text:
    UNITED STATES of America v. Juan AGREDA, Defendant.
    No. 78 CR 350.
    United States District Court, E.D. New York.
    June 19, 1985.

      Raymond J. Dearie, U.S. Atty., E.D.N.Y. by Patricia A. Pileggi, Asst. U.S. Atty., Brooklyn, N.Y., for the U.S.
    Michael G. Dowd, Kew Gardens, N.Y. and Bronis & Pórtela by Stephen J. Bronis, Miami, Fla., for defendant.
   MEMORANDUM AND ORDER

PLATT, District Judge.

Defendant moves pursuant to the Sixth Amendment to the United States Constitution and Rule 48(b) of the Federal Rules of Criminal Procedure to dismiss the indictment herein on the ground that his rights to a speedy trial have been violated in that the indictment in the instant case was returned on June 20, 1978, and that he was not arrested until February 10, 1985.

On its return the indictment was sealed and was not thereafter unsealed until defendant’s friend and co-defendant Bernabe Oliveras was arrested and arraigned thereon on July 22, 1981.

During the entire period between the return of the indictment and the date Of his arrest the defendant has been a resident and a citizen of his native country of Venezuela, where he has lived (according to the testimony of his daughter) in four or more separate houses with his wife, son and daughter. His daughter also testified that the defendant was unaware of the pending indictment against him until he was arrested on February 10, 1985.

The testimony at the evidentiary hearing was further clear that during the period between indictment and arrest the defendant had undertaken a number of commercial transactions in the United States and in connection therewith had regularly traveled to the United States, making numerous trips thereto using passports and visas issued to him under his true name.

Moreover, on or about November 2,1981, while the defendant was in Miami, Florida on one of these business trips, he was shot and wounded by one or more unidentified person or persons. During his treatment at Jackson Memorial Hospital he was interviewed by police officers about the shooting and various reports were made of the incident. Subsequent to his discharge from such hospital he traveled to and convalesced in Florence, Alabama.

In its memorandum the Government sets forth an interesting “Statement of Facts”, a substantial portion (if not all) of which it presumably intends to prove at the trial and which we set forth in full herein so that the reader may be apprised of the nature of the Government’s claims:

“In 1977, Eduardo Pernia Bonnett, a cooperating source, provided DEA agents with details of a large cocaine smuggling conspiracy whose membership included the defendant Agreda and which was responsible for the monthly importation into the United States of approximately 100 pounds of cocaine. Bonnett described one of the methods of importation as involving the acquisition of cocaine from laboratories in Colombia and the transportation of that cocaine to Venezuela. In Venezuela, the defendant arranged for 30-50 kilogram quantities to be placed on Venezuelan ships. This cocaine was then transported to Miami. In Miami, the defendant arranged for the offloading of the cocaine. The cocaine was then transported by car or by Amtrak’s Autotrain to New York where the defendant supervised the distribution of the cocaine.

“Bonnett decided to cooperate with the Drug Enforcement Administration after the defendant Agreda and others threatened to kill Bonnett because they believed he had stolen $240,000 from them. Prior to Bonnett’s coopertion, Bonnett had made reservations at the Hilton Hotel, 1335 Avenue of the Americas, New York for Agreda. Agreda brought a suitcase containing $240,000, the proceeds of cocaine distributions, to the hotel. After leaving the suitcase in that room, Agreda claimed that Bonnett had stolen the case from the hotel room.

“After the disappearance of this cash, Agreda and co-defendants Bernabé Oliver-as, Jose Selimo Garcia, and Juan Manuel confronted Bonnett at his residence. Agreda threatened to kill Bonnett. Co-defendant Bernabé Oliveras interceded on behalf of Bonnett, asking that Bonnett’s life be spared. Oliveras pointed out that Bonnett’s father was a presidential candidate in Colombia and that he (Oliveras) was related by marriage to Bonnett. Agreda and the others were persuaded by Oliveras. After this incident, Bonnett contacted federal agents and began providing information concerning the importation of cocaine by Agreda and his co-conspirators.

“Bonnett’s debriefings included his admission that on March 9, 1977, he smuggled $200,000 of currency in a false bottom suitcase out of the United States and into Colombia for Agreda and co-defendants Jose Selimo Garcia and Hector Chacon. Jose Selimo Garcia and Hector Chacon escorted Bonnett to the John F. Kennedy International Airport where he departed for Colombia. In Colombia, Agreda met Bonnett at the airport.

“During this trip to Colombia, Bonnett learned of the group’s plans to import twenty kilograms of cocaine to the United States. The cocaine was to be driven from Bogota, Colombia to Caracas, Venezuela. Then, in Caracas, the defendant Agreda was to turn the twenty kilograms over to a Venezuelan ship’s captain. This ship would transport the cocaine to Miami. From Miami, the cocaine would be transported to New York.

“On March 13, 1977, Bonnett returned to New York, and was contacted by Oliveras who asked Bonnett to keep 35 kilograms of cocaine in Bonnett’s apartment. Subsequently, at Oliveras’ request, Bonnett met Oliveras at the apartment. During the course of Bonnett’s meeting with Oliveras, Agreda came to the apartment, picked up a large quantity of cocaine, placed it in a suitcase and left.

“At the request of DEA agents, Bonnett consented to the recording of phone conversations with Agreda as well as with co-defendants Bernabé Oliveras, Mendoza, and Jose Selimo Garcia. In addition, Bonnett wore a Nagra recorder during meetings with Agreda and Oliveras. During these discussions, particularly those with Agreda, frequest references were made to the cash taken from Agreda’s hotel room. Bonnett also discussed, with Agreda, various ways that he could help Agreda recover the lost cash. Specifically, on August 10, 1977, Agreda offered to sell ‘pure’ cocaine to Bonnett at $32,000 per kilogram. In this same conversation, Agreda indicated to Bonnett that he did not expect Bonnett to pay him for the lost cash and that he considered the stolen funds ‘a campaign contribution,’ an apparent reference to Bonnett’s father.

“On June 21, 1978, a sealed indictment was filed, in the Eastern District of New York charging the defendant, and fourteen co-defendants, with conspiring to import substantial quantities of cocaine into the United States, in violation of Title 21, United States Code, Section 963. Arrest warrants were issued for each of these individuals.

“In July of 1978, the defendant’s name was entered into ‘Narcotics and Dangerous Drugs Information System’ (NADDIS) and Treasury Enforcement Computer System (TECS). The information entered into this system provided all federal criminal investigators with Agreda’s name, the charges contained in the indictment and a brief description of these charges. Because Agreda’s date of birth was unknown, federal agents were unable to enter information concerning Juan Agreda into National Crime Information Computer (NCIC) which would have given state and local law enforcement officers direct access to information concerning the indictment and arrest warrant outstanding against Agreda. At the time the indictment was returned, DEA agents knew, as a result of information provided by Bonnett, that Agreda resided in Caracas, Venezuela and that he travelled to Miami and New York using false documentation. In addition, Bonnett provided agents with a telephone number used by Agreda in Caracas in 1977. DEA agents also obtained information from the business records of the Hilton Hotel, 1335 Avenue of the Americas, New York, New York where Agreda stayed in 1977. These bu-sines records revealed that a Juan Agreda, a Venezuelan citizen, stayed at this hotel.

“In September of 1981, after receiving information from the Hilton Hotel and Bonnett, a request was made to the DEA District Office in Caracas, Venezuela for subscriber information pertaining to the phone number provided by Bonnett. In addition, DEA District Offices in Caracas, Venezuela and Bogota, Colombia were asked to provide current intelligence on Juan Agreda. DEA agents made further requests for information concerning Agreda of the District Office in Caracas, Venezuela in April of 1982.

“Between the filing of the indictment, in 1978, and 1981, fifteen additional individuals were arrested during the course of DEA’s continuing investigation into this group’s importation of cocaine. Individuals arrested included Agreda’s co-defendant Bernabé Oliveras. With each arrest, DEA agents attempted to ascertain, through the questioning of cooperating individuals as well as through analysis of documents seized, the whereabouts of Agreda. No new information was obtained until June of 1982, when a confidential source, advised DEA agents that Agreda was living in Caracas, Venezuela. That source further stated that Agreda was involved in the transportation of between 40 and 100 kilograms of cocaine from Brazil to Venezuela and ultimately Miami. This source also informed agents that, during a dispute concerning his cocaine business, Agreda was shot in Miami, Florida. This source further stated that Agreda was recovering, in a hospital in Greece, from these wounds and that he was having one of his arms amputated. The confidential source provided DEA agents with two telephone numbers used by Agreda in Caracas. These telephone numbers were different from those previously provided by Bonnett.

“Because the confidential source did not know the date or location of the shooting incident, nor the name of the hospital where Agreda was treated, and because this new information indicated that Agreda was in Greece, DEA agents did not make inquiries of the City of Miami or Miami Beach police departments concerning Agreda’s whereabouts.

“In June of 1982 the DEA case agent requested that the DEA District Office in Caracas, Venezuela provide him with subscriber information concerning the telephone numbers provided by this Confidential Source. Further requests for information were made of the Caracas District Office in August of 1982 and February of 1983.

“In June of 1984, Juan Agreda applied for a visa at the United States Embassy in Caracas. Officials at the United States Embassy learned, through NADDIS, that Agreda was a fugitive. Agreda again applied for a visa on January 19, 1985. The United States Embassy was advised to grant him a visa and to ascertain his travel plans. The embassy complied and determined that Agreda intended to enter the United States through Miami on February 10, 1985. This information was relayed to DEA.

“Agreda was subsequently arrested on February 10, 1985 at the Miami airport.”

At the evidentiary hearing, Special Agent Arthur Anderson of the Drug Enforcement Agency testified that the DEA was unaware of the defendant’s numerous trips to and business in the United States and of the injury he sustained in Miami and his recuperation in Alabama and that the DEA did not pursue requests for information concerning the defendant of the District Office in Caracas, Venezuela because the United States did not have an extradition treaty with Venezuela which would enable the Government to utilize more specific information as to the defendant’s whereabouts in the latter country.

Special Agent Anderson further testified that informers had advised the DEA that when the defendant came to this country he used false names and documentation and that, in effect, a verification of the shooting incident in Miami would have been impossible to trace without more specific information than was given to them.

I.

Both sides agree that the Supreme Court has established a four-part balancing test to determine whether a defendant’s constitutional right to a speedy trial has been violated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), namely, (i) the length of delay, (ii) the reasons for the delay, (iii) the nature of the defendant’s assertion of his right to a speedy trial, and (iv) the prejudice caused to the defendant as a result of the delay (id. at 530-33, 92 S.Ct. at 2192-93).

Moreover, both parties agree that the length of the delay in the case of Barker (in excess of seven years) is considered “presumptively prejudicial” (id. at 530, 92 S.Ct. at 2192).

Such presumption compels us to inquire into the other three factors to determine whether they overcome the same.

II.

As to the second factor, i.e., the reason for the delay, the Government has a duty under normal circumstances to make a diligent good faith effort to locate and apprehend a defendant and bring him or her to trial. The question is “whether the reason for the delay is because the Government breached that duty.” United States v. Deleon, 710 F.2d 1218, 1221 (7th Cir.1983).

Before commencing this analysis we must remember that hindsight is better than contemporaneous or foresight and Monday morning quarterbacking is a favorite sport of armchair strategists and litigating lawyers.

In all fairness, we must examine this question in the light of facts known at the time action or non-action is taken.

The DEA knew that it had a sealed indictment until June 16, 1980; it further knew that defendant’s co-conspirator and cousin, Hector Chacon, had been murdered in Texas in 1978; and it also knew that there were contracts out on the lives of all the defendants and that defendant Agreda had traveled to the United States under false names and documents; but it also learned some six months after the event that he had been shot and wounded in Miami, Florida, and that he had gone to Greece to recover in a hospital there. The DEA says it did not know the defendant’s correct address or telephone number in Venezuela, nor did it know that he was continuing to make trips under his true name to the United States.

The defendant says now that the DEA “should have” attempted to locate the defendant in Venezuela, that it “should have” realized he was using his true name and continuing to enter the United States, and “should have” alerted the United States Embassy in Venezuela and Customs at key points in this country, and that it “should have” investigated the details of the shooting in Miami.

Viewed objectively, none of these “should haves” makes much sense. If the DEA had located the defendant in Venezuela and advised him of the indictment, they would have made sure of only one thing, namely, that he would never return to this country again. And, as Special Agent Anderson pointed out, there was no legal way that the DEA could have compelled him to return. Secondly, there was no reason for the DEA to believe that the defendant would openly (as distinguished from covertly) return to this country, his cousin and co-defendant having been murdered, contracts being out on the lives of all of the remaining defendants, and he himself having been the target of an apparent attempted murder. Finally, the DEA says it did not have sufficient facts with respect to the six months old reported attempt oh defendant’s life in Miami to conduct any kind of a meaningful investigation.

The best the DEA could hope for, according to the Government, was either a good informant’s tip or the break it received when the defendant’s name was spotted on the NADDIS check by an alert official at the U.S. Embassy in Venezuela. When this happened, a prompt arrest was thereafter made. Under the circumstances, the Government may not properly be charged with negligence or breach of duty contributing to the delay.

A not dissimilar situation existed in United States v. Deleon, 710 F.2d 1218 (7th Cir.1983), wherein the Court of Appeals concluded that “any delay in this case was caused not by the Government’s negligence but by Deleon’s fugitive status” at 1221, and went on to say in pertinent part:

“With respect to the contention by Deleon that the Government should have found him while he was in the custody of Texas officials or while he was out on bond, we do not agree. Deleon does not allege that the Government received information from Texas officials concerning Deleon’s whereabouts. Furthermore, we do not believe that knowledge of Deleon’s location by the Texas authorities should be imputed to the federal government. We also do not agree with Deleon regarding his assertion that the Government should have found and apprehended him on one of the occasions when he crossed the U.S.-Mexican border. In light of the fact that thousands of people both legally and illegally cross the border daily, we believe that such a requirement, without some type of reasonable lead, would place too great a burden on the Government.”

710 F.2d at 1221.

So also in the case at bar, knowledge of the defendant’s location by the Miami and/or Florida authorities should not be imputed to the Federal Government nor is it reasonable to hold that the Government should have found and apprehended the defendant on one of the occasions when he entered Miami absent “some type of reasonable lead.” Moreover, as in Deleon, there is no allegation in the case at bar that “the Government deliberately delayed in apprehending” the defendant herein.

m.

The third Barker factor, i.e., the nature of the defendant’s assertion of his right to a speedy trial, is not relevant or applicable herein.

IV.

As to the fourth factor, in Barker v. Wingo, 407 U.S. at 532, 92 S.Ct. at 2193, the Supreme Court offered the following guidelines:

“A fourth factor is prejudice to the defendant. Prejudice, of course, should be asserted in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.”

and thereafter elaborated on these guidelines as follows:

“The Sixth Amendment right to a speedy trial is ... not primarily intended to prevent prejudice to the defense caused by passage of time; that interest is protected primarily by the Due Process Clause and by statutes of limitations. The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges.”

United States v. MacDonald, 456 U.S. 1, 8, 102 S.Ct. 1497, 1502, 71 L.Ed.2d 696 (1982).

In the case at bar there was virtually no prejudice to the defendant under the foregoing guidelines; there was no pretrial incarceration between the date of the indictment and the date of defendant’s arrest; the defendant was not burdened with any anxiety and concern because he claims he did not have any knowledge of the existence of the pending indictment and no evidence was introduced at the hearing that would indicate that any defense available to the defendant might have been impaired by virtue of the lapse of time. Indeed, a substantial portion of the Government’s case appears to be based upon taped conversations of the defendant and these tapes, of course, are being made available to the defendant at this time.

Based on all of the foregoing, after balancing the four factors listed in Barker v. Wingo, we believe that there has been no denial of defendant’s constitutional right to a speedy trial.

Rule 48(b) Motion

Defendant also claims that because of the more than seven years delay we should dismiss the indictment under Federal Rule of Criminal Procedure 48(b). However, as stated by the United States Supreme Court in United States v. Marion, 404 U.S. 307, 319, 92 S.Ct. 455, 462, 30 L.Ed.2d 468 (1971), Rule 48(b) “clearly is limited to post-arrest situations.” See also United States v. Deleon, 710 F.2d at 1223.

For the foregoing reasons, defendant’s motion to dismiss the indictment must be and the same hereby is denied.

SO ORDERED.


source: Caselaw Access Project

license: Public Domain

text:
    David L. TIMOTHY, et al., Plaintiffs, v. The UNITED STATES of America, Defendant.
    Civ. No. C 80-445A.
    United States District Court, D. Utah, C.D.
    June 20, 1985.
    Allan M. Swan, Kirton & McConkie, Salt Lake City, Utah, for plaintiffs.
    Richard K. Willard, Acting Asst. Atty. Gen., Donald E. Jose, Asst. Director, Torts Branch, Ralph H. Johnson, Trial Atty., Torts Branch, Washington, D.C., Brent D. Ward, U.S. Atty., Salt Lake City, Utah, for defendant.
   I. INTRODUCTION ■

ALDON J. ANDERSON, Senior District Judge.

In 1980, plaintiffs filed a Federal Tort Claims Act complaint alleging that the certain diseases, contracted by plaintiffs or plaintiffs’ decedents, were caused by exposure to radioactive fallout from detonations at the Nevada Test Site.

The United States has filed three previous motions for partial summary judgment in this action, each of which has been granted. The first motion requested dismissal of this action as it pertained to the death of plaintiffs’ decedent Hale Holgate from chronic lymphatic leukemia. The affidavits filed by the United States in support of its motion indisputably demonstrated that chronic lymphatic leukemia is not causally associated with exposure to ionizing radiation.

The United States’ second motion for partial summary judgment requested dismissal of plaintiff Alfred Rosenhan’s complaint as barred by the Federal Tort Claims Act statute of limitations, 28 U.S.C. § 2401. Based upon the documents submitted by the United States in support of its motion, this Court concluded at page 4 of its August 8, 1983 Order:

From the above evidence it seems clear that Mr. Rosenhan was fully aware of his injury and its probable cause by radioactive fallout no later than 1978. Other evidence presented by the Government without dispute may show that he was aware of these crucial facts much earlier—whether or not he was, it is certain that he was aware more than two years before he filed his administrative claim.

In its third motion for partial summary judgment the United States requested dismissal of this action as it pertained to plaintiff Sherman Holgate’s autoimmune thyroiditis and hypothyroidism diseases. The affidavits presented by the United States in support of its motion showed that autoimmune thyroiditis has not been associated with exposure to ionizing radiation and that radiation-induced hypothyroidism occurs only after exposure to very large doses of radiation—thousands of times greater than Holgate’s reconstructed dose. Plaintiff Holgate consented to the dismissal of his complaint.

The United States’ first three motions for partial summary judgment demonstrate that this procedure is an efficient means of obviating the need for costly and lengthy trials by dismissing claims in which there is no genuine issue as to any material fact. Accordingly, this Court encouraged the United States to continue filing such motions regarding those diseases in this action which the scientific community has determined to be non-radiogenic. In response, the United States filed a fourth partial summary judgment motion. In support of the motion the United States commissioned several dosimetric studies and caused the medical records and pathological tissue samples of four additional plaintiffs or their decedents to be examined by medical experts. Their uncontradicted findings are reported below.

Plaintiffs Gil Mitchell and Lucille Whitehead contracted a disease known variously as malignant lymphoma, lymphosarcoma, or histiocytic lymphoma (lymphoma). See paragraphs 2 and 3 of the Affidavit of Dr. William C. Moloney Exhibit B, Memorandum in Support of the United States’ Motion for Partial Summary Judgment, hereinafter “Memorandum”.

Plaintiffs’ decedent Becky Farnsworth died of a disease known variously as schwannoma, neurogenic sarcoma, malignant neurilemmoma or peripheral nerve sheath tumor (neurofibrosarcoma). See paragraphs 2 and 3 of the Affidavit of Dr. Bernd W. Scheithauer (Exhibit C, Memorandum).

Plaintiffs’ decedent Lynette Tew died of a disease clinically diagnosed as glioblastoma multiforme (CNS tumor). The pathological study of tissue obtained at surgery included brain tissue with no tumor present. The diagnosis of glioblastoma remains possible and consistent with the clinical course, but cannot, be considered proven. See paragraphs 4 and 5 of the Affidavit of Dr. George B. Hutchison (Exhibit D, Memorandum).

For the reasons set forth below this Court concludes there is no material issue of fact that the diseases of the above named plaintiffs or plaintiffs’ decedents were not caused by exposure to radioactive fallout from the Nevada Test Site.

II. LYMPHOMA

Recently, pursuant to the Orphan Drug Act (Section 7B, Public Law 97-414), the United States Department of Health and Human Services established the National Institute of Health Ad Hoc Working Group to Develop Radioepidemiological Tables. This group was required by the statute to review the epidemiological data regarding radiation-induced diseases and construct statistical tables showing the probability that certain cancers result from prior exposure to specific doses of radiation. As noted in paragraph 4 of the Affidavit of Nobel Laureate Rosalyn S. Yalow (Exhibit 3, Memorandum), on September 18, 1984, this group reported to the Committee on Labor and Human Resources of the United States Senate that, based on the latest available data, a causal relationship between ionizing radiation exposure and lymphoma could not be established. On January 4, 1985, the NIH Working Group published its final report. Lymphoma was listed as an excluded site; that is, a causal relationship between the disease and exposure to ionizing radiation could not be established. See “Report of the National Institutes of Health Ad Hoc Working Group to Develop Radioepidemiological Tables,” U.S. Department of Health and Human Services (1985).

In a paper entitled, “Leukemia, Lymphoma, and Multiple Myeloma,” included in a recent treatise on the subject of radiation-induced disease, Dr. Robert W. Miller and Dr. Gilbert W. Beebe of the Clinical Epidemiology Branch of the National Cancer Institute state:

Ionizing radiation is strongly clastogenic (breaks chromosomes), but its effect on immunologic defenses is not the sort that predisposes to lymphoma. The unequal susceptibility of various tissues to the carcinogenic effects of ionizing radiation and its possible explanation, illustrate the need to consider influences other than radiation in epidemiologic studies of persons exposed to this physical agent [radiation].

At page 18 of their paper the authors conclude that, “[r]adiation does not induce chronic lymphocytic leukemia or lymphoma.” See paragraph 7 of the Affidavit of Dr. Joseph L. Lyon (Exhibit A, Memorandum).

The largest and most complete epidemiological study of the relationship between ionizing radiation and cancer incidence is that based upon the Japanese atomic bomb survivors. The most recent epidemiological data from this study show that a causal relationship between exposure to ionizing radiation and lymphoma cannot be established. Id., paragraph 6.

Dr. William C. Moloney, an Emeritus Professor of Medicine at Harvard Medical School and former Deputy Director of the Atomic Bomb Casualty Commission in Hiroshima, Japan, states in paragraph 5 of his affidavit (Exhibit B, Memorandum):

I have had considerable clinical experience in the treatment of lymphosarcoma [lymphoma]. In a series of over one thousand cases which I have followed over the past sixteen years, ionizing radiation has not been an etiologic [causative] factor. It is my expert opinion, as a matter of reasonable medical certainty, that there is no causal relationship whatsoever between the diseases contracted by Mr. Mitchell and Mrs. Whitehead [lymphomas] and exposure to ionizing radiation.

III. NEUROFIBROSARCOMA AND CNS TUMOR

The causal relationship between neurofibrosarcoma and CNS tumors and exposure to ionizing radiation, like lymphoma, has been studied extensively. Dr. Bernd W. Scheithauer, a neuropathologist at the Mayo Clinic, searched the medical records of Mayo Clinic, from the year 1912 to 1981 in an effort to study the x-radiation exposure history of all Mayo Clinic patients with neurofibrosarcoma. In paragraph 5 of his affidavit (Exhibit C, Memorandum), Dr. Scheithauer states:

My own research and the medical literature indicate that ionizing radiation can induce neurogenic sarcoma. However, the radiation dose and the incidence of neurogenic sarcoma appear to be related; that is neurogenic sarcoma has only been reported where there has been a therapeutic dosage in excess of several hundred rads administered.

The major studies by Dr. George B. Hutchison, Professor of Epidemiology at Harvard School of Public Health, illustrate that an excess of neurofibrosarcoma and CNS tumors has not been found in populations exposed to small radiation doses. See paragraphs 2 and 6 of the Affidavit of Dr. George B. Hutchison (Exhibit D, Memorandum).

Similarly, the studies by Dr. Arthur C. Upton, Professor and Chairman of the Department of Environmental Medicine at New York University School of Medicine and former Director of the National Cancer Institute, demonstrate that a few neurogenic tumors and glioblastoma multiforme have been reported to occur after exposure to hundreds or thousands of rem, but there is no evidence that they are induced at lower doses. See paragraph 5 of the Affidavit of Dr. Arthur C. Upton (Exhibit H, Memorandum).

Therefore, to determine whether Farnsworth’s and Tew’s tumors may be attributable to Nevada Test Site fallout exposure, it is necessary to calculate their probable fallout doses. To assure the greatest possible accuracy in calculating the doses, the United States commissioned several different dosimetry studies, and paid for an additional dosimetry study requested by plaintiffs’ counsel.

The first study involved calculating the doses to Farnsworth and Tew by using fallout measurements made by Dr. Robert C. Pendleton of the University of Utah. This study is significant because plaintiffs have stated they will rely upon the Pendleton measurements to show they or their decedents were exposed to a harmful amount of fallout. See Plaintiffs’ Reply Memorandum in Support of Plaintiffs’ Motion to Amend August 14,1984 Order, page 3. Counsel for the United States requested the custodian of Dr. Pendleton’s fallout data collection, Dr. Ray D. Lloyd of the University of Utah Radiobiology Laboratory, to calculate the external and internal dose to Farnsworth and Tew using Dr. Pendleton’s fallout measurements.

Remarkably, the Pendleton measurements indicated 7.3 times less fallout deposition than the measurements used by Lawrence Livermore National Laboratory to compute radiation doses for plaintiffs’ decedents. See paragraph 4 of the Affidavit of Dr. Ray D. Lloyd (Exhibit G, Memorandum).

Dr. Pendleton, Dr. Lloyd, and other researchers at the University of Utah also measured the internal deposition of radioactivity in people in Duchesne County, where plaintiffs contend their fallout exposure occurred. These studies began in 1962 and some have continued to the present time. As Dr. Lloyd observes in paragraph 5 of his affidavit (Exhibit G, Memorandum):

In particular, there were included in this number a few people during 1962 to 1966 who were living near the [plaintiffs’] decedents dairy farms in the vicinity of Mountain Home and Talmadge [Utah] ... One of these subjects was a female born in 1949, the same year as Lynette Tew [plaintiffs’ decedent who contracted a CNS tumor]. Others were young females born in 1946 and 1947; 2 adult females; young men born in 1956 and 1957; and an adult male____

From these measurements Dr. Lloyd concludes:

In summary, the Cs-137 in both the soils collected near Mountain Home and Talmadge, Utah, in the 1960’s and in the people residing in the vicinity indicate that the internal and external radiation doses in Duchesne County resulting from NTS fallout were relatively low in magnitude, particularly when they are compared with corresponding doses from natural sources of external radiation and internal radioactivity.

A second dose calculation study was performed at the Lawrence Livermore National Laboratory (LLNL) by Dr. L.R. Anspaugh, head of the LLNL Environmental Sciences Division. In his affidavit (Exhibit F, Memorandum) at paragraph 3, Dr. Anspaugh reports:

It is my expert opinion, as a matter of reasonable scientific certainty, that the best estimate of the whole body dose is 0.28 rads for Lynette Tew [who contracted CNS tumor] and 0.0035 rads for Becky Farnsworth [who contracted neurofibrosarcoma].

As Dr. Lloyd explains in paragraphs 4 and 6 of his affidavit (Exhibit G, Memorandum), the Pendleton measurements and the measurements relied upon by LLNL were independently made, yet the resultant dose calculations mutually confirm negligible doses to plaintiffs’ decedents:

The soil samples used in the Anspaugh (LLNL) report were different samples from those to which I had access [the Pendleton measurements], taken at a different by different people. Although the methodology of calculating the fallout Cs-137 in 1955 was the same in the Anspaugh analysis and in the present [Lloyd] analysis, the samples for which the calculations were done were not the same, so that there is independence between the two analyses.
* $ 9k $ $ J)s
I have examined the external and internal dose calculations by Dr. Anspaugh of Lawrence Livermore National Laboratory____ It is my opinion that the conclusions about the total body radiation doses to the two subjects named above [plaintiffs’ decedents] given in the LLNL report are compatible with my own conclusions, and it should be noted that I relied upon independent data for my calculations. It is my opinion that the LLNL report is confirmatory of my conclusions.

In paragraph 4 of his affidavit Dr. Lloyd further observes that, whether the lower University of Utah doses or the higher LLNL doses are considered, the dose

... in both cases was a small fraction of the external exposure from natural sources, such as cosmic rays from outer space; uranium, thorium, potassium, etc., in the earth, food, household goods, our own and other peoples’ bodies, and building materials; natural radioactivity in the air and so on.

Finally, in paragraph 8 of his affidavit Dr. Lloyd states that the plaintiffs’ decedents’ doses are so “many times lower than any credible estimate of natural background radiation for even a small fraction of a year” that attributing carcinogenic effects to such small doses would be “fruitless.”

In addition to the studies done by Dr. Anspaugh at LLNL and by Dr. Lloyd at the University of Utah, the United States also commissioned a study by researchers at the University of Utah’s Thermoluminescenee Laboratory, which commenced in June 1983 and employed a technique called “thermoluminescence dosimetry.” Essentially, this technique involved determining the doses of external gamma radiation which may have been received in quartz particles taken from residential housing bricks in various communities in Duschesne County, Utah, where plaintiffs and plaintiffs’ decedents lived.

The thermoluminescence measurements reveal the total dose received by the brick or other ceramic material, such as toilet tank tops, since it was fired in the kiln. The University of Utah scientists obtained permission to remove one-inch diameter brick cores from various homes in Duchesne County, then measured the radiation to which the quartz particles in the brick cores had been exposed. This measurement constituted the total radiation to which the sample had been exposed since firing in the kiln. To determine the natural background radiation dose to the sample, small dosimeters were placed near the holes from which the brick cores were removed. The background dose measured by the dosimeters was then subtracted from the gross dose to the brick cores to determine what amount of “non-natural” radiation, such as fallout, the bricks had absorbed.

The results of the brick study are set forth in a report entitled, “Summary of TL Dose Estimates: Duchesne County, Utah,” which is attached as Exhibit 5 to the Affidavit of Drs. Wrenn, Haskell, and Kaipa (Exhibit I, Memorandum). The results do not show a statistically significant radiation dose in excess of natural background radiation.

After the University of Utah laboratory advised plaintiffs’ counsel of the preliminary dose findings, plaintiffs’ counsel requested that the laboratory determine the dose to the quartz particles in some toilet tank tops from residences in Blue Bell and Upalco, Utah, which are communities in the vicinity of plaintiffs’ homes. Counsel for the United States agreed to seek funding for this study and plaintiffs’ counsel submitted two tank tops to the laboratory for analysis. See Memorandum, page 16.

The University of Utah report states, “It is noteworthy that the net dose measurements made on the samples taken from indoors (tank tops) did not differ significantly from those made on the exterior brick samples.” See footnote 9 of Exhibit 5 of the Affidavit of Drs. Wrenn, Haskell, and Kaipa (Exhibit I, Memorandum).

Dr. Lloyd, who calculated the doses to plaintiffs’ decedents using Dr. Pendleton’s fallout data, also reviewed the Thermoluminescence Laboratory’s findings and noted that the brick and tank top studies support one another, as well as his own calculations:

Additionally, I have examined the results of thermoluminescence measurements of building brick and toilet tank covers collected in Duchesne County, Utah, by Dr. Edwin Haskell and his associates at the University of Utah. Although the stated uncertainties in their output data are comparatively substantial, it is my opinion that their relatively low estimates of external radiation doses in excess of background (including global fallout and fallout from NTS, and a total of near zero is not excluded by their data) confirm, within the limits of their stated uncertainty, my calculations which indicate that the NTS fallout exposures in Duchesne County have been quite low. Also a comparison of the Haskell estimates of radiation exposure in the Duchesne area in excess of background from the several measurements of brick and from the measurements of toilet tank covers indicates that these two kinds of estimates are compatible with and confirmatory of each other. It is evident from their data that there has not been an episode of relatively high exposure to ionizing radiation in the Duchesne area.

Dr. Lloyd concludes:

Based upon Dr. Pendleton’s data, my own calculations and my evaluation of the pertinent reports of Dr. Anspaugh of LLNL as well, as the pertinent data of Dr. Haskell of the University of Utah, it is my opinion as a matter of reasonable scientific certainty that the purported diseases contracted by Lynette Tew and Becky Farnsworth were not caused by exposure to ionizing radiation from radioactive fallout originating at the Nevada Test Site.

See paragraph 7 and 9 of Dr. Lloyd’s affidavit (Exhibit G, Memorandum).

Dr. Scheithauer of the Mayo Clinic and Dr. Hutchison of the Harvard School of Public Health agree with this conclusion. In paragraph 7 of his affidavit (Exhibit C, Memorandum), Dr. Scheithauer states:

As my own research and the medical literature indicate that neurogenic sarcoma has not been associated with radiation exposure where the radiation dosage has been less than several hundred rads, it is my expert medical opinion, stated as a matter of reasonable medical probability, that Becky Farnsworth’s neurogenic sarcoma was not caused by exposure to radioactive fallout from the Nevada Test Site.

Dr. Hutchison in paragraph 7 of his affidavit (Exhibit D, Memorandum) similarly states:

Based on the reported radiation exposures and the pathology of tumors diagnosed for the two patients Lynette Tew and Becky Farnsworth it may be concluded from the available epidemiologic knowledge of radiation carcinogenesis that the probability of radiation induction of a tumor of either of these types is exceedingly remote. For the patient Lynette Tew, with exposure of .28 rad and an uncertain diagnosis of a brain tumor, there is a probability of approximately one in one million of such a tumor’s arising as a result of this irradiation. For the patient Becky Farnsworth, with exposure 0.0035 rad and a diagnosis of a peripheral nerve malignant tumor there is a probability of about one in one hundred million of such a tumor’s arising as a result of this irradiation.
It is further noted that the radiation dose of 0.28 rad is the background dose received by an average person in about 3 years. The dose of 0.0035 is the background dose received in about 2 weeks. It follows that all persons are subject to a carcinogenic effect of irradiation from background larger than the added effect, if any, to which these two patients were subjected.
On the basis of the above observations it is my expert opinion, stated as a matter of reasonable epidemiologic probability, that neither of the two tumors discussed was caused by exposure to radioactive fallout from the Nevada Test Site.

IV. CONCLUSION

Based upon the uncontradicted statements of the numerous experts cited above, this Court finds, as a matter of reasonable medical certainty and law, that the diseases contracted by plaintiffs Gil Mitchell and Lucille Whitehead and plaintiffs’ decedents Becky Farnsworth and Lynette Tew were not caused by exposure to radioactive fallout from the Nevada Test Site. Therefore, the United States’ Motion for Partial Summary Judgment is hereby granted and this action, as it pertains to the claims of the plaintiffs and plaintiffs’ decedents discussed above, is dismissed with prejudice.

      . By a written stipulation filed with the Court on April 4, 1983, the parties agreed that the medical specimen slides and medical records pertaining to these plaintiff and plaintiffs’ decedents, which had been received by counsel for the United States, were authentic slides and true and accurate records.

      . This special study group included many eminent scientists: Dr. Gilbert Beebe, a long-time researcher of health effects among the Japanese atomic bomb survivors and an expert in the Clinical Epidemiology Branch of the National Cancer Institute; Dr. David G. Hoel, Director of Biometry and the Risk Assessment Program of the National Institute of Environmental Health Sciences; Mr. Seymour Jablon, member of the Advisory Committee on the Radiation Effects Research Foundation of the National Academy of Sciences; Dr. Rosalyn S. Yalow, Director of the Solomon A. Berson Research Laboratory at the Veterans Administration Hospital, Bronx, New York and 1977 recipient of the Nobel Prize for Medicine. Dr. Charles E. Land, Health Statistician of the Environmental Epidemiology Branch of the National Cancer Institute; Dr. Oddvar F. Nygaard, Director, Division of Radiation Biology at Case Western Reserve University; Dr. Arthur C. Upton, Chairman of the Department of Environmental Medicine at the New York University Medical Center and former Director of the National Cancer Institute; and Dr. Joseph E. Rail, Deputy Director of the National Institutes of Health. See paragraph 3 of the Affidavit of Dr. Rosalyn S. Yalow (Exhibit 3, Memorandum).

      . To date, no excess incidence of neurofibrosarcoma and CNS tumor has been detected in Utah by the University of Utah researchers. Moreover, according to Dr. Joseph Lyon, who is directing the University’s studies, it is improbable that an increased incidence will be found. See paragraph 4 of the Affidavit of Dr. Joseph L. Lyon (Exhibit A, Memorandum).

      . Dr. Pendleton died in 1982. Prior to Dr. Pendleton’s death, Dr. Lloyd, a close associate of Dr. Pendleton at the University of Utah, was designated as custodian of Dr. Pendleton’s fallout data collection. See paragraph 2 of the Affidavit of Dr. Ray D. Lloyd (Exhibit G, Memorandum).

      . Plaintiffs did not respond to the United States' Motion for Partial Summary Judgment within the time period prescribed by Rule 5(e) of the Rules of Practice of the United States Courts for the District of Utah. However on April 10, 1985, this Court extended the time period for plaintiffs to respond to the United States’ motion until May 8, 1985.
      On May 13, 1985, plaintiffs' counsel, Allen M. Swan, advised the United States' counsel, Ralph H. Johnson, that plaintiffs had determined that they could not and would not respond to the United States’ summary judgment motion, but would not stipulate to a dismissal.
      Rule 56(e) provides in pertinent part:
      When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
      The United States’ Motion for Partial Summary Judgment is fully supported by affidavits of many of the nation’s leading scientists in the subject areas of medicine, radiobiology, epidemiology and dosimetry. Summary judgment is clearly appropriate.


author: GOETTEL, District Judge:

text:
    NEW WORLD CAPITAL CORPORATION, Plaintiff, v. POOLE TRUCK LINE, INC. and Walter L. Poole, Defendants.
    No. 84 Civ. 5432 (GLG).
    United States District Court, S.D. New York.
    June 20, 1985.

      Reaves & Yates, New York City, for plaintiff; Ray L. LeFlore, James A. Reaves, New York City, of counsel.
    Friedman & Gass, P.C., New York City, for defendants; Arthur S. Friedman, Laurie P. Josephs, New York City, and Richard A. Ball, Jr., Ball, Ball, Duke & Matthews, P.A., Montgomery, Ala., of counsel.
   OPINION

GOETTEL, District Judge:

The plaintiff, New World Capital Corporation (“New World”), is a Delaware corporation with its principal place of business in New York. It specializes in locating companies that wish to be acquired and matching them with companies seeking acquisitions.

This action arises out of a written agreement dated August 23, 1979, between New World and defendant Poole Truck Line, Inc. (“Poole Truck”), an Alabama corporation with its principal place of business in Evergreen, Alabama. The agreement provided that New World would attempt to locate a purchaser for Poole Truck. In return, Poole Truck would pay New World a “finder’s fee” if New World introduced Poole Truck to its eventual purchaser.

On or about June 9, 1980, New World introduced IU International Corporation (“IU”) to Poole Truck as a potential buyer. IU initially advised New World that it was not interested in the acquisition. Subsequently, unbeknownst to New World, IU and Poole Truck entered into negotiations. On October 6,1983, the Wall Street Journal reported that IU had agreed to acquire Poole Truck. On or about February 2, 1984, the sale was completed. Poole Truck refused to pay New World its “finder’s fee.”

On July 26, 1984, New World commenced this action against Poole Truck and Walter Poole, Poole Truck’s president and the former owner of 50% of its stock. New World asserted a claim against Poole Truck for breach of contract and against Walter Poole for tortious interference with the Poole Truck/New World agreement. Though this factual scenario may evoke some sympathy for the plaintiff, the merits of the dispute are not before the Court.

Before us are the defendants’ motions pursuant to Fed.R.Civ.P. 12(b) to dismiss both claims for lack of personal jurisdiction. Because the parties rely on numerous affidavits and exhibits outside of the pleadings, the Court will treat this as a motion for summary judgment. See Fed.R. Civ.P. 12(b)(6). Even when viewed in a light most favorable to the plaintiff, the facts do not support the exercise of personal jurisdiction over either defendant. The defendants’ motions are, therefore, granted.

I. Jurisdictional Facts

The pertinent jurisdictional facts are summarized below. Poole Truck is an interstate trucking concern that hauls freight interstate under the authority of the Interstate Commerce Commission (“ICC”). Poole Truck has intrastate authority to haul freight in only two states, Alabama and Mississippi. Alabama is Poole Truck’s state of incorporation and principal place of business. Poole Truck is not licensed to do business in New York and has no registered agent for service of process under the laws of New York. It has never employed a freight broker in this state. It has no office, warehouse, terminal, or other real property in this state and does not employ an agent to solicit business in New York. It has no New York telephone number, employs no persons in New York, maintains no New York bank account, and does not advertise in New York.

Poole Truck’s primary contact with New York is its operation of interstate routes, one way, into or out of New York. Poole Truck’s drivers pick up and deliver goods to and from New York on a daily basis. Between January 1, 1983, and September 30, 1984 (a random but illustrative time period), Poole Truck invoiced its customers a total of $9.6 million for over 300 million pounds of goods hauled into and out of New York. During that period, Eoole Truck’s New York activities never exceeded 1.5% of its total business activities as measured by miles traveled. Poole Truck has no authority to haul goods under contract from any New York carrier. The ICC has permitted Poole Truck to operate as a contract carrier for the James River Corporation, a Virginia corporation for whom Poole Truck does some hauling into and out of New York.

During the four years prior to the commencement of this action, Walter Poole made three trips to New York to solicit hauling. Robert E. Tate, Poole Truck’s former executive vice-president, made five such trips. Poole Truck made no other efforts to solicit business from New York shippers. Poole Truck maintains a mailing list that includes the addresses of New York shippers and shipping consultants. Those on the list receive Poole Truck’s current tariff quotations. Poole Truck does not otherwise solicit the business of those on the list. Poole Truck’s drivers and terminal operators frequently telephone those receiving freight in New York to arrange for someone to accept delivery. Poole Truck also has a WATS telephone line over which it can be contacted from any point in the country including New York.

Prior to December 1978, R. Keating Hagmann, an officer at United States Trust Company, a New York bank, solicited Poole Truck’s banking business. Poole Truck maintained a banking relationship with United States Trust from 1979 to 1982. During that time, the bank financed Poole Truck’s equipment purchases. Although, on one occasion, Hagmann visited Poole Truck in Alabama to solicit new business, no agent or employee of Poole Truck ever traveled to New York on banking business.

In a 1979 telephone conversation with Walter Poole, Hagmann stated that he knew of a broker who had a prospect to purchase Poole Truck. Hagmann then forwarded a letter to Walter Poole containing a proposed letter agreement between Poole Truck and New World. The August 23, 1979 letter agreement was prepared from that form and signed and executed by Walter Poole and Robert Tate in Alabama. Poole then mailed the letter to New World in New York for execution. Between August 1979 and August 1983, New World introduced Poole Truck to more than thirty potential purchasers. Typically, New World would telephone Poole Truck, inform it that it had located a potential purchaser, and request Poole Truck’s authorization to make an introduction. New World confirmed these “preclearance telephone calls” by letter. New World followed this procedure when it introduced Poole Truck to IU in June 1980.

In August 1981, Walter Poole traveled to New York and met for several hours with Randon Pavelic, an officer of New World, and members of a Dutch group whom New World had interested in purchasing Poole Truck. Walter Poole made another trip to New York in the same month to meet with another potential purchaser of Poole Truck, Mark Kaufman. New World did not introduce Poole Truck to Kaufman. Finally, Randon Pavelic asserts that he met with Walter Poole in New York City during a trip that Poole made to New Jersey in October 1982.

II. Discussion

A federal court sitting in a diversity action must apply the jurisdictional statute of the state in which it sits. Arrowsmith v. United Press International, 320 F.2d 219, 223 (2d Cir.1963). The plaintiff asserts that Sections 301 and 302 of the N.Y. Civ.Prac.Law, N.Y.Civ.Prac.Law §§ 301, 302 (McKinney 1972) (“CPLR”), provide a basis for the exercise of jurisdiction over Poole Truck. According to the plaintiff, Walter Poole is subject to the Court’s jurisdiction under Section 302. The Court finds that neither section supports the assertion of jurisdiction over either Poole Truck or Walter Poole.

A. Poole Truck

1. CPLR § 301: Doing Business.

CPLR § 301 vests the New York courts with the personal jurisdiction that they might have exercised prior to the section’s enactment. “A non-resident defendant ... subject[s] itself to the personal jurisdiction of a New York court [under CPLR § 301] ... if it does business in this State.” Pneuma-Flo Systems, Inc. v. Universal Machinery Corp., 454 F.Supp. 858, 862 (S.D.N.Y.1978). “The test, though not ‘precise’ is a ‘simple pragmatic one’: is the aggregate of the corporation’s activities in the State such that it may be said to be ‘present’ in the State ‘not occasionally or casually, but with a fair measure of permanence and continuity____?” Laufer v. Ostrow, 55 N.Y.2d 305, 449 N.Y.S.2d 456, 458, 434 N.E.2d 692 (1982) (citations omitted). Although “the mysteries of corporate presence are no longer determinative of issues of personal jurisdiction over corporations” under the due process clause, Scanapico v. Richmond, Fredericksburg & Potomac Railroad Co., 439 F.2d 17, 19 (2d Cir.1970) (en banc), “the classic ‘presence test’ is still followed in New York [under § 301], even though, constitutionally, the test may be unnecessarily restrictive of state jurisdictional power.” J. McLaughlin Practice Commentaries, N.Y.Civ.Prac.Law § 301, C301:2 (McKinney 1972); accord Laufer v. Ostrow, supra, 449 N.Y.S.2d at 458, 434 N.E.2d 692.

Poole Truck exhibits none of the classic indicia of doing business in New York. It is not licensed to conduct business in the state. It maintains no local office or bank accounts, possesses no New York property, and does not have a local telephone number. See Pneuma-Flo Systems, Inc. v. Universal Machinery Corp., supra, 454 F.Supp. at 861 (listing classic indicia); Masonite Corp. v. Hellenic Lines Ltd., 412 F.Supp. 434, 438 (S.D.N.Y.1976) (same). Poole Truck’s hauling of freight into, out of, and through New York does not suffice to warrant a finding that Poole Truck is present and doing business in this state. See Glacier Refrigeration Service, Inc. v. American Transportation, Inc., 467 F.Supp. 1104, 1106 (E.D.N.Y.1979) (Defendant who engaged in interstate delivery of small packages in New York and had neither a license to do business nor a place of business in New York was not “doing business” under CPLR § 301). Although such activity may be substantial, it is neither permanent nor continuous. Nor does this activity arise from a permanent locale. See Meunier v. Stebo, Inc., 38 A.D.2d 590, 328 N.Y.S.2d 608, 611 (2d Dep’t 1971) (continuity of action from some permanent locale or at least solicitation on a frequent and regular basis is the necessary minimum for a showing of doing business). Alabama and the other states where Poole Truck maintains terminal facilities are the locus of its business operations. New York is merely a recipient of its services, not a locus of operation.

Although Poole Truck has occasionally solicited business in New York, mere solicitation of business in New York is insufficient to support a finding of personal jurisdiction over a foreign corporation. Hutton v. Piepgras, 451 F.Supp. 205, 209 (S.D.N.Y.1978); Laufer v. Ostrow, supra, 449 N.Y.S.2d at 459. But solicitation plus additional business activities usually support a finding that a foreign corporation is doing business in New York. Aquascutum of London, Inc. v. S.S. American Champion, 426 F.2d 205, 211 (2d Cir.1970). The New York cases that examine when a foreign interstate carrier is doing business in New York adhere to this “solicitation-plus” rule. Id. A substantial degree of solicitation is needed to trigger the solicitation-plus rule. Id. Dunn v. Southern Charters, Inc., 506 F.Supp. 564, 567 (E.D.N.Y.1981); “ ‘Occasional sales forays into the district’ ” will not implicate it, Stark Carpet Corp. v. M-Geough Robinson, Inc., 481 F.Supp. 499, 505 (S.D.N.Y.1980) (quoting Sterling Television Presentations, Inc. v. Shintron Co., 454 F.Supp. 183 (S.D. N.Y.1978)), nor will visits to New York every few months to solicit freight forwarding business. Aquascutum of London, Inc. v. S.S. American Chief tan, supra, 426 F.2d at 211-12. In addition, courts have refused to find substantial solicitation when revenues derived from the solicitation comprise an insubstantial portion of a defendant’s total sales. See e.g., Dunn v. Southern Charters, Inc., supra, 506 F.Supp. at 567 (“It is doubtful that Seaward’s solicitation activities ... are substantial enough to bring it within the ‘solicitation-plus’ rule. In percentage terms Seaward has never derived more than 1V2% of its total sales revenue from its New York customers ...”) and cases cited therein.

Eight visits over four years by Walter Poole and Robert Tate to solicit hauling constitute Poole Truck’s total solicitation in New York. These contacts do not compare to the frequent visits that failed to impress the Second Circuit in Aquascutum of London, Inc. v. S.S. American Chieftan, supra, nor do they equal the presence of two employers in New York in Scanapico v. Richmond, Fredericksburg & Potomac Railroad Co., supra, 439 F.2d at 19—a case relied heavily upon by the plaintiff. Moreover, the plaintiff has not even asserted that either Poole or Tate successfully solicited any business during the eight trips noted above. Substantial solicitation imparts a degree of permanence to a defendant’s contact that enables a court to find the defendant ‘present’ in the state. Laufer v. Ostrow, supra, 449 N.Y.S.2d at 458, 434 N.E.2d 692. Poole Truck did not solicit enough business in New York to warrant consideration as present here or to bring it within the “solicitation-plus” rule. The Court does not have personal jurisdiction over Poole Truck under CPLR § 301.

2. CPLR § 302: Transaction of Business.

CPLR § 302(a)(1) vests the courts of the state of New York with “personal jurisdiction over any nondomieiliary ... who, in person or through an agent ... transacts any business within the state” as to any cause of action arising from such transaction. N.Y.Civ.Prac.Law § 302(a)(1) (McKinney 1972). Under this section, a court may acquire jurisdiction over a nonresident defendant who “purposefully avails itself of the privilege of conducting activities within [New York], thereby invoking the benefits and protections of its laws.” McKee Electric Co. v. Rauland-Borg Corp., 20 N.Y.2d 377, 283 N.Y.S.2d 34, 37-38, 229 N.E.2d 604 (1967) (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958)). The plaintiff asserts that CPLR § 302 applies because this action arises out of New World’s activities in New York on Poole Truck’s behalf and because it arises out of Poole Truck’s own visits to New York in connection with its contract with New World.

The plaintiff’s first contention is easily disposed of. When personal jurisdiction is asserted under CPLR § 302 by an agent against its principal, the former cannot, for jurisdictional purposes, attribute its activities in New York to the latter. Haar v. Armendoris Corp., 31 N.Y.2d 1040, 342 N.Y.S.2d 70, 294 N.E.2d 855 (1973); rev’g, 40 A.D.2d 769, 337 N.Y.S.2d 285 (1st Dep’t 1972). The plaintiff’s retention of New World, a New York corporation, as a finder, does not bear on the Court’s jurisdiction under CPLR § 302(a)(1).

The second assertion is only slightly more problematic. In a “transacting business” analysis, neither the number of contacts nor their duration is dispositive; rather, their nature and quality controls. Pneuma-Flo Systems, Inc. v. Universal Machinery Corp., supra, 454 F.Supp. at 866. Poole Truck’s contacts with New York in connection with the formation of the letter agreement are almost non-existent. In fact, its lack of contacts in this regard is striking. Poole Truck was solicited by New World in Alabama. There, the defendant executed its end of the agreement and forwarded it to New York. Although Poole Truck officers may have spoken with New World from Alabama, the plaintiff has not alleged that officers of Poole Truck initiated any of those conversations. Since the breach of contract action arises from the letter agreement, Poole Truck’s contacts with New York in negotiating that agreement might subject it to this Court’s jurisdiction. But there are no such contacts.

Walter Poole’s two post-contract visits to New York in connection with the letter agreement are not of the nature and quality necessary to support a finding that Poole Truck submitted itself to the court’s jurisdiction under CPLR § 302(a)(1). Neither of these visits had anything to do with this action. Once, Walter Poole met with a group of potential purchasers unconnected to this litigation. The second visit was apparently so unimportant that the plaintiff cannot recall its specifics. Had the meetings in New York concerned the purchase of IU, they might have been sufficient. However, the meetings were unrelated to that purchase. A fundamental requirement of CPLR § 302(a)(1) is that the cause of action asserted must arise out of the defendant’s activities in New York. Frummer v. Hilton Hotels International, Inc., 19 N.Y.2d 533, 281 N.Y.S.2d 41, 227 N.E.2d 851, cert. denied, 389 U.S. 923, 88 S.Ct. 241, 19 L.Ed.2d 266 (1967).

Having established that defendants transacted business in New York, plaintiffs need show ... that the cause of action is sufficiently related to the business transacted that it would not be unfair to deem it to arise out of the transacted business, and to subject the defendants to suit in New York.

Hoffritz For Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 59 (2d Cir.1985). This action bears little or no relation to the transactions in New York upon which the plaintiff relies. It would be unfair to subject the defendants to the Court’s jurisdiction based on Walter Poole’s two post-contract visits.

The only other post-contract communications between New World and Poole Truck were the “preclearance” telephone conversations and the follow-up correspondence from New World to Poole Truck. By answering the phone calls and receiving the correspondence, Poole Truck did not purposefully avail itself of the opportunity of doing business in the state from which they emanated. To hold otherwise would offend “traditional notions of fair play and substantial justice.” McGee v. International Life Insurance Co., 355 U.S. 220, 222, 78 S.Ct. 199, 201, 2 L.Ed.2d 223 (1957).

The cases cited by the plaintiff to support the assertion of jurisdiction are inapposite. All involve contacts far more substantial that the two post-contract visits alleged to have occurred in this case. The defendants in several of those cases had had significant pre-contract contacts with New York. In Hi-Fashion Wigs, Inc. v. Peter Hammond Advertising, Inc., 32 N.Y.2d 583, 347 N.Y.S.2d 47, 300 N.E.2d 421 (1973), the moving third-party defendant executed the contract in New York by physically delivering it there. See also Dulman v. Potomac Baking Co., 85 A.D.2d 676, 445 N.Y.S.2d 509 (2d Dep’t 1981) (“The trip to this State on or about October 1 significantly advanced the eventual making of this contract ... ”).

In every cited case in which no precontract meetings or negotiations took place in New York, there were significant other New York based activities. For example, in Wisehart, Friou & Koch v. Hoover, 473 F.Supp. 945 (S.D.N.Y.1979), the defendants and their agents held numerous meetings in New York (over a dozen in one year) with the plaintiff. Matters critical to the action were discussed at those meetings. Similarly, in Atlantic Metal Products, Inc. v. Blake Construction Co., 40 A. D.2d 966, 338 N.Y.S.2d 714 (1st Dep’t 1972), the defendant’s representatives attended post-contract conferences in New York and negotiated there to resolve the parties’ differences. No comparable contacts occurred here. The court cannot assert jurisdiction over Poole Truck on the basis of CPLR § 302(a)(1).

B. Walter Poole

The plaintiff does not claim that Walter Poole is doing business in New York. It asserts only that Poole transacted business in New York and that its second claim for relief arises out of that transaction thereby subjecting him to the Court’s jurisdiction under CPLR § 302(a)(1). Since Poole Truck’s contacts with New York do not subject it to this Court’s jurisdiction under that section, Walter Poole’s fewer contacts are perforce insufficient in that regard.

III. Conclusion

The defendants’ motions to dismiss the claims against them are granted.

The Clerk will enter judgment accordingly-

SO ORDERED.

      . The burden of establishing jurisdiction over a defendant, by a preponderance of the evidence, is upon the plaintiff. Until an evidentiary hearing is held, however, the plaintiff need make only a prima facie showing that jurisdiction exists, and this remains true notwithstanding a controverting presentation by the moving party. In the absence of an evidentiary hearing on the jurisdictional allegations, or a trial on the merits, all pleadings and affidavits are construed in the light most favorable to plaintiff, and where doubts exist, they are resolved in plaintiffs favor.

        Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir.1985).
      The Court has resolved all legitimate evidentiary disputes in favor of the non-moving party. Despite this advantage, the plaintiff has not made out its prima facie case. In these circumstances, the Court perceives no reason for holding an evidentiary hearing.

      . Appended to the plaintiff’s opposition papers is an affidavit from a licensed private investigator who states that a Poole Truck dispatcher informed him that Poole Truck could haul a load intrastate from New York City to Syracuse, New York. Prusan Affidavit. Poole Truck submitted the affidavit of Ronnie Kent, an employee in its customer service department, to counter this assertion. According to Kent, "On November 19, 1984, a woman called Poole [Truck] requesting a shipment from New York City to Syracuse ____ [Kent] explained to her that [Poole Truck] did not have authority to haul from New York City to Syracuse, but she didn’t seem to understand and seemed to be somewhat confused.” Kent Affidavit at 1.
      Although these contrasting affidavits raise an issue of fact as to what the Poole Truck employee said on that day, this factual dispute does not avail the plaintiff. Poole Truck does not have authority to haul loads intrastate in New York, and the plaintiff has presented no evidence indicating that Poole Truck ever actually exceeded its authority in this regard. See Affidavit of Walter Poole, Sept. 11, 1984 ¶ 16.

      . Poole Truck does maintain an agent for service of process in New York in compliance with Section 221(c) of the Interstate Commerce Act, 29 U.S.C. § 10330(b) (1982). That agent's function is to receive service of process in suits arising out of the defendant’s activities as an interstate carrier. The agent's presence in New York does not bear on suits unrelated to those activities. Davies v. Mohanes, 183 F.2d 671, 673 (2d Cir.1950).

      . Because Poole Truck operates interstate transportation routes through New York, it files New York state tax returns pursuant to N.Y.Tax Law §§ 183 and 184 (McKinney 1966). Section 183 imposes a tax on transportation companies based on their capital stock allocable to New York. The portion of capital stock allocable to New York is the ratio of the company’s gross assets employed in New York to total assets. Since Poole Truck has no assets in New York, it has paid the minimum tax of $75 in the preceding three years. Section 184 imposes an "additional” franchise tax on transportation companies based on gross earnings allocable to New York. Earnings for a motor carrier are allocated by multiplying total earnings by a fraction, the numerator of which is mileage covered in New York and the denominator of which is mileage within and without the state. According to New York franchise tax records, Poole Truck’s earnings allocable to New York have never exceeded 1.5%. Poole Truck also pays a combined highway and fuel use tax in New York.

      . The plaintiff claims that Poole Truck solicits business from those on this list. Reaves Affidavit, February 5, 1985 f 13. But according to Walter Poole,
      The persons and entities on the Poole Truck Line tariff computer printout constitute persons and entities to whom or which Poole Truck Line mails its tariffs. Poole Truck Line forwards tariffs to all persons or entities who request them. ICC regulations require that Poole furnish copies of appropriate tariffs when requested. The persons and entities [on the mailing list] ... are not necessarily shippers.
      Supplemental Affidavit of Walter Poole, February 21, 1985, If 2. The plaintiff has presented no evidence to contradict this explanation. Its conclusory allegation do not suffice to make out a prima facie case that Poole Truck solicits business from those on the list.

      . In an affidavit, Pavelic stated,
      I also met with defendant Poole in New York City and discussed New World’s activities under the Poole/New World Agreement on one other occasion during a trip defendant Poole made I believe in October of 1982 to meet with a prospective buyer in New Jersey (WesRay), which was also introduced to defendants through New World under the Poole/New World Agreement.
      Pavelic Affidavit ¶ 8. Walter Poole’s detailed recollection of his Wes-Ray trip contradicts Pavelic's assertions. According to Poole, he never met Pavelic or entered New York on that trip. Poole Affidavit ¶ 6. The Court has resolved this factual dispute in the plaintiffs favor.

      . The plaintiff claims that Poole Truck's banking relationship with U.S. Trust is a contact that supports the exercise of jurisdiction under CPLR § 301. That banking relationship ended in 1982. Since "the reference point for determining ‘presence’ in New York is the time of commencement of the action,” Northpark National Bank v. Bankers Trust Co., 572 F.Supp. 520, 522 n. 7 (S.D.N.Y.1983), Poole Truck’s past relationship with U.S. Trust does not bear on the jurisdictional issues before the Court.

      . The plaintiff did not attempt to impute its own conduct to Poole Truck for purposes of asserting jurisdiction under CPLR § 301. Nevertheless, it is worth noting that the same principle that bars such an imputation under CPLR § 302 has been held to apply to Section 301. PnetimaFlo Systems, Inc. v. Universal Machinery Corp., supra, 454 F.Supp. at 864.

      . CPLR § 302(a)(3) vests the New York courts with personal jurisdiction over those who commit "a tortious act without the state causing injury to person or property within the state.” N.Y.Civ.Prac.Law § 302(a)(3) (McKinney 1972). Had it been asserted, the Court would have rejected CPLR § 302(a)(3) as a basis of jurisdiction over Walter Poole. A commercial "injury,” within the meaning of that provision, occurs where the last critical event associated with the dispute took place. Lehigh Valley Industries, Inc. v. Birenbaum, 527 F.2d 87, 94 (2d Cir.1975). Here, the critical event is IU’s purchase of Poole Truck. It is that event which plaintiff claims gives rise to Poole Truck’s purported contractual obligation to pay a fee, and it is that obligation that Walter Poole purportedly induced Poole Truck to breach. The closing of the stock purchase, and, thus the "injury,” occurred at Poole Truck’s office in Alabama, not in New York. Affidavit of Walter Poole, Sept. 11, 1984, ¶ 13.

      . The plaintiff did not request that the case be transferred to Alabama in the event that the Court granted the defendants' motions to dismiss for lack of personal jurisdiction. Absent such a request, the Court will not transfer the case.


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

text:
    August Charles GIVENS, Petitioner, v. Vernon G. HOUSEWRIGHT, and the Attorney General of the State of Nevada, Respondents.
    No. CV-R-83-276-ECR.
    United States District Court, D. Nevada.
    June 20, 1985.

      Augusta C. Givens, in pro per.
    N. Patrick Flanagan, III, Asst. Fed. Public Defender, Reno, Nev., for petitioner.
    D. Brian McKay, Atty. Gen., David F. Sarnowski, Deputy Atty. Gen., Carson City, Nev., for respondents.
   ORDER

EDWARD C. REED, Jr., District Judge.

Pursuant to Order of the Ninth Circuit Court of Appeals, this Court has considered whether petitioner’s explanation of tardiness contained in his notice of appeal (from the order of this Court dismissing his petition for writ of habeas corpus), construed as a motion for extension of time, should be granted. An evidentiary hearing was held before this Court on April 22, 1985. Arguments of counsel and legal authority were also presented to the Court.

Petitioner was represented at the hearing by N. Patrick Flanagan, Assistant Federal Public Defender, and the respondents were represented by David F. Sarnowski, Deputy Attorney General of the State of Nevada.

On June 14, 1984, the Order of this Court was entered dismissing petitioner’s petition for writ of habeas corpus under Title 28 U.S.C. § 2254. The Court’s Order was signed on June 7, 1984, but not entered by the Clerk until June 14, 1984. The regular practice of the Clerk’s office of this Court is to mail orders of this sort to all parties on the day they are entered by the Clerk. On occasion, mailing by the Clerk is delayed a day.

The Order entered June 14, 1984, was not received at the mail room of the prison, Northern Nevada Correctional Center (NNCC), where petitioner is incarcerated, until June 26, 1984. There is a regular practice at the prison of logging in legal mail and that log reflects the receipt of the Order at the mail room on June 26, 1984. On June 27, 1984, the Order was physically delivered to petitioner at the prison “Control Room.” This was in accordance with the regular procedures of the prison which require that, prior to delivery of legal mail to an inmate, a receipt for delivery of the mail be signed by the inmate and that the item in question be opened in front of the inmate to see if it contains any contraband.

It was not until July 18, 1984, that the notice of appeal was received and filed by the Clerk of this Court. The notice of appeal calls attention to the fact that the Order appealed from was signed on June 7, 1984, but not entered by the Clerk until June 14 and alleges that it was received by the petitioner on June 27. The notice states as excuses for late filing that

(a) petitioner is a layman and has no knowledge pertaining to the law;
(b) petitioner had to find someone on the prison yard to prepare the notice;
(c) petitioner could not get necessary legal supplies from the law library at the Northern Nevada Correctional Center to prepare the notice.

Petitioner testified at the evidentiary hearing that he knew of the 30-day time limit but believed that it ran from the date the order was received, rather than from the date it was entered.

The original habeas petition was drafted by Farrell Clements, at that time an inmate law clerk at the law library of NNCC. By the time the order denying habeas was received by petitioner, Mr. Clements had been assigned to a different prison job and was no longer acting as a law clerk. He was unable to assist petitioner with the appeal. It was necessary without delay for petitioner to obtain help with the appeal from someone else. So Mr. Clements introduced petitioner to John C. Smith, an inmate on the yard at NNCC (not assigned as an inmate law clerk at the law library), and recommended Mr. Smith as a reliable person to help petitioner with the appeal. The Order of this Court entered June 14, 1984, was delivered by petitioner to Mr. Smith who agreed to assist petitioner. There is no evidence in this record that Mr. Smith had any legal training or experience, but apparently his work had gained the confidence of Mr. Clements. Petitioner believed Mr. Clements was a qualified inmate law clerk and, therefore, had reason to rely upon his recommendation of Mr. Smith.

After the time Mr. Smith was to begin to undertake the work to assist with the appeal, petitioner checked with him two times a week to see if he was taking the steps necessary to perfect the appeal. Mr. Smith not only drafted the form of notice of appeal and the wording of the excuse for late filing contained in it, but also personally provided the paper for the preparation of the notice and typed it as well.

After the notice of appeal was prepared by Mr. Smith, petitioner reviewed it and signed it. It was then mailed. One would have to conclude, based upon the testimony received, that the notice was promptly mailed after its preparation was completed.

When petitioner checked with Mr. Smith about his progress in preparing the notice of appeal, Mr. Smith told him that an extension of time might be needed due to what he described as a “foul-up” in the Clerk’s office. This comment might be taken to refer to the length of time between the time the Order was entered and was received at the prison. This comment by Mr. Smith and the fact that the notice itself contained an excuse for late filing, indicate that petitioner realized that the notice of appeal was being filed late.

According to the Order of the Circuit, this Court’s consideration of the reasons for the late filing is limited to those contained in the notice of appeal.

The preponderance of the evidence in this record would indicate doubt as to the qualifications of at least some of the inmate law clerks at the NNCC law library to effectively assist petitioner in preparing and filing the notice of appeal. This finding is based on the limited record in this ease. There do not appear to be any particular qualifications required by the prison authorities for assignment of law clerks. It is at least hoped that they are articulate, intelligent and can type. The only training which they receive is from the other inmate law clerks. There is no indication that petitioner would necessarily be able to tell which law clerks were qualified and which not. Petitioner has been fairly constantly a member of the Inmate Advisory Committee at NNCC which, as mentioned below, handles inmate grievances. In that capacity petitioner received information which was a basis for his conclusion that some of the law clerks in the library were unqualified. Since he had Mr. Clements’ recommendation, petitioner’s best bet was to seek help on the yard. In the circumstances, the Court concludes that, as alleged in the notice of appeal, petitioner did have to find someone (an inmate) on the prison yard to prepare the notice. Petitioner had reason to believe Mr. Smith would properly prepare and timely file the notice of appeal. If Mr. Smith failed to do that, petitioner could be guilty of no more than excusable neglect on account of his reliance on Mr. Smith and Mr. Smith’s failure to get the job done.

Petitioner alleges as a further excuse for late filing that he could not get the necessary legal supplies from the law library at NNCC to prepare the notice. This statement was made on the basis of petitioner’s previous knowledge of and experience with the library. He believed the library did not have the legal supplies which would be needed in connection with filing of the notice of appeal. Petitioner did not actually check with the library to see if it had the necessary supplies. On a fairly continuous basis, he has been a member of the Inmate Advisory Committee at NNCC. That committee is elected on an annual basis by the inmates and deals mostly with inmate grievances. As a member of the committee petitioner was in a position to know about the availability of the legal supplies at the law library. There had been grievances concerning the availability at the library of legal supplies for use of inmates.

However, it appears that Mr. Smith had the required legal supplies for the appeal and was willing as a favor to make them available for petitioner and did so. Such supplies have been provided by Mr. Smith’s wife for his use in assisting inmates. This has been done on a gratis basis without reimbursement from inmates, such as petitioner, or the prison authorities. Inability to obtain legal supplies from the law library (even though it appears they may not have been available had they been requested) is not a valid reason for the late filing of the notice of appeal, because the supplies were available through Mr. Smith.

It is the view of this Court that it can and should consider the conditions under which inmates, such as John C. Smith, perform legal work for other inmates. The restrictive circumstances under which such inmates assisting other inmates must work have to be acknowledged, as well as the limited nature of the legal knowledge, experience and ability of the inmates who seek to assist other inmates with their cases.

Rule 4(a)(1) of the Federal Rules of Appellate Procedure requires that the notice of appeal be filed with the Clerk of the District Court within 30 days after the date of entry of the order appealed from. Rule 4(a)(5) provides that upon a showing of excusable neglect or good cause the District Court may extend the time for filing the notice of appeal upon a motion filed not later than 30 days after expiration of the 30-day period within which notices of appeal are required to be filed. Here, the motion for extension of time was filed within the 30-day period after the original 30-day period had expired and, therefore, petitioner is entitled to an extension of time if he can make the appropriate showing, as delineated below.

The time periods in the appellate rules must be taken to anticipate that an appellant will receive the order to be appealed from fairly promptly after it is entered, so that the appellant will have the 30-day period, minus a reasonable period of time for mail delivery, within which to file the notice of appeal. It should be noted that the evidence in this case indicates that it takes up to four days for mail delivery between NNCC and the Clerk’s office in Reno (a distance of approximately 30 miles).

The notice of appeal was mailed by petitioner to the Clerk within 17 days after the order was received by petitioner. Further, petitioner in filing of his notice included an appropriate motion for an extension of time to file the notice of appeal.

At the time of the hearing the parties stipulated that the test which this Court should apply in deciding if the motion for extension of time to file the notice of appeal should be granted was “excusable neglect.” This appears to be the correct standard to be used where, as in this case, the motion for extension of time was filed after the expiration of the 30-day period provided for in Rule 4(a)(1). While the literal wording of the rule would indicate that the motion might be granted for either excusable neglect or good cause, the use of the words “good cause” was intended by the draftsmen of the rule to apply only to applications made before the thirty-day period provided in Rule '4(a)(1) had expired. The good cause language was added to the rule by a 1979 amendment because the excusable neglect standard never fit exactly the situation in which an appellant seeks an extension before the expiration of the initial appeal period. State of Oregon v. Champion International Corp., 680 F.2d 1300, 1301 (9th Cir.1982) (per curiam). See Fed.R.App.P. 4(a)(5) advisory committee note; Chipperfield v. Posi-Seal International, et al., 550 F.Supp. 1322, 1323 (D.R.1.1982).

As indicated above, what is here deemed to be the motion for extension of time was filed within 30 days after the expiration of the original 30-day appeal period. Hence, the motion itself was filed within the time period required by F.R.A.P. 4(a)(5).

The question at issue is whether the excuses given for late filing in the notice of appeal constitute excusable neglect. The limitations of time within which a notice of appeal must be filed are mandatory and jurisdictional. Rodgers v. Watt, 722 F.2d 456 (9th Cir., en banc, 1983). However, upon a showing of excusable neglect the time for the filing of the notice of appeal may be extended by the district court for a period of up to 30 days after expiration of the original 30-day appeal period, or 10 days from the date of entry of the order granting the motion, whichever is later.

What constitutes excusable neglect in the Ninth Circuit is not completely clear. The en banc decision in Rodgers seems, however, to be the best reference. It states a possibly more lenient test than has been announced in some other Ninth Circuit cases. The standard indicated in Rodgers is a lack of notice plus additional equitable factors such as a showing of due diligence to ascertain whether the order has been entered or sufficient reasons for lack of diligence.

In the case at bar there was a lack of notice for 13 days between the time when the Clerk entered the order and presumably mailed it to petitioner at the prison and its receipt by him. As discussed above, litigating from within the prison is to say the least difficult because of restrictions placed on prisoners. If it is intended that attorneys, who are in no way confined or restricted in their ability to consider, prepare and file notices of appeal, and who are educated in the law, unlike the inmates in our case are entitled to the 30-day period, certainly prisoners ought to be allowed at least an equal time period. In this case petitioner, an inmate, was not. Where the period of time an inmate has to file a notice of appeal is shortened to the extent it was here excusable neglect may be more easily inferred from the circumstances which occurred in this case.

Equitable factors favoring petitioner are also present in support of his motion. He mistakenly believed that he had 30 days after the order was received by him to file the notice.

Petitioner has only a high school education and, aside from the criminal proceedings which are the subject of his petition for writ of habeas corpus, he has had no contact with legal matters. As stated in the notice of appeal, he is a layman and has no knowledge pertaining to the law. He did the best he could and was at most guilty of excusable neglect. Also, as stated in the notice of appeal, it was necessary for petitioner to turn to another inmate in the yard to help him with the appeal. He sought such assistance with reasonable promptness.

Once the Order was delivered to John C. Smith, so that he might assist in preparation of the notice of appeal, petitioner pressed Mr. Smith to complete the work. Petitioner testified that he urgently contacted Mr. Smith twice a week about his progress in perfecting the appeal. These efforts on the part of petitioner demonstrate diligence.

While the test of excusable neglect of Rodgers is somewhat difficult to apply to this case, nonetheless the test is met.

The case of Oregon v. Champion, supra states an earlier panel’s definition of excusable neglect, limiting excusable neglect to extraordinary cases where injustice would otherwise result. The Champion test seems to be somewhat more difficult to meet than the test of Rodgers. It rules out mere mistake, inadvertence, oversight or neglect. The “extraordinary cases” test is not very precise but we should attempt to see whether that test is met in the ease at bar. Here the unexplained period of approximately 13 days between the time the Clerk entered the order and its receipt by petitioner does seem to be extraordinary, notwithstanding perhaps delays experienced generally in mail deliveries. The evidence in this case indicates that mail was usually delivered within the 4-day period mentioned above. The 13-day period can be described as extraordinary. It also appears that an injustice would result if the motion is not granted, not in the sense that this Court believes its previous order dismissing the habeas petition is incorrect (which it does not), but rather in the sense that petitioner would be deprived of the opportunity to have the case reviewed by the appellate court. In its Certificate of Probable Cause for Appeal, this Court has previously found that the appeal does present substantial legal questions entitling review by the appellate court. The facts at bar do meet the excusable neglect test of Champion.

Whether the test of Champion is still viable in view of Rodgers is a question. At least one Ninth Circuit panel subsequent to Rodgers cited Champion and the Champion test for excusable neglect rather than the test of Rodgers. See, e.g. Islamic Republic of Iran v. Boeing Co., 739 F.2d 464 (9th Cir.1984) (excusable neglect is sustainable only if there are extraordinary circumstances that prevent timely filing and denying the appeal would result in injustice; in Islamic Republic the fact that the only attorney able to represent appellant and that attorney’s secretary both were seriously ill was held to constitute excusable neglect). On the other hand, the Arizona Supreme Court has, at least in spirit, followed the Rodgers test in Davis v. Davis, 143 Ariz. 54, 691 P.2d 1082 (1984) (en banc).

The foregoing shall constitute this Court’s findings of fact and conclusions of law.

IT IS, THEREFORE, HEREBY ORDERED that the motion for extension of time to file the notice of appeal, as contained in the notice of appeal previously filed, is GRANTED.