued a formal Compensation Order, but only for an award of attorney’s fees. See Ex. 2 to Plaintiff’s Affirmation in Opposition.

Plaintiff commenced the instant federal action on July 24, 1980. Subsequently, on June 16, 1981, plaintiff discontinued his state court action against the defendant.

The' defendant first filed its motion to dismiss on January 29, 1982, but at the request of the parties a decision on the motion was deferred, and the case was placed on the suspense calendar pending the decision of the Supreme Court in Pallas Shipping Agency, Ltd. v. Duns, 461 U.S. 529, 103 S.Ct. 1991, 76 L.Ed.2d 120 (1983). Following the decision in that case on May 23, 1983, the matter was restored to the Court’s active trial calendar, the defendant renewed its motion to dismiss, and further submissions were made by the parties.

The principal issue raised by defendant’s motion is whether plaintiff’s claim is barred by Section 33(b) of the Longshoremen’s and Harbor Workers Compensation Act, (“LHWCA”) 33 U.S.C. § 933(b). That provision provides that:

Acceptance of such [statutorily fixed] compensation under an award in a compensation order filed by the deputy commissioner or [Benefits Review] Board shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third persons unless such person shall commence an action against such third person within six months after such award.

The defendant contends that the six-month period set forth in Section 33(b) commenced to run on or about December 20, 1979, when the settlement agreement was reached. Plaintiff, on the other hand, asserts that his action is not barred because the settlement agreement executed on December 20, 1979 was a voluntary, private agreement and not a formal “award in a compensation order” within the meaning of § 33(b).

In Rodriguez v. Compass Shipping Co., 617 F.2d 955 (2d Cir.1980), aff'd 451 U.S. 596, 101 S.Ct. 1945, 68 L.Ed.2d 472 (1981), the Second Circuit held that “An agreement settling an injured employee’s claim to workmen’s compensation, signed after an informal conference with a claims examiner, by whom it was approved, constitutes an ‘award’ within the meaning of § 33(b).” Rodriguez, supra, 617 F.2d at 959. The Second Circuit therefore rejected the contention that no assignment of the injured employee’s claim had been effected under § 33(b) because neither the deputy commissioner nor the claims examiner had ever filed a formal compensation order.

However, in Pallas Shipping, supra, the Supreme Court unanimously held that, in the absence of a formal compensation order or an award entered by the Secretary of Labor, an employee’s acceptance of compensation payments cannot lead to an assignment of his right of action against third parties. Id. 461 U.S. at 534, 103 S.Ct. at 1994. The Court stated:

Section 33(b) triggers an assignment of an injured longshoreman’s cause of action against a third party only after he has accepted compensation “under an award in a compensation order filed by the deputy commissioner or Board.” (Emphasis added.) The term “compensation order” in the LHWCA refers specifically to an administrative award of compensation following proceedings with respect to the claim. 33 U.S.C. § 919(e) In this case, no administrative proceedings ever took place, and no award was ever ordered by the Deputy Commissioner. .

Pallas Shipping, supra, 461 U.S. at 534, 103 S.Ct. at 1994. (footnote omitted).

In so holding, the Supreme Court stressed that this strict construction of Section 33(b) was supported by its legislative history. As Judge Haight stated in Marchi v. Malaysia Marine Corp., No. 78 Civ. 711 (CSH) (S.D.N.Y. April 2, 1984), in summarizing the Pallas Shipping analysis:

In adopting this literal approach to the phrase, the Court emphasized that the requirement of a formal award was intended to assure that the worker did not unintentionally forfeit his rights against third parties by accepting compensation payments while ignorant of the effects of § 933(b). [Pallas Shipping, supra, 461 U.S. at 536, 103 S.Ct. at 1995.] Service of the formal order, required by 33 U.S.C. § 919(e), puts the longshoreman on notice of the necessity of moving against the third party within six months. Id. at [538, 103 S.Ct. at 1996]. In distinguishing voluntary payments from those rendered under a formal order, the Court noted that formal orders have certain characteristics that voluntary payments do not: the orders are signed by the deputy commissioner and are administratively reviewable and judicially enforceable. Failure to comply with them subjects the employer to more severe penalties than failure to comply with an agreement. Id. at [534, 103 S.Ct. at 1994].

Marchi, supra, slip op. at 3-4.

Similarly, other post-Pallas Shipping decisions have held that only the issuance of a formal compensation order will trigger the § 33(b) limitations period. Thus, in Costa v. Danais, 714 F.2d 1 (3d Cir.1983), the Third Circuit unequivocally stated:

As we read Pallas Shipping the Supreme Court has adopted a strict reading of the term “compensation order.” The Court emphasized the importance of the formal order in the statutory scheme and the necessity for removing the uncertainty in practice. The statutory provisions will be far more effective if neither longshoremen nor employers are in doubt as to the action that begins the six-month period. The Court has taken the position that anything less than a formal order signed by the deputy commissioner does not satisfy the requirements of the statute. Because the memorandum filed in this case is something less than such an order, we conclude that it does not constitute a “compensation order” under section 33(b).

Costa, supra, 714 F.2d at 4 (footnote omitted).

That view was followed by Judge Lasker in Brunetti v. Cape Canaveral Shipping Co., 572 F.Supp. 854 (S.D.N.Y. 1983), in denying defendant’s motion for summary judgment pursuant to section 33(b) of the LHWCA. The Brunetti court specifically concluded that a Memorandum of Informal Conference was not an award of compensation within the meaning of section 33(b). Id. at 855-57. See also, Gaymon v. Prudential Lines, No. 80 Civ. 5057 (CSH) (S.D.N.Y. April 2, 1984) (Haight, J.); Rainieri [Ranieri] v. Prudential Lines, No. 80 Civ. 2252 (CSH) (S.D.N.Y. April 2, 1984) (Haight, J.); Alvarez v. National Shipping Corp., No. 80 Civ. 0491 (CSH) (S.D.N.Y. April 2, 1984) (Haight, J.); Marchi v. Malaysia Marine Corp., supra, No. 78 Civ. 711 (CSH) (S.D.N.Y. April 2, 1984) (Haight, J.); DiGiacomo v. Partenreederi M.S. Heidi Leonhardt, 78 Civ. 5491 (LBS) (S.D.N.Y. Feb. 29, 1984) (Sand, J.); Pivac v. Netumar Lines, No. 82 Civ. 8101 (PNL) (S.D.N.Y. March 13, 1983) (Leval, J.); Castro v. Compania Transatlantica Espanola, No. 78 Civ. 4953 (MJL) (S.D.N.Y. August 31, 1983) (Lowe, J.).

In view of these holdings, it is clear that defendant’s motion must be denied. The settlement of December 20, 1979 in the instant case did not even reach the level of the settlements found insufficient in the above-cited cases, wherein the claims were either settled by Memoranda of Informal Conference or supervised by claims examiners. It therefore clearly lacked the indicia of formality required by Pallas Shipping, supra, and cannot constitute a formal “compensation order” within the meaning of § 33(b).

For all the foregoing reasons, plaintiff’s action is not time-barred under section 33(b) of LHWCA, 33 U.S.C. § 933(b). Defendant’s motion to dismiss is denied.

It is SO ORDERED.

      . The summons served upon defendant in the state court action is captioned “Summons with Notice." See CPLR § 306. While plaintiffs counsel did not describe the object of the action and the relief sought on the face of the summons, see Ex. 3 to Plaintiffs Affirmation in Opposition, the “date of accident” and “place of occurrence” were noted on the affidavit of service accompanying the summons. See Ex. B to Defendant’s initial Notice of Motion to Dismiss. This summons, which was dated July 17, 1978, and served without an accompanying complaint on July 20, 1978, was apparently never followed by the service and filing of a complaint in the state court.

      . Plaintiffs attorneys filed a “Stipulation Discontinuing Action.” It is unclear whether this discontinuance was undertaken in reliance upon defendant’s request that the state court action be discontinued so as to avoid duplicative litigation, or whether plaintiffs discontinuance was undertaken of his own independent volition. At any rate, the stipulation appears to have been signed by plaintiffs attorneys only. See Ex. 6 to Plaintiffs Affirmation in Opposition.

      . It should be noted that the compensation order issued in this case was for attorney's fees only. Along with notification of OWCP’s acceptance of the settlement agreement of December 20, 1979, that order was issued on March 26, 1980 — well within the six-month limitation period of § 33(b). Thus, the Court need not reach the issue of whether this compensation order, which pertains to attorney’s fees only, properly constitutes "an award in a compensation order” within the rationale of Pallas Shipping, supra, 461 U.S. at 534, 103 S.Ct. at 1994.
      In light of the Court’s findings with respect to plaintiff s other contentions, it is unnecessary to rule upon the plaintiffs contention that his state court action, which was commenced years prior to the settlement date, and which plaintiff asserts would not have been discontinued if defendant had included a § 33(b) claim in its affirmative pleadings, should act to preclude the running of the § 33(b) limitations period.

      . In Pallas Shipping, although the injured longshoreman accepted voluntary compensation payments from his employer, neither a formal compensation order nor a memorandum of informal conference was filed by the deputy commissioner or claims examiner. The employer did, however, file two documents with the Department of Labor manifesting his voluntary agreement to pay compensation to the longshoreman. Pallas Shipping, supra, 461 U.S. at 534, 103 S.Ct. at 1994.

      . The rationale for the Pallas Shipping decision seems to be particularly compelling in a case like Speerin’s, where there was no notice from the Department of Labor until March of 1980. The statutory scheme contemplates that a plaintiff be given the opportunity to make a knowledgeable decision on whether to bring an action against a third party within six months after the amount of compensation to which he is entitled is established by a judicially enforceable order. See Pallas Shipping, supra, 461 U.S. at 538, 103 S.Ct. at 1996.