author: JOSEPH H. YOUNG, District Judge.

text:
    NUEVA ENGINEERING, INC. v. ACCURATE ELECTRONICS, INC.
    Civ. No. Y-85-3939.
    United States District Court, D. Maryland.
    Feb. 25, 1986.
    Cornelius J. Carmody, Baltimore, Md., for plaintiff.
    E. Nicholson Gault, Jr., Baltimore, Md., for defendant.
   MEMORANDUM

JOSEPH H. YOUNG, District Judge.

Plaintiff Nueva Engineering, Inc., (“Nueva”), a Maryland corporation, brought this action in the Federal District Court for the District of Maryland against defendant Accurate Electronics, Inc., (“Accurate”), a Connecticut corporation, alleging that Accurate failed to meet its contractual obligation to pay $113,018.97 for printed electronic circuit boards that it received from Nueva. Accurate moved to dismiss for lack of personal jurisdiction. The Court held an evidentiary hearing on the motion January 27, and finds that it has jurisdiction over the defendant.

Defendant was served at its principal place of business in Bridgeport, Connecticut, pursuant to Fed.R.Civ.P. 4(e) and the Maryland long-arm statute, Md.Code, Courts and Judicial Proceedings, § 6-103. Maryland’s long-arm statute extends jurisdiction over nonresident defendants to the limits permitted by due process under the Federal Constitution. Curtis v. State, 284 Md. 132, 395 A.2d 464 (1978); Geelhoed v. Jensen, 277 Md. 220, 352 A.2d 818 (1976). Therefore the only issue before the Court is whether jurisdiction over the defendant in this case would violate the due process clause. Geelhoed v. Jensen, 277 Md. at 226, 352 A.2d 818. Piracci v. New York City Employees Retirement System, 321 F.Supp. 1067, 1070 (D.Md.1971).

This is a case where the Court is asserting “specific jurisdiction,” because the cause of action arises out of the defendant’s contacts with the forum state. Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). “ ‘Specific’ jurisdiction contrasts with ‘general’ jurisdiction, pursuant to which ‘a State exercises personal jurisdiction over a defendant in a suit not arising out of or related to the defendant’s contacts with the forum.’ ” Burger King Corp. v. Rudzewicz, — U.S. -, - n. 15, 105 S.Ct. 2174, 2182 n. 15, 85 L.Ed.2d 528 (1985), quoting Helicópteros, supra, 466 U.S. at 414 n. 9, 104 S.Ct. at 1872 n. 9.

The basic due process test for specific jurisdiction remains that set out by the Supreme Court in International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945):

due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.”

That seemingly flexible standard is subject to two restrictive glosses. The foreseeability of causing injury in another state through a course of action does not establish jurisdiction — “the foreseeability that is critical to due process analysis ... is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980). And

The unilateral actitity of those who claim some relationship with a nonresident defendant cannot satisfy the requirements of contact with the forum State. The application of that rule will vary with the quality and nature of the defendant’s activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.

Burger King Corp. v. Rudzewicz, — U.S. -, -, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985), quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958).

The question of whether a nonresident corporate defendant’s contractual dealings with a resident plaintiff are purposeful enough so that the defendant should foresee being haled into the plaintiff’s forum “has deeply divided the federal and state courts.” Lakeside Bridge & Steel Co. v. Mountain State Construction Co., Inc., 445 U.S. 907, 909, 100 S.Ct. 1087, 1089, 63 L.Ed.2d 325 (1980) (White, J., dissenting from denial of certiorari). It is easy to see why. Entering into a contract is always “purposeful” in some way, and commercial transactions with a forum plaintiff always implicate the benefits and protections of the forum’s laws to some extent. On the other hand, a per se rule that contracts create jurisdiction might engender serious inequities in some cases.

So the courts have considered various factors in the contract situation, including whether the parties contemplated that the work would be performed, where negotiations were conducted, where payment was made, etc. The strongest factor that seems to have emerged, however, is a determination of whether the defendant initiated the business relationship in some way. See, e.g., Bond Leather Co., Inc. v. Q.T. Shoe Mfg. Co., Inc., 764 F.2d 928 (1st Cir.1985); Patterson v. Dietze, Inc., 764 F.2d 1145 (5th Cir.1985); Madison Consulting Group v. State of South Carolina, 752 F.2d 1193 (7th Cir.1985); Reiman v. First Union Real Estate Equity and Mortgage Investments, 614 F.Supp. 255 (D.D.C.1985).

The Fourth Circuit has generally found jurisdiction in contract cases. See, e.g., August v. HBA Life Insurance Co., 734 F.2d 168 (4th Cir.1984); Columbia Briargate Co. v. First National Bank in Dallas, 713 F.2d 1052 (4th Cir.1983), cert. denied sub nom., Pearson v. Columbia Briargate Co., 465 U.S. 1007, 104 S.Ct. 1001, 79, L.Ed.2d 233 (1984); Vishay Intertechnology, Inc. v. Delta International Corp., 696 F.2d 1062 (4th Cir.1982); Du-Al Corp. v. Rudolph Beaver, Inc., 540 F.2d 1230 (4th Cir.1976); Ajax Realty Corp. v. J.F. Zook, Inc., 493 F.2d 818 (4th Cir.1972), cert. denied sub nom., Durell Products, Inc. v. Ajax Realty Corp., 411 U.S. 966, 93 S.Ct. 2148, 36 L.Ed.2d 687 (1973). The Fourth Circuit also seems to have adopted the determination of whether the defendant initiated the business relationship in some way as a dispositive factor in August v. HBA Life Insurance Co., supra, and Vishay Intertechnology, Inc. v. Delta International Corp., supra, 696 F.2d at 1068 n. 4.

Justice Brennan’s opinion for the majority in Burger King Corp. v. Rudzewicz, supra, the most recent Supreme Court pronouncement on jurisdiction, favored the Fourth Circuit’s approach in contract cases. Although Justice Brennan reiterated the requirement of some purposeful action by the defendant as a prerequisite to jurisdiction, — U.S. at -, 105 S.Ct. at 2183, and held that the existence of a contract alone was not enough to establish minimum contacts, — U.S. at -, 105 S.Ct. at 2184, the opinion noted that it only took one purposeful action by the defendant to establish jurisdiction under certain circumstances, and that the actual physical presence of the defendant in the forum was not required. Justice Brennan also wrote:

courts in “appropriate cases[s]” may evaluate “the burden on the defendant,” the “forum State’s interest in adjudicating the dispute,” “the plaintiff’s interest in obtaining convenient and effective relief,” “the interstate judicial system’s interest in obtaining the most efficient resolution of controversies," and the “shared interest of the several States in furthering fundamental social policies.” World-Wide Volkswagen Corp. v. Woodson, supra [444 U.S. 286], at 292 [100 S.Ct. 559 at 564, 62 L.Ed.2d 490 (1980)]. These considerations sometimes serve to establish the reasonableness of jurisdiction upon a lesser showing of minimum contacts than would otherwise be required.

— U.S. at - - -, 105 S.Ct. at 2184 (citations omitted, emphasis added).

At the evidentiary hearing on the motion to dismiss there was very little conflict in the testimony, which established that defendant Accurate was an assembly manufacturer of electronic products with a need for printed circuit boards manufactured to its specifications. Accurate’s principal place of business was in Bridgeport, Connecticut, and Accurate had no other contacts with Maryland besides its relationship with Nueva. In 1982, Robert Tarantino, a manufacturer’s sales representative for Nueva, initiated the relationship between the parties by soliciting orders from Accurate at Accurate’s place of business in Bridgeport. Accurate began to order printed circuit boards from Nueva, ordering over $100,000 worth in 1982 and approximately $175,000 worth, or more, in 1983. The volume of these orders made Accurate a crucial customer for Nueva.

In early 1984, the President of Accurate, Sherwood P. Judson, became concerned over the quality of circuit boards he was receiving from Nueva. When he expressed those concerns to Nueva, Nueva sent a quality control representative to Connecticut to speak with Judson. Judson had plans to expand his business, and he had concerns about the leadership of Nueva and Nueva’s ability to expand with him. Nueva invited Judson to Baltimore to view the site of their new manufacturing plant, to meet the President of Nueva, James P. Piedrafite, and its Vice-President for Sales, Ms. Francis T. Fox. Judson visited Baltimore for a day in February or March, 1984, and toured Nueva’s new manufacturing site. Judson discussed his quality control concerns and his desires to have Nueva expand to fill a projected increase in Accurate’s orders. Nueva representatives explained their plans for expansion and assured Judson that they could handle his orders.

Judson made two more visits to Maryland in 1984. He spent a weekend at Piedrafite’s house on Gibson Island with Piedrafite and Ms. Fox during the summer. The weekend was essentially a social visit with an underlying business purpose, and business was discussed. In October, Judson drove to Maryland for the Grand Opening of Nueva’s new plant in Baltimore. Judson stayed a few hours and toured the completed facility.

Judson did not place any orders on his visits to Maryland — orders were placed through Accurate’s purchasing department. The business relationship between the parties did not change in any noticeable way after Judson’s visits. The complaint alleged that the contract between the parties called for delivery of the circuit boards F.O.B. Nueva’s plant in Baltimore. Defendant Accurate, the moving party in the proceedings, did not offer any evidence to counter that allegation. There was clear and convincing testimony from Ms. Fox, Vice-President of Sales for Nueva, that the relationship between circuit board manufacturers and the assembly manufacturers they supply is a heavily interdependent one, which she likened to a “marriage.”

From these facts, the Court finds that Accurate engaged in purposeful conduct that should have led it to foresee that it could be haled into the courts of Maryland. Accurate took delivery and possession of the circuit boards F.O.B. Nueva’s Maryland plant, and the contract clearly contemplated that Nueva would perform in Maryland. Du-Al Corp. v. Rudolph Beaver, Inc., 540 F.2d 1230, 1233 (4th Cir.1976). Although Accurate did not initiate its business relationship with Nueva, Accurate’s President, Sherwood P. Judson, took steps preparatory to initiating a new phase of that relationship. His first visit to Baltimore was purposefully designed to determine whether Nueva could meet his plans for expansion.

Judson’s initiation of a contemplated change in the business relationship between Nueva and Accurate was certainly greater than the solicitation which the Fourth Circuit found dispositive in August v. HBA Life Insurance Co., 734 F.2d 168 (4th Cir.1984). In that case, the plaintiffs had bought a medical insurance policy from an Arizona corporation while Arizona residents. The plaintiffs moved to Virginia and continued to pay the premiums. They filed a claim that the Arizona corporation disallowed. The Arizona corporation then mailed a request to plaintiffs that they sign a rider which would reduce the coverage of the policy to preclude all claims like the one the plaintiffs had previously filed. The rider would have changed the actual terms of the policy. There was no evidence that the defendant had any other contacts with Virginia. The Fourth Circuit held that the request of the plaintiffs to sign the rider constituted a “solicitation” that was sufficient to subject the defendant to the jurisdiction of the Virginia courts.

There was also convincing evidence that the relationship between the parties was a special, heavily interdependent one. In Burger King, the Supreme Court held that the special, interdependent relationship between an individual franchise and the national Burger King organization gave rise to jurisdiction in the national organization’s forum. See also Dynamic Concepts, Inc. v. Modem Chain Co., Inc., 610 F.Supp. 285 (D.R.I.1985) (jurisdiction over non-resident defendant proper where defendant had entered into special relationship with plaintiff to have plaintiff exclusively represent defendant’s line of gold jewelry chain products to the catalog showroom industry).

Finally, consideration of the additional factors listed in the Burger King opinion, — U.S. at -, 105 S.Ct. at 2183, also supports the assertion of jurisdiction in this case. Accurate did not introduce a scintilla of evidence that defending this suit in Maryland will impose a special hardship upon it. The Court takes judicial notice of the fact that Connecticut and Maryland are not very far apart in the modern world. Maryland has a significant interest in providing its citizens with “convenient and effective relief” when out-of-state debtors do not pay their debts. And the interstate judicial system’s interest in obtaining the most efficient resolution of controversies militates against requiring plaintiff to file its suit all over again in Connecticut, or having this Court transfer venue, especially when defendant has made no showing of hardship.

Accordingly, defendant’s motion to dismiss for lack of personal jurisdiction must be Denied.


source: Caselaw Access Project

author: ALLEN SHARP, Chief Judge.

license: Public Domain

text:
    Eugene W. DeROCHEMONT, Plaintiff, v. COMMISSIONER—INTERNAL REVENUE SERVICE, and IRS Special Agents (Unknown), Defendants.
    No. S 84-26.
    United States District Court, N.D. Indiana, South Bend Division.
    Feb. 26, 1986.

      Eugene W. DeRochemont, Springfield, Mo., for plaintiff.
    David H. Kreider, Asst. U.S. Atty., South Bend, Ind., Peter Sklarew, U.S. Dept, of Justice, Washington, D.C., for defendants.
   MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

This case is before the Court on the defendant’s, The Commissioner of Internal Revenue Service, Motion for Summary Judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. Originally the defendant filed a motion to dismiss the plaintiff’s, Mr. Eugene W. DeRochement, complaint. Subsequently, the defendant filed two affidavits, and a Memorandum and Order entered by Judge Rambo from the Middle District of Pennsylvania, in their supplemental materials on May 9, 1985. On May 28, 1985, the Court converted the Motion to Dismiss to a Motion for Summary Judgment, and, pursuant to Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982), ordered the plaintiff, a pro se litigant, to respond by June 28, 1985. The plaintiff filed an affidavit on June 14, 1985. In addition, the plaintiff filed a Motion for Default Judgment, a memorandum in support of the motion for default judgment, and a motion to permit joinder of parties, on November 22, 1985, December 4, 1985 and February 12, 1986, respectively. The jurisdiction of this court is predicated on 28 U.S.C. § 1331.

BACKGROUND

The plaintiff filed this case subsequent to pleading guilty to six counts of claiming false income tax refunds in violation of Title 18, Section 287, and four counts of mail fraud. The plaintiff’s claims arise from acts which occurred during the pend-ency of the Grand Jury’s investigation of the plaintiff’s activities.

The plaintiff was an accountant and worked for several businesses in Pennsylvania. In addition, the plaintiff prepared tax returns for a woman named Brenda Wilson (Wilson). The defendants began an investigation of the plaintiff and Wilson in response to some “highly suspect 1983 Forms 1040 in the names of EUGENE De-ROCHEMENT and BRENDA WILSON.” The plaintiff, apparently fabricated income tax returns for himself and Wilson for the years 1979 through 1982. On May 28,1983 the plaintiff and Wilson married. The plaintiff and Wilson were located in Arizona on May 25, 1983. At that time they were “confronted” with the allegations of the fraudulent income tax returns, and were served with Grand Jury subpoenas requiring them to appear on June 15, 1983. Neither the plaintiff nor Wilson appeared on June 15, 1983, and on June 16, 1983 Judge Sylvia Rambo of the Federal District Court for the Middle District of Pennsylvania, issued a bench warrant for the arrest of the plaintiff and Wilson. On or about July 20, 1983, the plaintiff and Wilson transferred several boxes, which contained among other things the records of the plaintiffs businesses, the accounting records for the plaintiff’s clients, and the tax returns of Wilson which the plaintiff prepared for her, from Pennsylvania to Plymouth, Indiana. These boxes were then stored in the basement of a Furniture Store in Plymouth, Indiana, a business owned, operated and controlled by Wilson’s brother. The arrest warrants were executed on July 21, 1983 and July 22, 1983, and plaintiff and Wilson were subsequently found guilty of contempt.

In September, 1983 Wilson decided to cooperate with the Grand Jury investigation and she was “debriefed” by the defendant’s agents. This Court will not relate the sordid allegations which were revealed during the debriefing sessions. However, it is pertinent that Wilson disclosed that she had custody of the accounting records of the plaintiff. Wilson told the defendant’s agents that the records were stored in cardboard boxes in the basement of a furniture store, in Plymouth, Indiana, owned and operated by her brother. Wilson was apparently unaware of the contents of all the boxes. She also stated, that until May 25, 1983, she had been unaware that the tax returns which the plaintiff had prepared for her had been fraudulent. As a result of Wilson’s fear of reprisals from the plaintiff, she requested that the defendant’s agents acquire a Grand Jury subpoena for the plaintiff’s records.

A Grand Jury subpoena was issued, and the defendant’s agents served the subpoena on Wilson while she was at her brother’s store. The subpoena called for the custodian of “all business, tax and accounting records of Eugene W. DeRochemont and any company or concern owned or operated by Eugene W. DeRochemont including but not limited to accounting work papers, client files, federal, state and/or local tax returns, employment compensation records, bank records and cancelled checks, disbursement journals, and ledgers.” Wilson then led the defendant’s agents to the basement of the store where she and the plaintiff had placed the boxes. She “pointed out several cardboard boxes containing records” which the plaintiff “had placed in her custody.” With Wilson’s consent the defendant’s agents reviewed the records contained in the boxes, “setting aside certain records which [the agents] stated did not fall within the scope of the subpoena ...” Following this review Wilson consented to the defendant’s agent taking immediate possession of the records. Subsequently, the defendant’s agents informed Wilson that the records were to be shipped to the IRS offices in Harrisburg, Pennsylvania.

DISCUSSION

The plaintiff is proceeding pro se. Pro se pleadings are to be liberally construed. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), reh’g denied, 405 U.S. 948, 92 S.Ct. 963, 30 L.Ed.2d 819 (1972). The role of the trial court is to ensure that the claims of pro se litigants are given “fair and meaningful consideration.” Matzker v. Herr, 748 F.2d 1142, 1146 (7th Cir.1984); Caruth v. Pinkney, 683 F.2d 1044, 1050 (7th Cir.1982), cert. denied, 459 U.S. 1214, 103 S.Ct 1212, 75 L.Ed.2d 451 (1983). Furthermore, pro se motions and complaints are held to less stringent pleading requirements.

The plaintiff filed a complaint alleging that the search and seizure violated the Fourth Amendment of the Constitution of the United States. In addition, the complaint and subsequently filed materials, apparently allege a violation of the First and Fifth Amendments of the Constitution of the United States, and the Civil Rights Act, 42 U.S.C. § 1983. All of these claims are dependent on a finding that the records, which were taken by the defendant's agents pursuant to the Grand Jury subpoena, were acquired through a search and seizure which violated the Fourth Amendment of the Constitution of the United States.

To prevail, the party seeking summary judgment has the burden of establishing the lack of a genuine issue of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-159, 90 S.Ct. 1598, 1608-1609, 26 L.Ed.2d 142 (1970); Royal Backes v. The Valspar Corporation, 783 F.2d 77 (7th Cir.1986); Landgrebe Motor Transport, Inc. v. District 72, International Association of Machinists and Aerospace Workers, 763 F.2d 241, 243-244 (7th Cir.1985); Janowiak v. Corporate City of South Bend, 750 F.2d 557, 559 (7th Cir.1984). A material question of fact is a question which will be outcome-determinative of an issue in that case. Big O Tire Dealers, Inc. v. Big O Warehouse, 741 F.2d 160, 163 (7th Cir.1984); Egger v. Phillips, 710 F.2d 292, 296 (7th Cir.1983) (en banc), cert. denied, 464 U.S. 918, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983). Any reasonable inferences to be drawn from the facts presented must be viewed in a light most favorable to the non-moving party. Korf v. Ball State University, 726 F.2d 1222, 1226 (7th Cir.1984). In addition, conclusory statements made in affidavits opposing a motion for summary judgment are not sufficient to raise a genuine issue of material fact. First Commodity Traders v. Heinhold Commodities, 766 F.2d 1007, 1011 (7th Cir.1985), citing, Hall v. Printing and Graphic Arts Union, 696 F.2d 494, 500 (7th Cir.1982).

In general there is a presumption that searches conducted without valid search warrants violate the Fourth Amendment of the Constitution of the United States. Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 2412, 57 L.Ed.2d 290 (1978); United States v. Mazzone, 782 F.2d 757 (7th Cir.1986). There are a few limited exceptions to the presumption. The exception involving third-party consent is pertinent to this case. See, Davis v. United States, 328 U.S. 582, 593-594, 66 S.Ct. 1256, 1261-1262, 90 L.Ed.2d 1453 (1946), reh’g denied, 329 U.S. 824, 67 S.Ct. 107, 91 L.Ed. 700 (1946). In addition, the issue of consent is a question of fact to be determined by the trial judge. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States v. Rojas, 783 F.2d 105 (7th Cir.1986).

There are three legal bases for granting the defendant’s motion. Each legal reason could be the sole basis for the decision in this case. However, the Court will address all three to ensure that the plaintiff understands the multiple reasons which prohibit any additional or collateral pursuit of his claims based on an alleged illegal search and seizure.

The doctrine of collateral estoppel is the first basis. After the plaintiff entered a guilty plea and was sentenced in criminal proceedings in a district court in the Middle District of Pennsylvania he “filed a motion under 28 U.S.C. § 2255 to vacate his sentences ... claim that his plea of guilty ... was rendered involuntary by reason of an illegal search of his property ...” Quoted from, DeRochemont v. United States, Criminal Nos. 83-163, 83-179, 83-180 and 83-181 (M.D.Pa. February 8, 1985), aff'd mem., 772 F.2d 897 (3d Cir.1985). The plaintiff raises the same issue of illegal search and seizure in this case.

“A party may move for summary judgment on the ground ... that [an] earlier litigation actually determined an issue crucial to both actions ... ” C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2735 (1973). The plaintiff argues that the doctrine of collateral estoppel is not applicable to a case resolved by entering a guilty plea. The plaintiff is correct the his guilty plea was not a decision on the merits and consequently cannot result in collateral estoppel on the illegal search and seizure issue. However, the pertinent litigation to the use of collateral estoppel in this case is the plaintiff’s Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2255. The decision on the plaintiff’s writ included a decision on the merits of the alleged illegal search and seizure. The Honorable Sylvia Rambo, District Judge for the Middle District of Pennsylvania, held that “[t]he petitioner’s claims of illegal seizure and subsequent coercion are frivolous and totally lacking in foundation and, in any event were waived by the petitioner.”

Judge Rambo’s memorandum apparently concentrates on a narrow portion of the property stored, in the boxes, in the basement of Wilson’s brother’s store. Judge Rambo’s memorandum specifically addressed the photographs of semi-clad or nude women which were among the articles stored in the boxes. Although, Judge Rambo’s Order may have a broader scope than the photographs, this Court is unable to discern the extent of that order. Therefore, this Court finds that Judge Rambo’s decision collaterally estops the plaintiff from raising any claims based on an illegal search or seizure of any photographs of semi-clad or nude women.

The second basis for summary judgment is the plaintiff’s expectation of privacy. Justice Harlan’s concurring opinion in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), described a twofold conjunctive test for the expectation of privacy. Justice Harlan wrote:

“My understanding of the rules that has merged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’ ”

Id. at 361, 88 S.Ct. at 516.

The plaintiff proclaims his subjective expectation of privacy. However, the totality of the circumstances are not consistent with an expectation of privacy. The boxes were placed in the basement of a furniture store. The plaintiff does not allege to have had the ability or the right to control access to the premises. The owner or operator of the store could have permitted a search of the premises including the boxes in the basement without consulting the plaintiff. See, United States v. Matlock, 415 U.S. 164, 171 n. 7, 94 S.Ct. 988, 993 n. 7, 39 L.Ed.2d 242 (1974); United States v. Bilanzich, 771 F.2d 292, 297 (7th Cir.1985); Marvin v. United States, 732 F.2d 669 (8th Cir.1984); Jones v. Berry, 722 F.2d 443 (9th Cir.1983), cert. denied, 466 U.S. 971, 104 S.Ct. 2343, 80 L.Ed.2d 817 (1984); United States v. Buettner-Janusch, 646 F.2d 759, 764 (2d Cir.1981), cert. denied, 454 U.S. 830, 102 S.Ct. 126, 70 L.Ed.2d 107 (1981); United States v. Diggs, 544 F.2d 116, 120-122 (3d Cir.1976) (en banc); United States v. Robinson, 479 F.2d 300, 302 (7th Cir.1973). Society does not recognize an expectation of privacy under the totality of circumstances in this case.

Assuming, for the sake of discussion, that there is a reasonable expectation of privacy in this case, the search would not violate the Fourth Amendment of the Constitution of the United States if it was based on the consent of a third party. Davis v. United States, supra. The third party must have had common authority with the plaintiff or a sufficient relationship to the premises or effects to be inspected. See, Matlock, supra, at 171, 94 S.Ct. at 993. Buettner-Janusch, supra, at 764; Marvin, supra, at 675. The plaintiff does not dispute that the records were placed in the basement of Wilson’s brother’s store; that the records included Wilson’s tax returns which the plaintiff prepared; that Wilson assisted in transporting and storing the boxes; and that Wilson and the plaintiff were married at all times pertinent to the issue of consent. Furthermore, the plaintiff does not allege that he had the ability or right to control access to the basement of Wilson’s brother’s store. The plaintiff had a collateral relationship to the premises and Wilson had a familial relationship to the premises. Wilson stated in her affidavit that the records were placed in her custody. In addition, Wilson had a relationship to the effects to be inspected because her tax returns which were prepared by the plaintiff were among the records in the boxes. Therefore, the test expressed in Matlock has been met, and Wilson’s third party consent is valid to permit a search without a warrant. The plaintiff challenges the validity of Wilson’s consent on two grounds. First, the plaintiff alleges that Wilson lacked a specific grant from the plaintiff of custody of the records. However, “[tjhere is no requirement that express permission from [plaintiff] to [Wilson] to allow the officers to search be shown; it was sufficient to show her authority to consent in her own right, by reason of her relationship to the premises.” Matlock, supra, 167, 94 S.Ct. at 991. Furthermore, the “authority which justifies the third party consent does not rest upon the law of property, with its attendant historical and legal refinements.” Id.; Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Bilanzich, supra, at 297. Wilson’s affidavit, the place the boxes were stored, Wilson’s relationship to the place where the boxes were stored, and Judge Rambo’s decision all demonstrate Wilson’s authority to consent in her own right.

The second challenge to the validity of the search is based on the alleged coercion of Wilson by the defendant’s agents. This allegation is contrary to Wilson’s affidavit, Agent Strunk’s affidavit, and the plaintiff’s own statements, on the record, in open court before Judge Rambo. Other than conclusory statements in the plaintiff’s affidavit opposing the motion for summary judgment there is no evidence that Wilson was coerced in any way. Therefore, the challenge based on coercion is not supported in fact, and does not preclude summary judgment. See, First Commodity Traders v. Heinhold Commodities, 766 F.2d at 1011.

CONCLUSION

The plaintiff’s complaint and supplemental materials allege claims based on the First, Fourth and Fifth Amendment of the Constitution of the United States of America and the Civil Rights Act. All of these claims fail because the search and subsequent taking of the plaintiff’s records, pursuant to a Grand Jury subpoena, were accomplished after proper service of the subpoena and receipt of voluntary consent from a third party who had common authority or a sufficient relationship to the premises or effects to be inspected.

The Court finds, as did Judge Rambo, that the plaintiff’s claims of illegal search and seizure are patently frivolous and totally lacking in foundation. Any, further, collateral pursuit of claims based on an alleged illegal search and seizure of the plaintiff’s records which were stored in the basement of Wilson’s brother’s store will violate Rule 11 of the Federal Rules of Civil Procedure.

According, and for all the above reasons, it is the ORDER of the Court that the defendant’s, The Commissioner of the Internal Revenue Service, Motion for Summary Judgment be, and is hereby, GRANTED. It is FURTHER ORDERED that the plaintiff’s, Eugene W. DeRochemont, Motion for Default Judgment be, and is hereby, DENIED as moot It is FURTHER ORDERED that the plaintiff’s, Eugene W. DeRochemont, Motion Requesting Joinder of Parties be, and is hereby, DENIED as moot. It is FURTHER ORDERED that costs be assessed to the plaintiff.

      . To avoid confusion Brenda Wilson DeRochemont will be referred to as Wilson throughout the Court’s discussion.


author: CAFFREY, Chief Judge.

text:
    Warren C. DOWNIE, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    Civ. A. No. 83-1224-C.
    United States District Court, D. Massachusetts.
    Feb. 27, 1986.

      Edwin L. Wallace, Latti Associates, Boston, Mass., for plaintiff.
    Asst. U.S. Atty. Andrew S. Hogeland, for defendant.
   MEMORANDUM

CAFFREY, Chief Judge.

This is a civil action in which the plaintiff, Warren C. Downie, Jr., pursuant to 42 U.S.C. § 405(g), seeks an order reversing a final decision of the Secretary of Health and Human Services (“the Secretary”) which denied his claim for disability insurance benefits. The matter is before this Court on the plaintiff’s motion for summary judgment and the defendant’s motion for an order affirming the Secretary’s decision.

The record shows that the plaintiff filed an application for disability insurance benefits on September 25, 1981, alleging an inability to work since 1971. The application was denied both initially and on reconsideration by the Sociál Security Administration (“SSA”). The plaintiff then appeared with his representative and two witnesses at a hearing before an administrative law judge (“ALJ”), who considered the case de novo. The ALJ denied the plaintiff’s application for disability benefits, the Appeals Council declined further review, and the plaintiff instituted a civil action in this Court seeking review of the Secretary’s final decision denying him disability benefits. Because one of the tape recordings of the hearing before the ALJ was missing and a transcript of the proceedings therefore could not be completed, the plaintiff’s case was remanded to the Secretary for the purpose of holding a de novo hearing.

At the plaintiff’s request, his case was assigned to a different AU than the one who had initially considered the case. Following a de novo hearing; the second ALJ denied the plaintiff disability benefits. The ALT found that the plaintiff was not disabled, as defined in the Social Security Act (“the Act”), at any time through September 30, 1976, the last date on which the plaintiff met the special earnings requirements of the Act for purposes of disability insurance benefits. The Appeals Council affirmed the ALJ’s decision. The plaintiff then instituted the instant action in this Court.

Under the standard of review established by the Act, the Secretary’s findings of fact, if supported by substantial evidence, are conclusive. 42 U.S.C. § 405(g). Thus a court must uphold the findings if, reviewing the record as a whole, a reasonable mind could accept the evidence as adequate to support the Secretary’s conclusion. Rodriguez v. Secretary of Health and Human Services, 647 F.2d 218, 222 (1st Cir.1981).

The issue in this case, therefore, is whether the Secretary’s decision that the plaintiff was not disabled within the meaning of the Act on or before September 30, 1976, is supported by substantial evidence. The plaintiff argues that the Secretary erred in finding that he was engaged in substantial gainful activity within the meaning of the SSA regulations during the period of October 1974 through September of 1976, and, consequently, that he was not then disabled.

When evaluating a disability claim, the SSA applies the five-part test embodied in the SSA regulations at 20 C.F.R. § 404.-1520. The first question the evaluator asks is whether the claimant is engaged in substantial gainful activity, that is, whether he is gainfully employed. Goodermote v. Secretary of Health and Human Services, 690 F.2d 5, 6 (1st Cir.1982). If he is, then he will not be found disabled regardless of his medical condition at the time. 20 C.F.R. § 404.1520(b).

The SSA regulations provide guidelines based on the claimant’s earnings from work, for determining whether an individual’s work activity constitutes substantial gainful activity. 20 U.S.C. § 404.1574. Ordinarily, earnings from work activities as an employee in excess of an average of $200 a month in the calendar years prior to 1976 and of $230 per month in 1976 show that an individual was engaged in substantial gainful activity. 20 U.S.C. § 404.-1574(b)(2). The pertinent time period in this case is March 20, 1974 through September 30, 1976. The plaintiff’s current status is not at issue.

The evidence shows that the plaintiff worked as an interviewer for the Massachusetts Division of Employment Security (“the DES”) from 1974 through August of 1978. From March 1974 through October 1974, the plaintiff worked under a program devised and paid for by the Massachusetts Rehabilitation Commission. He was paid the minimum wage and allowed to go to therapy for his back problem every morning. From September 7, 1974 through August 15, 1978, the plaintiff was a regular employee of the DES, a senior claims interviewer, and earned between $156 and $220 per week. This record of earnings creates the presumption that the plaintiff was engaged in a substantial gainful activity during that time period.

To rebut this presumption, the plaintiff argues that, although he accepted full salary from the DES, he did not perform, and was not capable of performing, as a full-time employee. In support of this contention, the plaintiff points to the 128 days of work he missed during this four-year period, including sick leave, vacation leave and leave without pay. In addition, the plaintiff refers to evidence that, for the first year at least, his supervisor helped him complete his paper work. The plaintiff also avers that he defrauded the State of Massachusetts by saying that he was on trips to interview employers when he actually stayed home and either did no work or else contacted prospective employers by telephone.

During the time he was employed by the DES, the plaintiff experienced significant recurrent back pain which required him to shift positions from standing to sitting while at work. The record, however, does not include any evidence that the plaintiff sought treatment for his back condition at that time. In fact, the plaintiffs medical record, made upon his admission to the Addison Gilbert Hospital on August 19, 1978, indicates that the plaintiff had done well following an operation in 1969, up until the prior week.

Although the plaintiff claims that he was not a productive employee of the DES, his supervisor, Mr. David Brown, wrote a letter, sometime after the plaintiffs resignation from the DES in 1979, which states that the plaintiff, despite his poor attendance record and constant back problem, “was one of the more productive interviewers ... and more than justified his position.” At the hearing before the AU, Mr. Brown stated that, contrary to what he had written in the letter, the plaintiff had not been a productive interviewer until his last two years with the DES. Mr. Brown also testified that while the plaintiff did not do make-work for the DES, he fulfilled all the requirements of his job for only short periods of time. A review of the plaintiffs work records, however, shows that his attendance during his first two years at the DES, from October 1974 through at least June 1976, was sufficiently regular to show regular work activity. I rule that the Secretary’s findings that the plaintiff was engaged in substantial gainful activity from October 1974 through September of 1976, and that he therefore was not disabled as defined in the Act during the relevant period of March 1974 through September 1976, is supported by substantial evidence. I note that the documentary evidence supports the AU’s decision and that the AU found the testimony of the plaintiff and Mr. Brown not entirely credible.

The Clerk of this Court is directed to send a copy of this memorandum to the Massachusetts Division of Employment Security.

Order accordingly.

      . Two prior applications, filed by the plaintiff in 1971 and 1979, are not in issue before this Court.


author: GRANT, Senior District Judge.

text:
    Emmlee K. CAMERON, Plaintiff, v. FRANCES SLOCUM BANK & TRUST COMPANY, and State Automobile Insurance Association and Glassley Agency of Whitley, Indiana, and Larry J. Rice, Wabash County Sheriff, Defendants.
    No. S 85-303.
    United States District Court, N.D. Indiana, South Bend Division.
    Feb. 27, 1986.

      Philip A. Clancey, Traverse City, Mich., for plaintiff.
    Donald R. Metz, Wabash, Ind., for Frances Slocum Bank.
    Mark W. Gray, Indianapolis, Ind., for State Auto. Ins.
    Charles W. McNagny, Fort Wayne, Ind., for Glassley Agency of Whitley, Indiana.
   MEMORANDUM AND ORDER

GRANT, Senior District Judge.

This matter comes before the Court on defendants’ (Frances Slocum Bank & Trust Company’s, State Automobile Insurance Association’s and Glassley Agency’s) Motions for Summary Judgment and defendant’s (Frances Slocum Bank & Trust Company’s) Motion for Attorney’s Fees. For the reasons set forth below, the Court grants the defendants’ motions.

Facts
Under FED.R.CIV.P. 56(c), summary judgment may only be granted if “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as matter of law.” FED.R.CIV.P. 56(c). Thus, summary judgment serves as a vehicle with which the court “can determine whether further exploration of the facts is necessary.” Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976).
In making this determination, the court must draw all inferences from the established or asserted facts in favor of the nonmoving party. Peoples Outfitting Co. v. General Electric Credit Corp., 549 F.2d 42 (7th Cir.1977). However, a party opposing the motion may not rest on the mere allegations of his pleadings or the bare contentions that an issue of fact exists. Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.1983), cert. denied, 464 U.S. 960, 104 S.Ct. 392-93, 78 L.Ed.2d 336 (1983). See Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). See generally, C. Wright, Law of Federal Courts, § 99 (4th ed. 1983); 6 Moore’s Federal Practice, § 56.15 (2d ed. 1983).
Even if there are some disputed facts, where the undisputed facts are the material facts involved and those facts show one party is entitled to judgment as a matter of law, summary judgment is appropriate. Egger v. Phillips, 710 F.2d 292, 296-97 (7th Cir.1983), cert. denied, 464 U.S. 918, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983). Further, if the court resolves all factual disputes in favor of the non-moving party and still finds summary judgment in favor of the moving party is correct as a matter of law, then the moving party is entitled to summary judgment in his favor. Id. at 297. See also, Bishop v. Wood, 426 U.S. 341, 348 n. 11, 96 S.Ct. 2074, 2079 n. 11, 48 L.Ed.2d 684 (1976).

Ezpeleta v. Sisters of Mercy Health Corporation, 621 F.Supp. 1262, 1265 (N.D.Ind.1985).

With these principles in mind, the Court, having reviewed the depositions, transcripts and numerous pleadings in the instant case, finds the relevant facts to be as follows:

From 1970 to 1974, plaintiff, Cameron, worked as a licensed real estate broker in Indianapolis, Indiana. Cameron left the real estate profession and began working with her father, Schultz, who manufactured and sold fire trucks and other fire equipment. In 1976, Cameron and Schultz purchased the property at issue in this lawsuit. The two secured a $20,000 mortgage from defendant, Frances Slocum Bank & Trust Company [hereinafter referred to as the Bank], and procured fire insurance thereon from defendant, State Automobile Insurance Association [hereinafter referred to as SAIA], through its agent Mark Glassley, during business as defendant, Glassley Insurance Agency [hereinafter referred to as Glassley Agency]. Schultz moved his fire truck manufacturing business into part of the building on the property, and Indiana Water Company rented part of the building as a pumping station. At the time, Cameron sat on the Board of Directors of her father’s company, E.L. Schultz & Company.

The mortgage, executed by Cameron, Schultz and the Bank on December 3, 1976, provided in pertinent part that Cameron and Schultz would pay all taxes, assessments and liens against the property, that Cameron and Schultz would keep the buildings on the property in good repair, and that Cameron and Schultz would maintain fire and extended coverage insurance on the property. The mortgage made Cameron and Schultz responsible for attorney’s fees incurred by the Bank to protect its interest in the property. The mortgage allowed the Bank to declare the indebtedness due and collectible and to foreclose on the property if Cameron and Schultz failed to meet any of their obligations under the mortgage.

Cameron and Schultz received insurance coverage which extended from December three of each year to December three of the next year. Their yearly policies described the property as: “one story brick with steel rafters, approved roof, building occupied as a light manufacturer and Indiana Water Co. Pumping Station____” Coverage under the policy became suspended “while a described building, whether intended for occupancy by owner or tenant, is vacated or unoccupied beyond a period of sixty consecutive days____” Cameron kept the policies in her possession.

Before issuing the original policy in 1976, agent Phil Glassley toured the building with Schultz, saw the fire truck and pumping operations, and was told that the. Water Company was using the building as a pumping station. When agent Phil Glassley visited the building shortly before Schultz filed bankruptcy in late 1979 or early 1980, Schultz again represented that the Water Company was using the building.

In 1979, Cameron became the sole owner of the property. At that time, the Indiana Water Company still rented part of the building as a pumping station, and Schultz still used part to build his fire trucks. However, in late 1979, the Water Company informed Schultz, in a letter which Cameron later read, that they were vacating the building, and that they would pay their share of the taxes and insurance premium until they had completely vacated.

Prior to 1981, the Water Company removed its pumping equipment from the building and ceased to make rent, taxes and insurance payments. Also prior to 1981, Schultz’s bankruptcy caused him to discontinue his fire truck manufacturing business. Neither the Water Company nor Schultz returned to the building. The Water Company, however, maintained a water tank, an underground reservoir and underground pipes on the remainder of the property.

In December 1980, Cameron failed to pay her insurance premium. Glassley Agency canceled the policy and gave notice to Cameron and the Bank. The Bank contacted Cameron and insisted that she reinstate the insurance on the property immediately or face foreclosure. Cameron contacted Glassley Agency and asked that the policy be rewritten at once. After receiving the premium, agent Phil Glassley filled out an application for insurance on Cameron’s property. The application sought insurance from January 15, 1981 to January 15, 1982. The application no longer noted Schultz’s fire truck manufacturing business as an occupant of the building because agent Phil Glassley knew of Schultz’s bankruptcy. The application listed the Water Company as the only tenant in the building because Schultz had represented that the Water Company was a tenant when agent Phil Glassley visited the building in late 1979 or early 1980. On the application, agent Phil Glassley related, among other things, that the building was in good repair, that the building had been insured under another policy which had been canceled for nonpayment of the premium, that he had visited the risk and that he recommended issuing insurance. An unknown individual signed Cameron’s name on the application. The Glassley Agency sent the application to SAIA, and a new policy issued. Cameron never reviewed the application, but did receive the policy which described, as all other policies had, the premises as occupied by Indiana Water Co. Pumping Station. Cameron received similar policies in 1982, 1983 and 1984.

After the Water Company vacated the building, Cameron stored some personal belongings in it. However, she never found a tenant to replace the Water Company. The building gradually fell into disrepair due to vandals and to lack of maintenance. In February 1984, the City of Wabash police informed the City of Wabash Building Commissioner that the building was becoming a safety concern. Upon inspection, the Commissioner found broken doors and windows, overgrown brush and weeds, litter and disrepair. On March 2, the Commissioner contacted Cameron who was living in Traverse City, Michigan. The Commissioner informed Cameron about the condition of the building and asked that something be done about it. Discussions with Cameron proved fruitless. On May 3, 1984, the Commissioner posted signs on the property declaring it to be dangerous and unsafe. Cameron received notice of this action. Further discussion followed in June, but the building and property continued to deteriorate. The fire which caused the damage giving rise to this lawsuit occurred on June 30, 1984.

Because the building had been unoccupied and vacant for more than sixty days, SAIA disclaimed coverage for the fire loss in a July 30, 1984 letter. On August 10, 1984, the Bank began state court foreclosure proceedings against the property because Cameron had failed to make mortgage payments after June 1984, and because the Bank had paid back taxes on the property. Three days later, Cameron filed a sworn statement of proof of loss with SAIA describing the building as occupied by the Water Company. The Bank submitted a proof of loss to SAIA on March 13, 1985. SAIA sent the Bank a check in the amount of $13,975.54 which equaled all sums owed to the Bank by Cameron as of June 30, 1984.

The Bank foreclosed on the property on April 16, 1985. The Bank gave Cameron a credit reflecting the $13,975.54 received from SAIA. The Sheriff of Wabash County, Indiana, scheduled a sale of the property for June 4, 1985. Cameron filed the instant action on May 29, 1985, seeking a temporary restraining order and an adjudication of the rights and liabilities of the parties.

After a June 3, 1985 hearing, this Court issued a temporary restraining order. The Court heard argument on Cameron’s Motion for a Preliminary Injunction on August 1, 1985. The Court denied the motion and dissolved the temporary restraining order on August 30, 1985.

Analysis

A. Glassley Agency’s and SAIA's Motion for Summary Judgment.

SAIA disclaimed coverage for the fire loss because it determined that the building had been unoccupied and vacated for more than sixty days before the fire in violation of the insurance policy. Cameron contends that waiver or estoppel ought to operate to bar SAIA from disclaiming insurance coverage because, in the 1981 application, agent Phil Glassley represented that the building was occupied.

Technically, there is a distinction between “waiver” and “estoppel.” A waiver is an intentional relinquishment of a known right and is a voluntary act, while the elements of estoppel are the misleading of a party entitled to rely on the acts or statements in question and a consequent change of position to his detriment. But in the law of insurance, the distinction between “estoppel” and “implied waiver” is not easy to preserve, and, quite commonly, in insurance cases, the courts have found it unnecessary or inadvisable to make a distinction between them and have used the terms interchangeably. The doctrines of “waiver” and “estoppel” extend to practically every ground upon which an insurer may deny liability.

Hargis v. United Farm Bureau Mutual Insurance Company, 180 Ind.App. 432, 388 N.E.2d 1175, 1178-79 (1979) (quoting Travelers Insurance Co. v. Eviston, 110 Ind.App. 143, 37 N.E.2d 310, 314 (1941)).

In order for waiver to bar SAIA’s disclaimer, SAIA or agent Phil Glassley had to have had full and actual knowledge of all the facts surrounding the waived occupancy provision. State Farm Mut. Automobile Ins. Co. v. Phillips, 210 Ind. 561, 2 N.E.2d 989, 994 (1936); Rushville Nat. Bank of Rushville v. State Life Ins. Co., 210 Ind. 492, 1 N.E.2d 445, 448 (1936). Adequate consideration must support a waiver. Bronson v. Northwestern Mutual Life Ins. Co., 75 Ind.App. 39, 129 N.E. 636, 640 (1921). In the instant case, no consideration supported the alleged waiver of the occupancy clause. Further, by filling out the application for Cameron, Glassley agency and SAIA obtained only implied or constructive knowledge of the status of the building. Indiana Ins. Co. v. Hartwell, 123 Ind. 177, 24 N.E. 100, 105 (1890). Constructive notice does not suffice to invoke the doctrine of waiver. 16B J. Appleman & J. Appleman, Insurance Law and Practice § 9086, at 541 (1981). Therefore, waiver does not bar SAIA’s disclaimer in the instant case.

“ ‘The term estoppel is broader than that of waiver, and may embrace it within its scope, in certain instances, since an insurer, after waiving certain rights, would be estopped thereafter to insist upon them. The converse is not true, as an estoppel need not be founded upon a waiver.’ ” Id. at § 9081, at 497. When an insurer’s agent certifies that he has inspected certain premises and that the premises are occupied, and when the agent recommends that an insurance policy issue, estoppel may bar the insurer from raising the issue of occupancy to void the policy. See Hoosier Insurance Company v. Ogle, 150 Ind.App. 590, 276 N.E.2d 876, 880 (1971).

The doctrine of equitable estoppel is called into play when a false representation of material fact is made with actual or constructive knowledge of the true state of the facts. The representation must be made to one who is without knowledge or the reasonable means of knowing the true facts with the intent that it will be relied upon. The second party must then rely upon such representation to his or her detriment. Kline v. Kramer (1979), [179] Ind.App. [592], 386 N.E.2d 982, 987; Hargis v. United Farm Bureau Mut. Ins. Co. (1979), [180] Ind.App. [432], 388 N.E.2d 1175, 1179, fn. 2.

Whitaker v. St. Joseph’s Hospital, 415 N.E.2d 737, 744-45 (Ind.App.1981). Estoppel does not operate in situations where there is unwarranted reliance. 16B J. Appleman, supra p. 9, § 9088, at 563-65.

In the instant case, Cameron relied upon agent Phil Glassley's representation in the 1981 insurance application which stated that her building was occupied. On March 2, 1984, the Wabash Building Commissioner contacted Cameron and told her that the building had become a safety concern, that vandals had broken its doors and windows and had damaged its inside, and that disrepair and poor maintenance made effective policing impossible. After this conversation, Cameron must have known that the building was neither occupied nor capable of being occupied. Her reliance on agent Phil Glassley’s representation ceased to be reasonable and became unwarranted. Therefore, equitable estoppel does not operate in this situation.

For these reasons, the Court grants summary judgment to SAIA and to the Glassley Agency.

B. The Bank’s Motions for Summary Judgment and Attorney’s Fees.

The mortgage governs the relationship between Cameron and the Bank.

As is true in the interpretation of all written agreements, the language of the mortgage and supporting instruments, unless it is ambiguous, represents the intention of the parties and is controlling. Kimbell Foods, Inc. v. Republic National Bank of Dallas, (5th Cir,1977) 557 F.2d 491, 496, aff'd 440 U.S. 715, 99 S.Ct. 1448, 59 L.Ed.2d 711. In the absence of fraud or overreaching, it is these objective, written materials, rather than the parties’ subjective understandings, which are controlling. Id.

Merchants National Bank & Trust Company of Indianapolis v. H.L.C. Enterprises, Inc., 441 N.E.2d 509, 513 (Ind.App.1982); see also First Federal Savings and Loan Association of Gary v. Stone, 467 N.E.2d 1226, 1233 (Ind.App.1984). Cameron has not alleged fraud or overreaching in the formation of the mortgage. “The interpretation of an integrated written contract which contains no ambiguity is a question of law for the court.” Pearson v. First National Bank of Martinsville, 408 N.E.2d 166, 170 (Ind.App.1980) (citation omitted).

The parties to a mortgage may enter into an agreement regarding the acquisition of insurance and disposition of insurance proceeds in the event of a loss. See id. at 169; see also First Federal Savings and Loan Association of Gary, 467 N.E.2d at 1233. The instant mortgage provides: “[t]he Mortgagor expressly agrees ... to keep fire and extended coverage insurance in a reliable company approved by Mortgagee and with proceeds rendered payable to the Mortgagee to the extent of its interest,____” Cameron would place a fiduciary duty upon; the Bank to know the status of the building and to review the provisions of the insurance policy. No such duty exists because Cameron specifically contracted to obtain and maintain adequate insurance.

Cameron also states that the Bank had actual knowledge of the status of the building and the provisions of the insurance policy. Cameron bases these allegations upon her beliefs. See Deposition of Emmlee K. Cameron at 112-15. “[A] party opposing the motion [for summary judgment] may not rest on the mere allegations of his pleadings or the bare contentions that an issue of fact exists.” Ezpeleta, 621 F.Supp. at 1265. A party ought to support its allegations with affidavits, Fed.R.Civ.P. 56(e); Cameron has supplied none. This Court, therefore, must find Cameron’s conclusory allegations regarding the Bank’s knowledge to be inadequate.

The mortgage also provides that “[t]he mortgagor expressly agrees to keep all taxes ... against said property paid ...” and that “mortgagor further agrees that upon failure to pay any ... taxes ... all of said mortgage indebtedness shall at Mortgagee’s option, without notice, become due and collectible and this mortgage may then be foreclosed accordingly.” In addition to this contractual right to foreclosure, the Bank had a statutory right to foreclosure when Cameron failed to perform any condition of the contract. See Ind. Code Ann. § 34-1-53-1 (Burns 1973). When Cameron failed to pay the taxes, the Bank exercised its foreclosure right under the mortgage and under Indiana law. The Court finds Cameron’s conclusory allegations of misconduct inadequate to challenge the propriety of these actions. For these reasons, this Court grants summary judgment to the Bank.

Finally, the mortgage provides:

[i]n case the Mortgagee shall become a party to any suit or legal proceedings, relating to the above described property or any part thereof, all costs, expenses and attorney’s fees incurred therein by the Mortgagee to protect the lien of this mortgage or any of its rights hereunder, shall, with interest thereon ... become a part of the mortgage debt hereby secured and shall, on demand, be paid by the Mortgagor.

Because the Bank was called upon to protect its interests in the property in the instant action, it may collect its related cost, expenses and attorney’s fees upon demand. The Bank has submitted an affidavit listing these amounts, and Cameron has not challenged the figures which total $3,141.55. Because Cameron contracted to pay these charges, the Court grants the Bank’s Motion for Attorney Fees and Expenses in the amount of $3,141.55.

Conclusion

The defendants’ Motions for Summary Judgment are GRANTED. The Bank’s Motion for Attorney Fees and Expenses is GRANTED. Judgment will be entered accordingly.

      . Frances Slocum Bank & Trust Company originally filed a motion to dismiss pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure. The Court, by Order dated 29 August 1985, notified the parties that the Court intended to treat the Motion as Motion for Summary Judgment pursuant to Rule 56.


author: NICKERSON, District Judge.

text:
    The BOARD OF EDUCATION OF the CITY OF NEW YORK, Plaintiff, v. Gordon AMBACH, Commissioner of Education for the State of New York, and Mr. Joseph R., on Behalf of his son, Mordechai R., Defendants.
    No. CV 85-0253.
    United States District Court, E.D. New York.
    Feb. 27, 1986.

      Frederick A.O. Schwarz, Jr., Corp. Counsel, City of New York (Beth G. Schwartz, Vincent D’Orazio, of counsel), New York City, for plaintiff.
    Robert D. Stone (Kenneth Pawson, of counsel), Albany, N.Y., for defendant Gordon Ambach.
    Neal H. Rosenberg, New York City, for defendants Joseph R. and Mordechai R.
   MEMORANDUM AND ORDER

NICKERSON, District Judge.

The Board of Education of the City of New York (the Board) brought this action pursuant to the Education For All Handicapped Children Act, 20 U.S.C. § 1401 et seq. (the Act) and the New York State Education Law § 4404(4) (the Law). The Board seeks to set aside a determination of defendant Ambach, the Commissioner of Education of the State of New York (the Commissioner), awarding tuition reimbursement to defendant Joseph R., the father of Mordechai R. (Mordechai), a handicapped child, for his attendance for the 1983-1984 year at the Hebrew Academy for Special Children (the Academy). No essential facts are in dispute, and both sides have moved for summary judgment.

Mordechai’s parents enrolled him in the Academy in 1981. On December 8, 1982 the Committee on the Handicapped District 20 (the Committee) classified him as severely mentally retarded and recommended a public school placement. At the request of his father, Joseph R., the Committee held a further meeting and again concluded that the public school placement was appropriate. His parents challenged the recommended placement pursuant to 20 U.S.C. § 1415(a) and (b) and New York Education Law § 4404(1).

On March 30, 1983 the Committee informed Joseph R. that Mordechai was eligible for private school funding as of December 9, 1982 under this court’s order Number 8 in Jose P. v. Ambach, because the Committee had failed to offer a placement within 60 days of Mordechai’s referral. The Board then funded his attendance at the Academy for the period December 9, 1982 through June of 1983.

In August of 1983 the Committee once more classified Mordechai as severely mentally retarded and offered Mordechai’s parents a public school program for the 1983-1984 school year. Joseph R. asked to meet with the Committee to discuss the recommendation. On December 20, 1983 the Committee again recommended a public school placement. Joseph R. disagreed and requested an impartial hearing pursuant to 20 U.S.C. § 1415(a) and (b) and New York Education Law § 4404(1).

In a June 11, 1984 decision the impartial hearing officer found the placement appropriate but directed funding for Mordechai’s tuition for the 1983-1984 school year at the Academy, because of “ ‘unusual and exceptional circumstances’ relating to communication between the parents and the school district.” The hearing officer said that if Mordechai was again enrolled out of the public school system his parents could not get funding absent exceptional circumstances.

The parents then appealed to the Commissioner, who approved the placement in a public school but decided that the hearing officer was wrong to limit the obligation to pay tuition to one year. The Commissioner held that because the placement at the Academy became Mordechai’s “educational placement” within the meaning of the law, his parents were entitled to public funding for his attendance at the Academy during the appeal proceedings.

The issue is whether the placement in the Academy pursuant to this court’s order filed July 8, 1982 in the Jose P. case is Mordechai’s “current educational placement,” entitling his parents to funding pursuant to 20 U.S.C. § 1415(e)(3) until all proceedings reviewing the placement recommendation conclude. That section provides, in pertinent part, that “[d]uring the pendency of any [review] proceedings ... the child shall remain in the then current educational placement of such child.” The Board claims that the Academy did not become Mordechai’s current educational placement and therefore that after the August 1983 recommendation of a public school program the parents had no right to public funding for the attendance at the Academy.

Under the court’s order filed July 8, 1982 in the Jose P. case both the Board and the State Education Department “shall determine that the placement [of a child in a private school] was appropriate for the needs of the child.” This court contemplated that an enrollment after such a determination would be a “placement” for all purposes. Mordechai’s enrollment in the Academy pursuant to the order was thus not “unilateral” as the Board urges.

As Judge Platt said in an indistinguishable case, Board of Education v. Ambach, 612 F.Supp. 230, 232 (E.D.N.Y.1985), to hold with the Board would be to “eviscerate the meaning and intent of the procedural safeguards” of 20 U.S.C. § 1415, “the purpose of which was to ensure some stability in a handicapped child’s school placement during the pendency of impartial review proceedings of the school agency’s placement recommendation.”

This court does not deem Zvi D. v. Ambach, 694 F.2d 904 (2d Cir.1982), pertinent. That case did not concern a placement under the Jose P. order. The Court of Appeals recognized that the status quo provision would have applied to Zvi D. had his private placement been ordered. Id. at 908.

Defendants’ motion for summary judgment is granted, and the complaint is dismissed. So ordered.


author: MARQUEZ, District Judge.

text:
    David Allen MANN, Plaintiff, v. Rita JETT, et al., Defendants.
    No. CIV 84-956 TUC ACM.
    United States District Court, D. Arizona, Tucson Division.
    March 10, 1986.
    David Allen Mann, in pro per.
    Thomas E. Dugal, Deputy Co. Atty., Tucson, Ariz., for defendants.
   ORDER

MARQUEZ, District Judge.

This case is before the court following reversal and remand by the Ninth Circuit Court of Appeals for further proceedings consistent with the Ninth Circuit’s opinion, Mann v. Jett, 781 F.2d 1448 (9th Cir.1986).

On April 29, 1985 this court granted the Defendants’ motion for summary judgment and denied the Plaintiff’s cross motion for summary judgment. Plaintiff filed this action seeking declaratory relief and monetary damages for the state’s failure to appoint an attorney for him in a pending state criminal case. An attorney had not been appointed because the Plaintiff had not yet arrived within the territorial limitations of the State of Arizona due to extradition problems. By the time the cross motions were filed, Plaintiff had arrived in Arizona and an attorney had been appointed by the state courts. This court then denied the declaratory relief claim as moot.

This court also denied the Plaintiff’s claims for monetary relief. The Defendants named in the complaint were a legal assistant with the Pima' County Attorney’s Office and a prosecuting attorney with that office. The county was also named as a Defendant but no separate claim was asserted against the county. In Arizona, as with most jurisdictions, the courts determine whether an attorney should be appointed for an indigent Defendant in a criminal case. It is not the function of the prosecutor nor of her staff. Plaintiff failed to name the proper party as Defendant in his claim for monetary relief. This court further held that since the only conduct alleged in the complaint pertained to a prosecutor’s attempt to conduct criminal proceedings against the Plaintiff, the doctrine of absolute immunity applied barring monetary relief against the named Defendants in any event.

The judgment in this case had no bearing on the state criminal proceedings. In fact, by the time the judgment in this case was entered, the Plaintiff’s claim for declaratory relief had been rendered moot by appropriate state court action. The judgment entered in this case also had no effect on the Plaintiff’s ability to present these claims to the state courts on appeal.

The grant of summary judgment was entered against the Plaintiff because he clearly failed to assert a claim upon which relief could be granted, Rule 12(b)(6) and Rule 56, Federal Rules of Civil Procedure. The Ninth Circuit’s opinion on this matter indicates that the court should have abstained from this decision since there was a state criminal proceeding already pending and the state courts could have resolved this issue, McCurry v. Allen, 606 F.2d 795, 799 (8th Cir.1979); Martin v. Merola, 532 F.2d 191, 194-95 (2d Cir.1976); Guerro v. Mulheam, 498 F.2d 1249, 1251-55 (1st Cir.1974).

This court believes that abstention is improper at this point in this case. The doctrine of abstention is based on comity between state and federal courts. It precludes the federal courts from exercising jurisdiction in certain circumstances where it would be better to allow the state courts to resolve the question first. This court has no dispute with the purposes of the abstention doctrine.

Implicit in the abstention doctrine, however, is the requirement that the federal court must actually have jurisdiction over the dispute. Article III of the United States Constitution precludes this court from deciding any matter except actual cases or controversies. In this case, the complaint failed to state an actual controversy between this Plaintiff and these particular Defendants. This court’s entry of summary judgment in this matter indicated nothing more.

Since this court concluded that there was no claim upon which the Plaintiff was entitled to relief in the complaint, this action was ended. There was no jurisdiction for this court to exercise here. Since this court did not have jurisdiction to decide the “dispute,” it would be impossible to abstain from the exercise of that jurisdiction. Abstention is a determination to be made at a much later date than exists with the present posture of this case.

Nevertheless, this court is bound by the mandates of its Court of Appeals. Accordingly, this court will abstain from reaching a decision in this case.

IT IS ORDERED that this action is dismissed under the doctrine of abstention set forth in the Ninth Circuit’s opinion in this matter.

      . Summary judgment was necessary because the Defendants did not file a motion to dismiss and the court was required to examine matters outside the complaint to reach a decision on the matter, see, Rule 12(b), Federal Rules of Civil Procedure.


author: CALDWELL, District Judge.

text:
    Mary V. KIEHN, Individually as Executrix of the Estate of James Henry Kiehn, Deceased, and as natural Guardian of her minor children, Ryan A. Kiehn, Mark W. Kiehn, Sara E. Kiehn and Ross M. Kiehn, Plaintiff, v. ELKEM-SPIGERVERKET A/S KEMI-METAL, Defendant.
    Civ. A. No. 83-0366.
    United States District Court, M.D. Pennsylvania.
    March 11, 1986.
   ORDER

CALDWELL, District Judge.

AND NOW, this 11th day of March, 1986, in view of the settlement reached in this matter, IT IS HEREBY ORDERED that this Court’s opinion on the choice-of-law issue, published at 585 F.Supp. 413 (M.D.Pa.1984), be and is hereby withdrawn.


author: WATSON, Judge:

text:
    NEC CORPORATION, Plaintiff, v. The UNITED STATES, Defendant.
    Court No. 85-7-00948.
    United States Court of International Trade.
    Jan. 10, 1986.

      Tanaka Walders & Ritger (Patrick F. O’Leary, Washington, D.C., on brief), for plaintiff.
    Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Washington, D.C. (Yelta A. Melnbrencis, New York City), for defendant.
   WATSON, Judge:

Plaintiff NEC Corporation has moved, pursuant to 28 U.S.C. § 2646 and Court of International Trade Rule 59(a), for rehearing and amendment of this court’s judgment of November 19, 1985 dismissing this case. The motion was filed herein on December 6, 1985. Defendant filed a responsive memorandum on December 27, 1985, to which plaintiff filed a reply on January 6, 1986.

The court initially notes that on December 4, 1985, prior to the filing of this motion, plaintiff filed a notice of appeal to the Federal Circuit of the November 19, 1985 judgment. Under Rule 4(a)(4) of the Federal Rules of Appellate Procedure as amended in 1979, the timely filing of a motion for new trial or to alter or amend the judgment pursuant to Rule 59 of the Federal Rules of Civil Procedure nullifies a previously filed notice of appeal, and the time for appeal runs from the district court’s disposition of the motion. See Advisory Committee Note to 1979 Amendment to Fed.R.App.P. 4(a)(4); Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 59-61, 103 S.Ct. 400, 402-03, 74 L.Ed.2d 225 (1982). Since Rule 59 of this court is patterned after Rule 59 of the Federal Rules of Civil Procedure, the court concludes that it has jurisdiction to dispose of the instant motion, the filing of which nullified the previously filed notice of appeal.

In the previous ruling, the court held that plaintiff’s attempt to file the summons commencing this action by certified mail without affixing sufficient postage did not meet the requirements for date-of-mailing filing under Rule 5(g) of this court and thus was unsuccessful. Because plaintiff’s subsequent attempt to file the summons was untimely, the action was dismissed for lack of jurisdiction. See 622 F.Supp. 1086. Plaintiff now seeks to introduce “newly discovered evidence” which allegedly demonstrates that the postage affixed to the envelope containing the summons was in fact sufficient. This so-called “new evidence” is the original certified mail receipt prepared by the secretary to plaintiff’s counsel, a copy of which is attached as Appendix A to plaintiff’s memorandum, filed December 6, 1985. Plaintiff acknowledges that it failed to pay the fee for the return receipt, but contends that this should not have prevented delivery of the summons to the clerk under applicable postal regulations. Plaintiff argues that the postage affixed to the envelope containing the summons satisfied the “proper postage” requirement of Rule 5(g).

For present purposes, the court may assume, without deciding, that the newly produced evidence, the original certified mail receipt, was previously unavailable to plaintiff’s counsel even with due diligence, and that the “proper postage” requirement for date-of-mailing filing under Rule 5(g) does not include the return receipt fee. Even so, the minimum required postage, according to plaintiff's own calculations, would be $1.65 — comprised of $.90 to cover the weight of the envelope and its contents, and a certified fee of $.75.

Plaintiff accurately describes the original certified mail receipt prepared by the secretary to plaintiff’s counsel in footnote 3 of its memorandum, filed December 6, 1985, as follows:

As indicated, the receipt shows $.90 to cover the postage and $.75 to cover the certified fee. The total shown on the receipt is $1.45 which represents a mathematical error.

The crucial question, therefore, is whether plaintiff’s counsel affixed $1.65 to the envelope containing the summons or whether the total affixed was only $1.45 as shown on the receipt.

The court, in an effort to resolve this matter, has examined the cover to the original envelope. That envelope is contained in the court file because plaintiff’s counsel used the same envelope for the subsequent successful certified mailing of the summons. The postage for the latter mailing was affixed by a printed stick-on label. A partial lifting of that label reveals that the postage for the original mailing was printed directly onto the envelope. The amount printed is unquestionably $1.45. Hence, the original affixed postage was $.20 less than the amount required under plaintiff’s own calculations.

Accordingly, because the court has previously ruled that the failure to affix sufficient postage defeats date-of-mailing filing under Rule 5(g), it is

ORDERED that plaintiff’s motion for rehearing and amendment of judgment is hereby denied.