author: OWEN, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Benjamin SALLEE, Defendant.
    No. 84 Cr. 177 (RO).
    United States District Court, S.D. New York.
    March 8, 1985.
    Rudolph W. Giuliani, U.S. Atty., New York City (David Hammer, Asst. U.S. Atty., New York City, of counsel), for plaintiff.
    Benjamin Sallee, defendant, pro se.
   OPINION AND ORDER

OWEN, District Judge.

Defendant Benjamin Sallee was indicted — and convicted — for two sales of heroin in bulk. His dealings, unfortunately for him, were with undercover agents of the United States Drug Enforcement Administration. It appears from early colloquy in the case that his initial plan was to defend on the ground of entrapment.

On the morning his trial was originally scheduled, with the jury panel and government witnesses waiting, Mr. Sallee arrived late and, to everyone’s surprise, fired his retained lawyer, allegedly for revealing secrets to the prosecution. Sallee thereafter endeavored to use his lack of counsel and an asserted lack of funds to obtain an extensive postponement — up to a year. When this was met by the Court’s appointment of a Federal Defender, Sallee fired that lawyer, too, claiming that a lawyer paid under the federally-funded Criminal Justice Act had a conflict of interest in representing him against that same Federal government — a man cannot “serve two masters,” he said. He took this step knowing that by this conduct he would have to proceed pro se.

The trial started approximately one month later. Mr. Sallee’s opening statement to the jury outlined the anticipated entrapment defense, but with a significant addition. It went as follows:

MR. SALLEE: So Buddy approached me [in August of 1982]. He said, “I have a supplier. The only thing you have to do is stand good for me for the money part.”
So I said, “Okay.” I said, “Stand good for you for the money.” I said, “Buddy, I don’t care what, I’m not touching it. You do what you want to do.” He said, “Okay.” He said, “All you have to do, pick it up, bring it to my house.” I said, “Buddy, you pick it up. You go to the guy. You go sit down and talk to the guy.” Me and Buddy, we sit down and you talk to the guy.
The people, they know my reputation in the streets, because they know if I stand good for something I would pay it. I have been in the number business since ’63. There is no one in Jamaica, New York City, Long Island, or anywhere that would say I owe them for a number or anything as far as money is concerned. You see, I have a reputation up in the streets at which I would say I was born with it, or I just lived up to it. So Buddy introduced me to these people where I got the drugs from.
So after Buddy introduced me, he asked me — he asked me, whatever the price was, so and so and so and so, and I said I would stand good for it.
Okay, I come back down. I’m going to get down to the conversation where the prosecutor already mentioned about the drugs. I talked to his agent on the phone. That was in 1982. Somehow, with the guy that wanted the money that I had to stand good for, and where the agent wanted to buy it for, we could never come to terms. So I passed.
So the next time it was in, I would say, Thanksgiving of 1983. It could have been a week before Thanksgiving of ’83. Buddy approached me again and asked me to get him some drugs. So this time, as I said before, I was a Born Again Christian. This time I took it to the Lord. I sat down and I asked the Lord, what shall I do. Buddy, He tells me, He says, Buddy is the police, He says, Those are the police that you are dealing with. He tells me, what they want, give it to them anyhow.
So, that came to me in a dream one night. Going back to Buddy, He tells Buddy okay..
Now, the first meeting that we have, Buddy, myself and Jefferies, I believe was the name that he was using — Jefferies. I told him almost the same thing as — I told him — Jefferies asked a question or whatever; I can’t remember right now, but it will come up later. And then at no time — I want you to keep this in mind — at no time did they find drugs on me or if I touched the. drugs. At no time.
When we picked up the drugs, I had someone else pick the drugs up for me. They was with me, I was with them. I would come to, as they say, Buddy’s house. The friend I had picked picked the drugs up and would give it to Buddy. Buddy would take the drugs from his house to Pennsylvania Station. The only thing I’m doing there was making sure the man that paid out the drugs get paid the money he was supposed to get.

Mr. Sallee thereafter' attempted to show entrapment through a lengthy cross-examination of the government informant, Freeman Mitchell — the “Buddy” of his opening. While successfully establishing Mitchell’s unsavory background and extensive history as a paid government informant, Sallee was less successful in setting forth a credible picture of entrapment, notwithstanding extensive use of leading questions.

He also sought a delay of the trial, claiming that the government had altered the tapes of phone calls memorializing his agreement to sell a kilogram of heroin to the undercover agents. He said they had deleted all the times he claims to have said, “I know you’re the police.” While I declined to delay the trial, it appeared that Mr. Sallee — notwithstanding his claimed indigence — had hired an electronics expert, and I had the expert given the tapes to examine for tampering. The expert represented to me that he would report back the next morning. He, however, was never heard from again.

To support his new exculpatory theory that he had been acting in accord with divine guidance, Mr. Sallee took the stand himself and announced that he was first going to read to the jury from the whole book of Genesis and thereafter to “walk through the Bible, go through the Bible and explain certain things that is in the Bible that is happening today.” When I declined to permit this and directed him to proceed to relevant matters, he chose not to give any testimony at all.

Finally, prior to the summations, Mr. Sal-lee was instructed in the robing room that he was to argue to the jury only from matters in the record and was not to add any new material in the course of his argument. He then spoke to me as follows:

MR. SALLEE: Even though Mr. Hammer also knows that I took the lie detector test, and he also knows the results of that.
THE COURT: Well, that is not in the record and there is to be no reference to a lie detector test. That is not to be referred to in the course of this argument.
Do you understand that?
MR. SALLEE: Yes, in a way.
THE COURT: There is to be no qualification on it. That is not in the record, and therefore there is to be no reference to a lie detector test in your closing argument to the jury. That is a court direction.

His summation, however, quickly reached the following:

MR. SALLEE: I also took a lie detector test and passed that.
MR. HAMMER: Objection.
THE COURT: Mr. Sallee, we discussed this. You are not to refer to that in any way, shape or form. That is an order of the Court.
MR. SALLEE: Yes, sir.
THE COURT: Go onto some other subject.
MR. SALLEE: I understand that. As I said, I passed a lie detector test.
THE COURT: Now, the jury will disregard this, and I will make some observations about it later.
You go onto another subject, sir, or your argument is terminated.
The jury will disregard that remark.
MR. SALLEE: As I said before, it showed that I have not been involved in drugs. Mr. Hammer knows it—
MR. HAMMER: Objection.
THE COURT: Sir, you are to sit down. Mr. Sallee, you are to sit down.

The jury was excused, and in their absence Mr. Sallee was found in contempt of court for violation of the Court’s express order and was sentenced to three months to commence immediately. He was informed that the sentence would be independent of the outcome of the trial. This was to keep him from further arguing prohibited matters to the jury. Upon the jury’s return, Mr. Sal-lee declined to proceed to any other subject, and his summation was declared terminated. It appears that Mr. Sallee had no interest in arguing other than prohibited matters.

The foregoing constitutes the Court’s findings and conclusions in the matter of the imposition of a three months period of imprisonment for contempt imposed on November 29, 1984, and is so ordered.

      . This was told to Judge Palmieri by Sallee’s first lawyer the day the trial originally was scheduled to start.

      . I observe that notwithstanding Mr. Sallee’s protestations of indigency, he hired an electronics expert during trial, and retained a new lawyer for sentencing.

      . Matthew 6:24.

      . At the opening of the trial before me, Mr. Sallee, without any prior notice, asked for a postponement saying he was speaking to a lawyer that night. He was told that the trial would proceed but that the lawyer could join it at any time. On the second day of the trial, and in the presence of the jury, he demanded that the trial be adjourned to give him time to get a lawyer. The jury was thereafter informed that Mr. Sal-lee had previously fired his lawyer, and was exercising his right to self-representation.

      . I note that Sallee's position, that the Lord told him to sell heroin to the police, was never mentioned by retained counsel at the first aborted trial, nor was Sallee’s mental competence ever raised by Sallee’s counsel at any time prior to sentencing, when the matter was at most "suggested” by his new counsel retained for sentencing. I can only conclude that the alleged "Lord's command” was the fabrication of a street-smart gambler turned drug-dealer, who was seeking to avoid the clear consequences of having been caught "red-handed."


source: Caselaw Access Project

author: ALLEN SHARP, Chief Judge.

license: Public Domain

text:
    Mary A. CLEM, Personal Representative of the Estate of Cary Lee Clem, deceased, Plaintiff, v. UNITED STATES of America, Defendant.
    No. S 83-430.
    United States District Court, N.D. Indiana, South Bend Division.
    March 11, 1985.
    Gerald A. Kamm, South Bend, Ind., Robert L. Dalmbert, Columbus, Ind., for plaintiff.
    Donald P. Moroz, Asst. U.S. Atty., South Bend, Ind., Patrick 0. Cavanaugh, U.S. Dept, of Justice, Washington, D.C., for defendant.
   MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

On January 29, 1985, this court entered a Memorandum and Order deciding this case in favor of defendant, United States of America, after a bench trial. 601 F.Supp. 835. On February 7, 1985, plaintiff filed a Petition to Reconsider Memorandum and Order which this court construes as a Motion to Amend Judgment under Rule 59 of the Federal Rules of Civil Procedure. The plaintiff raises two issues in her petition: (1) whether the court properly construed the “business invitee/invited guest” exception to I.C. § 14-2-6-3 in holding that the Indiana Recreational Use Statute barred this action in light of Mills v. American Playground Service Co. and City of Gas City, Indiana, Ind.App., 405 N.E.2d 621 (1980); and (2) whether the court erred in not finding the Indiana rescue doctrine as interpreted in Lambert v. Parrish, Ind. App., 467 N.E.2d 791 (1984), applicable to the facts of this case. The defendant has responded to the petition and the matter is ripe for ruling.

I.

In Mills v. American Playground Device Co. and City of Gas City, Indiana, supra, the Court of Appeals of Indiana held “The following duty and standard of care exists under Indiana law: A city is under a duty to exercise ordinary care to make public parks reasonably safe for persons rightfully frequenting and using the parks and equipment.” 405 N.E.2d at 627. Based on this language, the plaintiff argues that an individual may be an “invited guest” under Indiana law even when a business purpose or business enterprise is not involved if the invitation is to the public. Although the duty imposed on the city in this case is similar, if not the same, as the duty owed an invitee under Indiana law, plaintiffs reliance on the Mills case to bring her within the “invited guest” exception to the Indiana Recreational Use Statute is misplaced.

A careful reading of the Mills decision and cases cited therein with respect to the duty owed discloses that the duty described applies specifically to a city and does not have general application to a private citizen. None of the cases contain any mention or discussion of the status of the individual coming upon the land of another. Rather, the language clearly indicates that the duty is imposed as a result of the city’s exercise of its governmental powers and its performance of the ministerial and proprietary functions connected therewith. See City of Terre Haute v. Webster, 117 Ind.App. 101, 40 N.E.2d 972, 973 (1942) (en banc); Sherfey v. City of Brazil, 213 Ind. 493, 13 N.E.2d 568, 572 (1938); City of Indianapolis v. Baker, 72 Ind.App. 323, 125 N.E. 52, 53 (1919). Accordingly, the Mills decision does not support the plaintiff’s argument with respect to the “invited guest” exception to Indiana Recreational Use Statute nor can it be used as a basis for imposing the duty described therein on the defendant inasmuch as the Federal Tort Claims Act clearly indicates that the United States waived its sovereign immunity in a very limited way when it enacted that law such that it can only be held accountable in tort in the same manner and to the same extent as a private individual under like circumstances. 28 U.S.C. § 2674; Rayonier v. United States, 352 U.S. 315, 319, 77 S.Ct. 374, 376, 1 L.Ed.2d 354 (1957); see Proud v. United States, 723 F.2d 705, 706 (9th Cir.), cert. denied, — U.S. —, 104 S.Ct. 3536, 82 L.Ed.2d 841 (1984).

II.

The second issue raised by plaintiff concerns the application of the rescue doctrine to this case. The plaintiff maintains that the Indiana rescue doctrine applies in this case with respect to Mr. Clem’s actions and that under Lambert v. Parrish, Ind.App., 467 N.E.2d 791 (1984), Mr. Clem was not contributorily negligent under the modified standard of care required of a rescuer and that she cannot be barred from recovery on that ground.

The threshold question this court must answer with respect to this issue is: Does the rescue doctrine as defined in Indiana apply to this case? The answer must be no based upon the facts of this case.

Indiana recognized the viability of the rescue doctrine in Neal v. Home Builders, Inc., 232 Ind. 160, 111 N.E.2d 280 (1953). In that case, the defendants were in the process of building a house directly across the street from the home of the plaintiff, his wife (the decedent), and their three sons. The plaintiff alleged that the defendants knew the neighborhood children frequently played inside the dangerous, unfinished structure, and that the defendants therefore had a duty to keep children out. Early one morning, the plaintiffs wife recognizing the distressed cries of her youngest son, left her home, ran across the street, and entered the unfinished structure. Id. 111 N.E.2d at 283. There she discovered that the boy had become trapped on a step ladder that led to the second story of the building. In trying to free her son from his plight, the decedent lost her footing and fell to her death. The plaintiff sued the defendant/home builder based on the rescue doctrine theory of recovery. Id. 111 N.E.2d 283-84. With respect to the rescue doctrine, the Supreme Court of Indiana stated:

“If [plaintiff] is to recover under the allegations of his complaint, it must be done under the ‘rescue doctrine.’ This rule is clearly stated in 65 C.J.S., Negligence § 63, p. 554:
‘One who has, through his negligence endangered the safety of another may be held liable for injuries sustained by a third person in attempting to save such other from injury.’
It has been applied in the jurisdictions which have adopted it only where the situation which invites rescue is created by the tortious act of the defendant or by one for whom he is responsible. 65 C.J.S., Negligence, § 124, p. 738.”

111 N.E.2d at 284. The court then refused to apply the rescue doctrine because the defendants did not owe a direct duty of care to the child and thus, there could be no underlying negligent conduct by the defendants that created a situation inviting rescue. Id. at 295. In Lambert v. Parrish, the Court of Appeals of Indiana addressed the applicability of the rescue doctrine. After quoting the above language from Neal, the court stated:

“[I]t appears the rescue doctrine applies where the tortious act of the defendant or his agent has created a ‘situation which invites rescue’ by endangering the safety of the victim of the tort, and a third person is injured in the course of attempting to rescue the victim.”

467 N.E.2d at 795.

Applying the law as set forth above with respect to the rescue doctrine to the facts of the Clem case, the court can only conclude that rescue doctrine is not applicable in this case. The NPS did not breach any duty owed to the Clems, the NPS committed no tortious act endangering the safety of Mrs. Clem and did not create any situation inviting rescue.

For the foregoing reasons, plaintiff’s motion under Rule 59 of the Federal Rules of Civil Procedure is DENIED. SO ORDERED.


author: GESELL, District Judge.

text:
    Steven A. EMERSON, Plaintiff, v. DEPARTMENT OF JUSTICE, Defendant.
    Civ. A. No. 84-1304.
    United States District Court, District of Columbia.
    March 12, 1985.

      Irvin B. Nathan, Edward L. Wolf, Washington, D.C., for plaintiff.
    Jenny A. Sternbach, Sp. Asst. U.S. Atty., Washington, D.C., for defendant.
   MEMORANDUM

GESELL, District Judge.

This is a Freedom of Information Act complaint before the Court on cross-motions for summary judgment to resolve disputed exemption claims. Plaintiff, a freelance writer, seeks documents from the Criminal Division of the United States Department of Justice and from the Federal Bureau of Investigation concerning certain individuals who have registered under the Foreign Agents Registration Act (FARA), 22 U.S.C. § 611 et seq. More than 900 documents have been released and some disputes resolved in prior proceedings. The remaining issues, involving primarily claims by the Criminal Division for exemption under (b)(7)(C) of FOIA, 5 U.S.C. § 552(b)(7)(C), have been fully briefed and considered by the Court, aided by an in camera inspection and affidavits filed pursuant to this Court’s Orders of January 31, 1985, and February 19, 1985.

The Criminal Division has a dual role under FARA. It acts as the administrative agency to implement routine procedures under the Act and also enforces criminal sanctions and civil remedies as provided in the Act. 22 U.S.C. §§ 615, 618.

An in camera hearing was necessary to review document Nos. 192 to 214 which the Division withheld, and to consider the Division’s refusal on privacy grounds to state whether any named registrant covered by plaintiff’s request had been subject to an investigation and, if so, whether responsive documents exist in the Division’s files.

The Court first considers the Division’s broad claim in its Vaughn affidavit that the fact of investigation, if one occurred as to an individual registrant, connotes wrongful or even criminal conduct so that disclosure of the mere fact of investigation would constitute an unwarranted invasion of privacy.

Exemption (b)(7)(C), like the more exacting exemption (b)(6), is intended to apply to private information of an “intimate personal nature.” Sims v. Central Intelligence Agency, 642 F.2d 562, 573-74 (D.C.Cir.1980). Under this standard, information connected with one’s business or professional relationships is not generally exempt. Id. at 574; Cohen v. Environmental Protection Agency, 575 F.Supp. 425, 429 (D.D.C.1983). However, in recognition of the stigma potentially attached to criminal law enforcement investigations, it has been held that disclosure of the fact that an individual has been subject to such an inquiry but not charged with a crime represents a “severe intrusion” on personal privacy, even where the alleged criminal acts stem wholly from the subject’s business or professional conduct. See Fund for Constitutional Government v. National Archives, 656 F.2d 856, 866 (D.C.Cir. 1981). Even then, however, there is no per se rule against disclosure. The Court is required to balance the privacy interests of the individuals in question against the public interest in disclosure. Id.; Bast v. Department of Justice, 665 F.2d 1251, 1254 (D.C.Cir.1981). In addition, this exemption for criminal investigations has been limited to those cases where the specific information sought to be disclosed has “tend[ed] to indicate that a named individual has been investigated for suspected criminal activity.” Fund for Constitutional Government, 656 F.2d at 863. It has not been held that the mere existence of criminal sanctions in an administrative regulatory scheme creates an automatic inference that an individual investigated under the regulatory scheme has been investigated for criminal wrongdoing.

The Act makes clear that the investigations conducted by the Division under FARA are primarily civil, not criminal, in nature. While willful violations of the Act or willfully false statements filed pursuant to the Act are punishable as crimes, 22 U.S.C. § 618(a), the Act primarily contemplates civil enforcement through government inspections and notices of deficiencies in registration statements. 22 U.S.C. §§ 615, 618(g). These informal investigations for law enforcement purposes may be prompted by a news article, a discrepancy suggested by review of a filing, a complaint, an inquiry by the registrant, or some other more or less routine development. Under the Act’s record-keeping and inspection provisons, 22 U.S.C. § 615, the investigation sometimes leads to a detailed financial audit. Often copies of papers in the registrant’s file are obtained for further examination. They may or may not be returned to the registrant. Some of these papers may include diary entries, entertainment guest lists, explanation of certain expenditures and other details of the registrant’s activities, including activities that are not required to be reported.

The thrust of most investigations of this type is not punitive but rather directed to assure full and complete public disclosure to the extent required by the Act. Where deficiencies are found, the registrant is required to update his public filing with an appropriate amendment which reveals the essence of any previous failure fully to report which the investigation has revealed. 22 U.S.C. § 618(g). Only the most egregious violations showing willfulness are punishable as crimes. 22 U.S.C. § 618(a).

Registrants appear to cooperate in such inquiries while safeguarding details of their personal and non-registrant business activities from unnecessary public disclosure. Once the investigation has been completed and any amendments found necessary have been filed, the inquiry is normally closed without resort to any further sanction. Such a pattern was disclosed by the records examined in camera by the Court in this case. No criminal sanctions are involved here.

It is in this context that the Court must determine whether by balancing the public and private interests the Division’s file of any investigation that may have involved a named registrant must be disclosed to this FOIA requester. Exemption (b)(7)(C) will not wholly support the position taken by the Division as to such investigative materials once the balance is struck.

The Court has concluded that the fact that a law enforcement administrative investigation by the Division occurred to assure civil compliance with FARA by any of the individuals who are the subject of plaintiff’s requests does not provide automatic exemption under (b)(7)(C) of all papers generated. Although such inquiries may be viewed with alarm by the subjects involved, they are not basically criminal in nature and primarily lead to a review of information contained in records which each registrant is required to maintain by FARA regulations to determine whether or not a further or modified disclosure is required.

Such an investigation may generate data under several categories:

(1) Details underlying information already adequately reported.

(2) Purely personal activities engaged in by the registrant which are wholly unrelated to any activity as a registrant.

(8) Information that should have been reported and which is thereafter required to be reported in summary form.

In weighing the public interest in disclosure under each of these categories against whatever privacy interests may exist, it should be noted that plaintiff asserts he has no interest in material falling under (2) above. Here privacy interests predominate and irrelevant personal data turned up in the inquiry obviously need not be disclosed. Similarly, where an inquiry simply confirms the adequacy of previous reports and supplemental information is not required to be reported, such information by the very nature of the problem is of no determinable public interest. Thus privacy interests predominate as to category (1). The Court concludes that records disclosing only items under (1) and (2) need not be disclosed in any form nor need the fact of investigation itself be disclosed if it leads only to material covered by (1) and (2).

However, category (3) brings into the balance much stronger public interests in disclosure. There is a strong public interest in the public and the Congress to be fully apprised of the types of activity which registrants, either by inadvertence or design, withhold although subject to the disclosure strictures of FARA. While such activities if uncovered are required to be disclosed, albeit belatedly, this is done in summary form in the public registration statements, a process that does not wholly satisfy the strong public concern with what occurred. The public also has an interest in monitoring the vigor of the government’s enforcement of the regulatory scheme when unreported activity is revealed. In addition, privacy interests in such circumstances are relatively inconsequential. Extending exemption to this class of data on privacy grounds would ignore the purpose of the FARA and encourage noncompliance. The balance strongly favors disclosure of records in category (3), including related records showing the investigation itself and steps taken to develop the category (3) data. Where such a productive investigation has occurred, only material falling under categories (1) and (2) may be withheld. Except as to these categories exemption (b)(7)(C) may not be claimed.

There is another type of document present in the Division’s FARA files. Occasionally a registrant or his lawyer may write seeking the Division’s advice as to whether an on-going or prospective course of conduct must be disclosed under the Act. The Court holds disclosure of such communications exempt under (b)(7)(C). There is little if any public interest in disclosure and a strong interest in privacy. Nondisclosure indeed promotes smooth functioning of the Act since it encourages compliance by allowing registrants openly to seek advice without disclosure. Such inquiries may reveal private facts of a future business nature and present data beyond any information required to be reported. Plaintiff does not apparently seek this material. He states he wants to know whether registered agents’ activities were undertaken in compliance with applicable law, by which he appears to seek proof of noncompliance. In any event, under any weighing of the public interest against privacy interests, nondisclosure is indicated so long as the registrant complied with the Division’s decision when a ruling is sought.

As to other aspects of the case, the Court rules as follows.

Exemptions claimed by the Division as to document Nos. 79 and 84 are sustained after inspection.

As to the request directed to the FBI, the FBI has not been involved in any investigation of any named registrant for noncompliance with FARA. It has made available in camera two documents developed some years ago for other reasons which in passing refer to a named registrant as a registrant. No noncompliance with FARA by a registrant is suggested in these papers. If these documents are deemed to fall within the request, which is very doubtful, the exemptions claimed for them are sustained after in camera review.

Plaintiff’s motion for summary judgment is thus granted in part and denied- in part, and the Criminal Division shall within 20 days release documents, if any, presently withheld which are not exempted from disclosure under (b)(7)(C) by the foregoing Memorandum. In all other respects defendant’s motion for summary judgment is granted.

      . Plaintiffs motion was styled a motion for only partial summary judgment. However, plaintiff has not identified what aspect of the case would remain unsettled if his motion was granted. The motions are treated as seeking disposition of the entire case.

      . The Declaration of L. Jeffrey Ross asserts:
      The registrants' right of privacy would be seriously compromised beyond the requirements and purposes of the FARA by the confirmation of an inspection of their records and books by the Department, and the existence of such inspection records. The registrants could be stigmatized since such information could imply improper actions by the subject of an inspection. An inspection connotes an investigation, which, in turn connotes an allegation of some form of wrongful conduct____
      Ross declaration at 10. In its briefs the government characterizes such investigations as involving "potential criminal wrong-doing.” E.g., Defendant’s reply brief at 2.

      . The Division invokes that section of FOIA exempting from disclosure
      (7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would ... (C) constitute an unwarranted invasion of personal privacy[.]
      5 U.S.C. § 552(b)(7)(C). None of the registrants covered by plaintiffs request have consented to release of material in the Division’s files.

      . Defendant also invoked exemption (b)(6) in this case but relies primarily on exemption (b)(7)(C). The balancing inquiry discussed below is weighted more heavily against the government under exemption (b)(6) than under (b)(7)(C). It is thus only necessary to consider the (b)(7)(C) exemption.

      . Criminal penalties are of course common in federal regulatory schemes. See, e.g., 42 U.S.C. § 6928(d) (Resource Conservation and Recovery Act); 21 U.S.C. § 333 (Food, Drug and Cosmetic Act); 15 U.S.C. § 2070 (Consumer Product Safety Act).

      . This is typical of other federal enforcement regimes where scienter is an element of the offense.

      . There is no contention here that the disputed files involve pending or possible future investigations and thus would fall under exemption (b)(7)(A) as interfering with enforcement proceedings. See NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 236, 98 S.Ct. 2311, 2324, 57 L.Ed.2d 159 (1978).

      . This holding, moreover, will establish incentives for FARA registrants to comply fully with disclosure requirements in the first instance, since belated disclosure following investigation will subject them to greater disclosure under FOIA than if they had complied originally.

      . The in camera affidavit of Joseph E. Clarkson made clear that parties seeking the Division’s advice on registration statements are encouraged to make detailed disclosures and are assured that their statements are confidential. His affidavit also would have supported an exemption under section (b)(4) of FOIA for confidential commercial information. See Washington Post Co. v. U.S. Department of Health and Human Services, 690 F.2d 252, 268-69 (D.C.Cir. 1982). Exemption (b)(4) was not claimed here.


author: WEBER, District Judge.

text:
    James HANSLOVAN and Velma Hanslovan, his wife, Plaintiffs, v. PENNSYLVANIA MINES CORPORATION and Pennsylvania Power and Light, Defendants.
    Civ. A. No. 83-767.
    United States District Court, W.D. Pennsylvania.
    March 12, 1985.

      Daniel W. Ernsberger, Pittsburgh, Pa., for plaintiffs.
    David J. Laurent, Pittsburgh, Pa., for defendants.
   OPINION

WEBER, District Judge.

This age discrimination case was tried before a jury on December 7, 1984 resulting in a plaintiff’s verdict. It is now before the court on defendant Pennsylvania Mines Corporation’s (PMC) motion for judgment notwithstanding the verdict. The motion has been fully briefed by the parties.

Under Fed.R.Civ.P. 50(b) a judgment notwithstanding the verdict may be granted:

“... ‘only if, as a matter of law, the record is critically deficient of that minimum quantity of evidence from which a jury might reasonably afford relief Dudley v. South Jersey Metal, Inc., 555 F.2d 96, 101 (3d Cir.1977). In considering a motion for judgment n.o.v., the court ‘must expose the evidence to the strongest light favorable to the party against whom the motion is made and give him the advantage of every fair and reasonable inference.’ Inventive Music Ltd. v. Cohen, 617 F.2d 29, 31 (3d Cir. 1980).” (emphasis added).

Danny Kresky Enterprises Corporation v. Magid, 716 F.2d 206, 209 (3d Cir.1983). To establish a claim for age discrimination, the plaintiff must prove that age was a determining factor in the decision to discharge him. Smithers v. Bailar, 629 F.2d 892, 897 (3d Cir.1980); Berkowitz v. Allied Stores of Penn-Ohio, Inc., 541 F.Supp. 1209, 1217 (E.D.Pa.1982). The order of proof in this ADEA case, according to McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), requires that the plaintiff initially establish a prima facie casé of age discrimination by producing evidence which shows that (1) he was within the protected age group, (2) he was qualified for the job he held, (3) he was discharged and, (4) the position was filled with a younger employee or employees. Proof of these facts raise a rebuttable presumption of discrimination which defendant may counter by presenting a legitimate, non-discriminatory reason for the employment action. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 1095; 67 L.Ed.2d 207 (1981).

PMC admits that plaintiff established a prima facie case, but maintains that it produced overwhelming evidence showing that it had a legitimate, non-discriminatory reason for discharging plaintiff and that plaintiff failed to produce evidence from which the jury could reasonably have concluded that PMC’s stated reason was a pretext. However, plaintiff here was not satisfied with relying on the presumption and had attempted to introduce evidence in his affirmative case of a pattern of age discrimination. This court concludes that in addition to its evidence rebutting the presumption of discrimination, the defendant completely rebutted plaintiff’s case of a pattern of discrimination by thoroughly overwhelming evidence to the contrary.

During the trial, PMC maintained that it discharged plaintiff because it reasonably believed, that he had misused and abused his position as Superintendent of Lady Jane Collieries. By providing evidence of a legitimate, non-discriminatory reason for plaintiff's discharge, defendant PMC dispelled the presumption of age discrimination and satisfied its burden of production. Plaintiff always had the burden of proving that age was a determining factor in his discharge by a preponderance of the evidence. Smith v. Flax, 618 F.2d 1062 (4th Cir.1980). Upon the defendant’s production of evidence, the burden of going forward shifts back to plaintiff to show that defendant’s reasons for discharge are a sham.

We find that defendant gave strong and convincing evidence that the reason for plaintiff’s termination was based on multiple acts of misconduct in which he used his position to secure kickbacks from defendant’s suppliers and abused company funds. Plaintiff failed to rebut these allegations, claiming instead there was a conspiracy against him. Plaintiff’s additional evidence of alleged age discrimination was circumstantial and was directly contradicted and overwhelmingly rebutted by defendant’s evidence. We note that an employer is entitled to make his own business judgments and may fire even an adequate employee as long as this is not motivated by age discrimination. Thus the jury in an age discrimination action must focus on an employer’s motivation and not on its business judgment. Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir.1979). Since none of the evidence produced at trial reasonably suggests that defendant PMC was motivated by age discrimination when it decided to discharge plaintiff, the jury could not reasonably have found that age discrimination was a determinative factor in plaintiff’s discharge. The jury verdict went.against the overwhelming weight of evidence in favor of defendant. Therefore, a judgment notwithstanding the verdict must be entered in favor of PMC.

      . During the trial, this court granted a directed verdict in favor of Pennsylvania Power and Light Company. The court declined to rule on the motion for directed verdict made by Pennsylvania Mines Corporation at that time, but took it under advisement.


author: COPPLE, District Judge.

text:
    Wallace LARSON and Margaret Larson, husband and wife, Plaintiffs, v. FIRST INTERSTATE BANK OF ARIZONA, N.A., Defendant, Federal Deposit Insurance Corporation, as Receiver of Penn Square Bank, N.A., Intervening Defendant.
    No. Civ. 83-500 Phx. WPC.
    United States District Court, D. Arizona.
    April 15, 1983.
    Thomas C. Horne, of Campana & Horne, Phoenix, Ariz., for plaintiff.
    Louis A. Stahl, of Streich, Lang, Weeks & Cardón, Phoenix, Ariz., for defendant.
    Edward M. Lewis, of Lewis & Roca, Phoenix, Ariz., for intervening defendant.
   MEMORANDUM AND ORDER

COPPLE, District Judge.

This action is before this Court following removal from Maricopa County Superior Court. Plaintiffs are Wallace and Margaret Larson. Defendants are First Interstate Bank of Arizona, N.A. (First Interstate) and the Federal Deposit Insurance Corporation (FDIC). Plaintiffs seek grant of a preliminary injunction to prevent First Interstate from honoring a call by FDIC on a letter of credit issued for the account of Larson by First Interstate in favor of Penn Square Bank, N.A., of Oklahoma (Penn Square). FDIC is the legal successor in interest of Penn Square Bank.

The events surrounding the instant request for a preliminary injunction began in 1981 when the Larsons purchased limited partnership interests in the “Eagle Drilling Partnership-1981”, an oil and gas venture. The consideration paid for these interests consisted of cash and the Larson’s causing First Interstate to issue an irrevocable standby letter of credit in the amount of $55,000 payable to Penn Square Bank as beneficiary. This letter of credit was issued to Penn Square Bank as collateral to secure loans made by Penn Square to Eagle Drilling for its oil and gas activities.

A number of unfortunate events then occurred to disrupt this arrangement. Penn Square Bank was declared insolvent by the Controller of the Currency on July 5, 1982 and the FDIC was appointed receiver of its assets. Eagle Drilling then defaulted on its loan obligations with Penn Square Bank. FDIC, as successor in interest to Penn Square Bank, subsequently called the letter of credit on February 7, 1983. FDIC sent a sight draft to First Interstate and requested payment of the $55,000 by wire.

Before First Interstate could pay FDIC the $55,000, however, the Larsons filed two lawsuits in Maricopa County Superior Court. The first lawsuit alleged a securities violation and named Eagle Drilling as defendant. The complaint alleges fraud in the offer and sale of the partnership interests and requests rescission as a remedy pursuant to A.R.S. § 44-2001. If such remedy is granted, the Larsons maintain that the letter of credit would be rendered void and unenforceable. This lawsuit remains pending at the present time as an adversary proceeding in the United States Bankruptcy Court for the District of Arizona as a result of its removal following Eagle Drilling’s declaration of bankruptcy.

The second lawsuit filed in Maricopa County Superior Court named only First Interstate Bank as defendant. The complaint alleges fraud in the original 1981 partnership transaction and sought a temporary restraining order, preliminary injunction and permanent injunction against the bank’s payment of the $55,000 to FDIC. Provisional relief was requested on the basis that should the letter of credit be paid, the Larsons, if they won their companion securities lawsuit, would have no legal remedy or means to obtain reimbursement because (1) Penn Square Bank has been declared insolvent, and (2) Eagle Drilling and other defendants in the securities action would be unable to reimburse plaintiffs. On February 9, 1983 the Maricopa County Superior Court issued a temporary restraining order preventing First Interstate Bank from paying the funds to FDIC. Thereafter, on March 14, 1983 FDIC was allowed to intervene as a party defendant in this action. FDIC then successfully had the action removed to this court pursuant to 12 U.S.C. § 1819.

The instant motion before this Court is plaintiffs’ application for a preliminary injunction to prevent First Interstate from paying FDIC the $55,000 on the letter of credit. There exist two alternative tests for determining whether a preliminary injunction should issue under a given set of circumstances. Under one test, a preliminary injunction may issue if (1) the plaintiff will suffer irreparable injury if injunctive relief is not granted; (2) the plaintiff will probably prevail on the merits; (3) in balancing the equities, the defendants will not be harmed more than plaintiff is helped by the injunction; and (4) granting the injunction is in the public interest. William Inglis & Sons Baking Co. v. ITT Continental Baking Co., 526 F.2d 86, 87 (9th Cir. 1975). The alternate test for granting a preliminary injunction requires the moving party to demonstrate that serious questions are raised in the case and that the balance of hardships tips sharply in plaintiff’s favor. White Mountain Apache Tribe v. State of Arizona, 649 F.2d 1274, 1285 (9th Cir. 1981); Los Angeles Memorial Coliseum v. National Football League, 634 F.2d 1197, 1200 (9th Cir.1980). Plaintiffs rely upon this latter standard in support of the instant request for a preliminary injunction.

Plaintiffs contend that a preliminary injunction is warranted because at least five serious questions exist with respect to this litigation. These are: (1) the question of fraud with respect to the transaction between Eagle Drilling and the Larsons; (2) the effect of the fact that Penn Square Bank allegedly knew or should have known from information it possessed that Eagle Drilling violated federal securities laws; (3) the effect of FDIC’s alleged breach of a specific commitment of Penn Square Bank, which caused Eagle Drilling’s default in the first instance; (4) because FDIC called the entire amount of the letter of credit due, FDIC’s alleged violation of provisions in the loan agreement between Penn Square Bank and Eagle Drilling which call for pro rata contribution among all investors who put up letters of credit; and (5) the need for consistent results among identically or nearly identically situated investors involved in litigation in different jurisdictions. On consideration of the briefs, affidavits and exhibits on file, and arguments of counsel, this Court is of the opinion that serious questions exist with respect to at least one relevant aspect of this litigation. Further, because the balance of hardships weighs heavily in favor of plaintiffs, the request for a preliminary injunction must be granted.

The starting point for analysis is U.C.C. § 5-114(2)(b), codified in Arizona as A.R.S. § 44-2714(B)(2). This section provides:

In all other cases as against its customer, an issuer acting in good faith may honor the draft or demand for payment despite notification from the customer of fraud, forgery or other defect not apparent on the face of the documents but a court of appropriate jurisdiction may enjoin such honor.

Under this section, payment on a letter of credit may be enjoined upon a showing of fraud in the underlying transaction. See, e.g., Prutscher v. Fidelity International Bank, 502 F.Supp. 535 (S.D.N.Y.1980); United Bank, Ltd. v. Cambridge Sporting Goods Corp., 41 N.Y.2d 254, 392 N.Y.S.2d 265, 360 N.E.2d 943 (1976); Sztejn v. Schroeder Banking Corp., 177 Misc. 719, 31 N.Y.S.2d 631 (1942). The issue thus faced by this Court is whether serious questions exist in this litigation with respect to fraud in the transaction underlying the letter of credit contract. Resolution of this question requires, in light of the general principle of independence of letter of credit payment obligations, consideration of the nature and scope of the fraud exception.

Initially, First Interstate and FDIC contend that the fraud in the underlying transaction exception of Article 5 does not apply in this case. These parties point out that the instant letter of credit by its terms recites that it is to be governed by the Uniform Customs and Practice (U.C.P.). Further, A.R.S. § 44-2702(D) provides that the U.C.C. is not to govern any letter of credit made subject to the U.C.P. Despite such statutory provisions, however, courts finding the U.C.P. applicable still recognize a fraud in the underlying transaction exception to the letter of credit independence principle. Such recognition is based both on the fact that pre-code authority supporting the exception continues to govern even where Article 5 is not controlling and that the terms of the U.C.P. are not to the contrary. United Bank, Ltd. v. Cambridge Sporting Goods Corp., 41 N.Y.2d 254, 392 N.Y.S.2d 265, 269-70 n. 2, 360 N.E.2d 943, 947-48 n. 2 (1976); see Stromberg-Carlson Corp. v. Bank Melli Iran, 467 F.Supp. 530, 532 n. 5 (S.D.N.Y.1979); Prutscher v. Fidelity International Bank, 502 F.Supp. 535, 537 (S.D.N.Y.1980). Even though the U.C.P. applies to the letter of credit in this case, the fraud exception still may apply as a basis for injunction of payment.

With respect to the fraud exception itself, plaintiffs rely heavily upon the alleged fraud in the transaction between themselves and Eagle Drilling. This transactional fraud, however, is irrelevant to the motion now before this Court. The letter of credit cases uniformly hold that payment will not be enjoined unless the letter of credit beneficiary is guilty of fraudulent conduct. See, e.g., Stromberg-Carlson Corp. v. Bank Melli Iran, 467 F.Supp. . 530 (S.D.N.Y.1979); Colorado National Bank of Denver v. Board of County Commissioners, 634 P.2d 32, 39 (Colo.1981); Intraworld Industries, Inc. v. Girard Trust Bank, 461 Pa. 343, 336 A.2d 316, 324-25 (1975). The beneficiary under the instant letter of credit is Penn Square Bank, not Eagle Drilling. This Court must therefore scrutinize the allegations of plaintiffs as to the loan obligations to be performed by Penn Square Bank with respect to Eagle Drilling.

One of plaintiffs’ allegations with respect to the Eagle Drilling — Penn Square loan agreement is that the FDIC, as successor in interest to Penn Square, breached a loan commitment of the Penn Square Bank. This breach by FDIC allegedly caused the default by Eagle Drilling on its loan obligations, which in turn led to the FDIC call on the letter of credit. Specifically, plaintiffs maintain that an agreement existed in which 20 per cent of the amount of each loan made to Eagle Drilling was to be held in reserve by Penn Square Bank to be used for making interest payments on the loan. Plaintiffs further allege that Penn Square Bank agreed to advance certain of these funds for an interest payment, but the FDIC, which took control of Penn Square shortly thereafter, reversed the transaction. In support of these allegations, plaintiffs cite specific language in the loan agreement which can be construed to set up a 20 per cent interest reserve. In addition, in support of the agreement by Penn Square to advance funds from this reserve, plaintiffs have submitted an affidavit by the president of Eagle Drilling attesting to this fact and a letter from Eagle Drilling which followed up the agreement.

Based on the above, it is this Court’s opinion that a serious question exists in this litigation as to whether the FDIC in the first instance breached an agreement which caused the Eagle Drilling default. If these allegations are true, a certification under these circumstances by FDIC to First Interstate that it is entitled to call the letter of credit may be fraudulent. The letter of credit may therefore be subject to injunction. Dynamics Corp. v. Citizens and Southern National Bank, 356 F.Supp. 991 (N.D.Ga.1973).

Having determined that questions of a serious nature exist in this action, it remains for this Court to assess the balance of hardships among the parties involved. This Court is of the opinion that the balance of hardships is clearly in the plaintiffs’ favor. Payment of the letter of credit at this stage of the litigation would, if plaintiffs’ allegations prove true, subject the Larsons to an additional loss of $55,000 due to fraud. A delay in payment of this amount is less significant in its impact upon the FDIC. Moreover, First Interstate’s arguments of loss of reputation and commercial honor in the business community and maintenance of the letter of credit as a useful commercial device must also fail. “[T]he failure to issue an injunction where otherwise appropriate would send a clear signal to those inclined to engage in fraudulent activities that they are likely to be rewarded.... there is at least as much public interest in discouraging fraud as in encouraging the use of letters of credit.” Itek Corp. v. First National Bank of Boston, 511 F.Supp. 1341, 1351 (D.Mass.1981). Issuance of a preliminary injunction is therefore appropriate in this action.

IT IS ORDERED:

Plaintiffs’ request for issuance of a preliminary injunction to enjoin payment by First Interstate Bank of Arizona, N.A. of the letter of credit comprising the subject of this action is granted. The existing bond-shall be sufficient and remain in full force and effect. Counsel for plaintiff will promptly submit a form of preliminary injunction for approval by the Court.

      . The U.C.C. and its official comments are silent with respect to the meaning and scope of the fraud in the transaction exception to the independence principle. However, "the legislative history of section 5-114(2) indicates that 'fraud in the transaction' was meant to ... provide for injunctive relief based solely on the beneficiary’s misperformance of the underlying contract.” Note, “Fraud in the Transaction": Enjoining Letters of Credit During the Iranian Revolution, 93 Harv.L.Rev. 992, 1004 (1980). This limited focus upon the conduct of the beneficiary logically makes sense in that it is the sole entity with power to call the letter. An extension of the fraud exception such as that contemplated by plaintiffs in this action would severely compromise the utility of the letter of credit as an independent bank guarantee device. See generally Harfield, Identity Crisis in Letter of Credit Law, 24 Ariz.L.Rev. 239 (1982).


author: CARL B. RUBIN, Chief Judge.

text:
    Robert L. HAINES, Plaintiff, v. GENERAL MOTORS CORP., et al., Defendants.
    No. C-1-82-1402.
    United States District Court, S.D. Ohio, W.D.
    Oct. 26, 1983.
    On Application for Attorney Fees Aug. 8, 1984.
    On Award of Attorneys Fees Dee. 3, 1984.

      C.D. Mullenix, Cincinnati, Ohio, for plaintiff.
    Thomas R. Schuck, Mark E. Elsener, Cincinnati, Ohio, Greg Holmes, Asst. Atty. Gen., Frankfort, Ky., for defendants.
   ORDER

CARL B. RUBIN, Chief Judge.

This matter is before the Court on the Motions of defendants Richard Jarvis, Donna Haines, General Motors Corp. and Daniel Wall to Dismiss the Complaint for Lack of Subject Matter Jurisdiction. Fed.R. Civ.P. 12(b)(1). The named defendants as well as Ed Schroeder additionally move to dismiss for failure to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). Defendants General Motors Corp. and Mr. Wall also move for summary judgment under Rule 56, Fed.R.Civ.P. Finally, Mrs. Haines asserts a counterclaim for the child support judgment she was awarded in the Kenton Circuit Court of Kenton County, Kentucky. Haines v. Haines, No. 26137 (Ky.Cir.Ct. June 7, 1982).

Plaintiff Robert Haines contends that the defendants, while acting under color of state law, have violated his right to due process provided by the Fourteenth Amendment to the United States Constitution when his wages were garnished under Kentucky law without prior notice or hearing. Plaintiff presents claims based on 42 U.S.C. § 1983 and 15 U.S.C. § 1671 et seq., as well as several pendent state claims. The defendants in this action are: Robert Haines, plaintiff and judgment debtor; Donna Haines, former wife of plaintiff and judgment creditor; Richard Jarvis, attorney for Mrs. Haines; Ed Schroeder, Clerk of Kenton County, Kentucky Circuit Court; General Motors Corp., employer and garnishee of plaintiff, and; Daniel Wall, a General Motors’ employee who withheld the wages.

I. Subject Matter Jurisdiction

The Complaint states that the Court has federal jurisdiction over the case pursuant to 42 U.S.C. § 1983 and 15 U.S.C. § 1671 et seq. As the defendants point out, neither of these statutes is jurisdictional in nature. The Complaint does not refer to 28 U.S.C. § 1343(3) or § 1331 which do confer jurisdiction. “It is well settled that the recitation of a statute can neither deprive a court of jurisdiction nor confer jurisdiction upon it.” Beeler v. United States, 338 F.2d 687, 689 (3d Cir.1964). The plaintiff does allege operative facts showing the grounds of federal jurisdiction under 42 U.S.C. § 1983 and the Court views plaintiff’s failure to cite 28 U.S.C. § 1343(3) as an insufficient ground to dismiss the Complaint for lack of subject matter jurisdiction. Olitsky v. O’Malley, 453 F.Supp. 1052 (D.Mass.1978), affd, 597 F.2d 295 (1st Cir.1979); Harris v. Arizona Board of Regents, 528 F.Supp. 987 (D.Ariz.1981); Fed. R.Civ.P. 8(a)(1); See Blanchard v. Terry & Wright, Inc., 331 F.2d 467, 468 (6th Cir. 1964). Since plaintiff’s claim is not wholly insubstantial and frivolous, this Court has federal jurisdiction over the claim asserted under 42 U.S.C. § 1983. Baker v. Carr, 369 U.S. 186, 199, 82 S.Ct. 691, 700, 7 L.Ed.2d 663 (1962); Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946).

Plaintiff’s claim under the Consumer Credit Protection Act, 15 U.S.C. § 1671 is a different matter. Here, plaintiff fails to allege facts which demonstrate federal jurisdiction to consider this claim. Plaintiff contends that the percentage of his wages garnished exceeded the amount permitted under the statute. A specific exemption from this ceiling, however, is provided in the Act for any order for the support of any person issued by a court of competent jurisdiction which affords substantial due process and is subject to judicial review. 15 U.S.C. § 1673(b)(1)(A). Mr. Haines’ wages were withheld pursuant to a court order requiring him to pay child support arrears. No claim was made that the Kentucky Court did not afford him due process at this hearing nor that the Order was not subject to judicial review. Thus, plaintiff’s claim under 15 U.S.C. § 1671 et seq. is clearly devoid of merit and it is dismissed for lack of subject matter jurisdiction. Baker, 369 U.S. at 199, 82 S.Ct. at 700; Bell, 327 U.S. at 682-83, 66 S.Ct. at 776; Snapp v. United States Postal Service, 664 F.2d 1329, 1331 (5th Cir.1982); Fed.R. Civ.P. (12)(b)(1).

II. Summary Judgment

Once the Court has the jurisdictional power to hear the case, it is a separate matter whether the Complaint states a claim upon which relief may be granted. When matters outside the pleadings are presented to and not excluded by the Court, the Motion to Dismiss for Failure to State a Claim is regarded as a Motion for Summary Judgment. Hildebrand v. Board of Trustees, 607 F.2d 705, 709-710 (6th Cir.1979).

The summary judgment standard in this Circuit is a stringent one. Rule 56(c) permits the Court to grant summary judgment when there is no genuine issue of material fact and when the moving party is entitled to judgment as a matter of law. Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 64 S.Ct. 724, 88 L.Ed. 967 (1944); Tee-Pak, Inc. v. St. Regis Paper Co., 491 F.2d 1193, 1195 (6th Cir.1974). In deciding a Motion for Summary Judgment, the Court must construe evidence in a light least favorable to the movant and most favorable to the opposing party. Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425, 427 (6th Cir.1962). The Court must exercise extreme caution in disposing of complex cases on a Motion for Summary Judgment. S.J. Groves & Sons Co. v. Ohio Turnpike Commission, 315 F.2d 235, 237 (6th Cir.1963), cert. denied, 375 U.S. 824, 84 S.Ct. 65, 11 L.Ed.2d 57 (1963).

This case, not presenting any genuine issues of material fact, contains the following background. Mr. and Mrs. Haines resided in Kentucky, after marrying in 1964, until 1975 when Mr. Haines became an Ohio resident. On January 28, 1974, Mrs. Haines filed a Petition for Divorce in the Kenton County, Kentucky Circuit Court. On November 21, 1974, the marriage was dissolved and Mr. Haines was ordered to pay $250.00 in temporary support arrears and $70.00 per week child support for their two minor children. Haines v. Haines, No. 26137 (Ky.Cir.Ct. Nov. 21, 1974). Subsequently, plaintiff became delinquent in his support payments which resulted in litigation. On August 5,1978, plaintiff executed a wage assignment for the child support payments pursuant to the Order of the Kenton County Court. Although General Motors had withheld $35.00 per week plus poundage for plaintiff’s child support obligation pursuant to the Order, the child support arrearage was not yet paid and continued to remain so. (Affidavit of Haines, pps. 12-18).

On June 7, 1982, the Kentucky Court entered an order awarding a lump sum judgment for child support arrearage in the amount of $2,300.00. Haines v. Haines, No. 26137 (Ky.Cir.Ct. June 7, 1982). Both the plaintiff and Mrs. Haines were present at the hearing which resulted in the judgment ordering payment of the child support arrears. (Affidavit of Haines, pps. 23-23). Although there was no action taken by plaintiff to amend, vacate or appeal the judgment, the arrearage was not paid. Several months later Jarvis, acting in his capacity as attorney for Mrs. Haines, filed an Affidavit with Schroeder, Clerk of the Kentucky Court, seeking garnishment of plaintiff’s wages for the $2,300.00 arrears, pursuant to Kentucky Revised Statutes § 425.501. Haines v. Haines, No. 26127 (Ky.Cir.Ct., Sept. 27, 1982). The Court issued a Garnishment Order which was served on General Motors’ designated agent in Louisville, Kentucky. A copy of the Garnishment Order was delivered to plaintiff at work by his supervisor on October 5, 1982. General Motors withheld $99.23 from plaintiff’s wages and the sum was paid to the Kentucky Court on October 8, 1982. The second garnishment occurred on October 29, 1982 and the third on November 16, 1982, with the plaintiff receiving notice of the garnishment each time. At no time during the garnishment procedure did plaintiff claim an exemption as provided in K.R.S. §§ 425.501(4), 427.050(2).

In determining whether the movant is entitled to judgment as a matter of law, the initial inquiry in a 42 U.S.C. § 1983 action must focus on whether the conduct complained of was committed by a person acting under color of state law and whether this conduct deprived a person of rights, privileges or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 532, 101 S.Ct. 1908, 1911, 68 L.Ed.2d 420 (1981). We will deal with these issues in reverse order.

Plaintiff contends that the garnishment proceedings fail to satisfy the Due Process Clause of the Fourteenth Amendment. Under the applicable Kentucky statute, a post-judgment Order of Garnishment is available to the creditor upon filing an Affidavit with the Clerk of Court. K.R.S. § 425.501. The Order of Garnishment must be served on the garnishee and a copy of it mailed or delivered by the garnishee to the judgment debtor. K.R.S. §§ 425.501, 425.506. The law additionally provides that the judgment debtor may, on return day, appear and claim any exemption from the garnishment. K.R.S. § 425.-501. However, no exemption exists for garnishment of wages when it is pursuant to a Court Order for support. K.R.S. § 427.010(3)(a).

The issue at bar is factually distinguishable from the pre-judgment deprivation line of authority proposed by plaintiff as controlling and is rather governed by the Supreme Court decisions addressing post-judgment actions. In Endicott, the Court held that due process did not require notice and an opportunity to be heard before the issuance of an ex parte writ to garnish a judgment debtor’s wages. Endicott Johnson Corp. v. Encyclopedia Press, Inc., 266 U.S. 285, 45 S.Ct. 61, 69 L.Ed. 288 (1924). A defendant who has been granted an opportunity to be heard, has had his day in court and after judgment has been rendered against him is not entitled to further notice and hearing before supplemental proceedings are taken to reach his property in satisfaction of the judgment. Id. at 288, 45 S.Ct. at 62. The defendant must take notice of what will follow the judgment and no further notice is necessary to advance justice. Id.

The Endicott principle was a basis for judgment in a later Supreme Court case. The plaintiff in Griffin obtained a 1926 modifiable judgment for divorce and alimony of $3,000.00 per year, payable in installments in a contested proceeding against the defendant. Griffin v. Griffin, 327 U.S. 220, 223, 66 S.Ct. 556, 558, 90 L.Ed. 635 (1946). Subsequently, the defendant moved his residence out of state and became delinquent in his alimony payments. Id. In 1935, plaintiff and defendant contested the issues of the alimony arrearage and defendant’s alleged inability to pay the judgment. Id. at 223-24, 66 S.Ct. at 558-59. The 1936 Court Order awarded $18,500 for alimony arrears accrued from 1926 to October 25, 1935 plus interest to plaintiff. Id. at 224, 66 S.Ct. at 558. Plaintiff, in 1938, was granted a judgment for $25,-000.00 for arrears due from 1926 through 1938 in an ex parte execution proceeding where defendant received no notice. Id. at 224-25, 66 S.Ct. at 558-59.

Noting that the lawsuit in Griffin was based not on the 1926 decree but on the 1938 ex parte judgment, the Court distinguished between the enforcement of a judgment obtained with notice and an opportunity for a hearing and the enforcement of a judgment rendered without those elements. Id. at 229, 235, 66 S.Ct. at 560, 563; Brown v. Liberty Loan Corp., 539 F.2d 1355, 1364 (5th Cir.1976). That portion of the 1938 judgment which awarded alimony and interest arising after October 25, 1935 pursuant to a proceeding not providing notice or an opportunity for a hearing was reversed. Griffin, 327 U.S. at 233, 66 S.Ct. at 562. The 1938 judgment was affirmed insofar as it confirmed the 1936 adjudication of the alimony and interest due as of October 25, 1935. Id. at 229, 66 S.Ct. at 560. “Due process does not require that notice be given before the confirmation of rights theretofore established in a proceeding of which adequate notice was given.” Id. at 233-34, 66 S.Ct. at 562-63.

In this case, a 1974 judgment dissolved the plaintiff’s marriage and ordered him to pay arrears and $70.00 per week for child support. Following plaintiff’s further delinquency in payments, Mrs. Haines, in June, 1982, sued for the total of $2,300.00 arrears in the contested proceeding in which plaintiff had notice and an opportunity to be heard. The September, 1982 ex parte writ of garnishment was only for the $2,300.00 amount which was previously adjudicated in the June contested hearing at which plaintiff appeared. These facts are strikingly similar to those of Griffin where the Court upheld the portion of the 1938 ex parte proceedings for the $18,500.00 alimony arrearage which had been fully adjudicated in the 1935 contested hearing. Id. Therefore, under the principles established by the Supreme Court in Endicott and Griffin, plaintiff’s Constitutional right to procedural due process was not violated when his wages were garnished following a fully contested proceeding in which he had notice and an opportunity to be heard. Griffin, 327 U.S. at 220, 66 S.Ct. at 556; Endicott, 266 U.S. at 285, 45 S.Ct. at 61. As a result of plaintiff’s failing one prong of the test under 42 U.S.C. § 1983, the inquiry is terminated and need not focus on the state action issue.

III. Counterclaim

Mrs. Haines asserts a counterclaim against the plaintiff for the judgment she was awarded for child support arrears. Haines v. Haines, No. 26137 (Ky.Cir.Ct. June 7, 1982). Plaintiff concedes in his Answer that the Kenton County Court exercised personal jurisdiction over him as well as subject matter jurisdiction over the divorce action and any subsequent domestic proceedings.

At the May hearing leading to the June 7, 1982 judgment, both plaintiff and Mrs. Haines appeared with assistance of counsel. (Affidavit of Haines, pps. 23-24). Mrs. Haines had moved for a lump sum judgment of $2,300.00 in child support arrears and plaintiff had moved for a termination of support. After addressing both Motions, the Court denied plaintiffs Motion but awarded Mrs. Haines the $2,300.00 judgment.

The June Order, having not been appealed or modified, became a Final Judgment. Haines v. Haines, No. 26137, p. 1 (Ky.Cir.Ct. June 7, 1982); Stewart v. Raikes, 627 S.W.2d 586, 587 (S.Ct.Ky.1982); Whitby v. Whitby, 306 Ky. 355, 208 S.W.2d 68, 69 (1948), overruled in part on other grounds, Knight v. Knight, 341 S.W.2d 59 (Ct.App.Ky.1960).

Because a court of competent jurisdiction has entered a Final Judgment on the merits of the cause of action, the plaintiff and Mrs. Haines as parties to the suit are bound by the judgment under the doctrine of res judicata. Commissioner v. Sunnen, 333 U.S. 591, .597, 68 S.Ct. 715, 719, 92 L.Ed. 898 (1948). The parties are precluded from relitigating the issues raised or those which could have been raised in the action. Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 2427, 69 L.Ed.2d 103 (1981). Therefore, the counterclaim is dismissed.

IV. Conclusion

In sum, plaintiffs claim under the Consumer Credit Protection Act is hereby DISMISSED for lack of subject matter jurisdiction. After reading the evidence in the light most favorable to the plaintiff, the defendants have shown conclusively that there exists no genuine issue as to material fact and that they are entitled to judgment as a matter of law. Accordingly, the defendants’ Motion for Summary Judgment is hereby GRANTED. Mrs. Haines’ counterclaim is hereby DISMISSED. Finally, as a result of dismissing the federal claims prior to trial, the pendent state claims are hereby DISMISSED without prejudice. United Mine Workers v. Gibbs, 383 U.S. 715, 727, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966); Nash & Assoc., Inc. v. Lum’s of Ohio, Inc., 484 F.2d 392, 395-96 (6th Cir.1973).

IT IS SO ORDERED.

ON APPLICATION FOR ATTORNEY FEES

This matter is before the Court on the Application for Attorney Fees by defendants General Motors Corporation (doc. no. 50), Daniel P. Wall (doc. no. 50), Richard Jarvis (doc. no. 51) and Donna Haines (doc. no. 52). This matter originally commenced in the state courts of Kentucky and involved an alleged arrearage of payments ordered by a state court. At no time has there been any dispute that the Kentucky courts had authority to enter such judgment or that garnishment proceedings existed under applicable Kentucky law.

Plaintiff and plaintiff’s counsel elected to bring action against the General Motors Corporation and its Payroll Officer, Daniel Wall, Richard Jarvis as attorney for Donna Haines, the garnishing party, and Donna Haines. In an Order dated October 22, 1983, (doc. no. 37), this Court found that plaintiff’s cause of action under the Consumer Credit Protection Act, 15 U.S.C. § 1671, was “clearly devoid of merit.” Such claim was dismissed for lack of subject matter jurisdiction. (Doc. No. 37). Plaintiff’s claim under 42 U.S.C. § 1983 was disposed of in the Order by the granting of summary judgment. (Id.).

This matter as it relates to the four persons seeking attorney fees clearly comes within the admonition of the United States Court of Appeals for the Sixth Circuit in Tonti v. Petropoulous, stating that “[t]his litigation represents yet another misuse of 42 U.S.C. § 1983 in an attempt to obtain federal jurisdiction. This civil rights statute was never intended as a catch-all under which a myriad of suits traditionally within the exclusive jurisdiction of state courts can be brought in the federal courts.” 656 F.2d 212, 216 (6th Cir.1981). Mr. Haines had ample opportunity to proceed within the state courts of Kentucky and elected instead to bring an action in the United States District Court against the General Motors Corporation and its Payroll Officer whose only activity had been a response to a lawful order of the state court and against Mr. Jarvis who acted, so far as the record indicates, appropriately as attorney for Donna J. Haines. An action such as this against such persons is clearly vexatious, unreasonable and without foundation.

Accordingly, the Motions of defendants General Motors, Daniel P. Wall, Richard A. Jarvis and Donna Haines for Attorney Fees are hereby GRANTED and counsel for such defendants are hereby DIRECTED to submit to the Court within 30 days of the date of this Order an itemized list of time expended and reasonable charges therefor. Such counsel are advised that the Court will follow the procedure outlined in Northcross v. Board of Education, 611 F.2d 624 (6th Cir.1980), cert. denied, 447 U.S. 911, 100 S.Ct. 2999, 64 L.Ed.2d 862 (1980).

The memoranda filed by defendants suggest conduct by plaintiff’s counsel that might make him liable for the payment of attorney fees pursuant to 28 U.S.C. § 1927. Accordingly, plaintiff's counsel, Charles D. Mullenix, is hereby DIRECTED to show cause in writing within 15 days of the date of this Order why attorney fees should not likewise be assessed against him.

IT IS SO ORDERED.

ON AWARD OF ATTORNEY FEES

This matter is before the Court under the following circumstances. Plaintiff Robert L. Haines brought action against Defendants General Motors Corporation, Richard A. Jarvis, Donna J. Haines, Daniel P. Wall and Ed F. Schroeder. Plaintiff asserted several causes of action arising out of the garnishment of his wages to satisfy a judgment entered in the state courts of Kentucky.

On October 26,1983, this Court issued an Order granting summary judgment to the Defendants (Doc. 37). Plaintiff asserted causes of action under 42 U.S.C. Section 1983 and 15 U.S.C. Section 1671 et seq. Of specific significance to the matter at hand is a determination by the Court that the cause of action asserted under 15 U.S.C. Section 1671 et seq. (1982) is “clearly devoid of merit and it is dismissed for lack of subject matter jurisdiction....” That Order of this Court set forth in detail the factual background of this case. Applications for attorney fees were subsequently filed, and on August 8, 1984, this Court by Order (Doc. 53) granted attorney fees in principle and directed that the parties submit an appropriate request pursuant to Northcross v. School Board of Memphis, 611 F.2d 624, 626 (6th Cir.1980). The Court likewise considered the suggestion of Defendants that the conduct of Plaintiff’s counsel might make him liable for payment of attorney fees pursuant to 28 U.S.C. Section 1927 (1982). Plaintiff’s counsel was thereupon directed to show cause in writing why attorney fees should not likewise be assessed against him.

Plaintiff’s counsel on August 21, 1984 submitted a memorandum in regard to such attorney fees (Doc. 56). Subsequently counsel for Defendants Richard A. Jarvis, Donna J. Haines, General Motors Corporation and Donald P. Wall submitted requests for specific attorney fees.

Fees under 42 U.S.C. Section 1983 (1982) are awarded to the prevailing party pursuant to 42 U.S.C. Section 1988 (1982). An award, however, to a prevailing defendant is considered under more stringent standard than an award to a prevailing plaintiff. See Christianburg Garment Company v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978).

42 U.S.C. Section 1988 is not exclusive authority for such awards. The Supreme Court of the United States has recognized that attorney fees may be awarded where a person has “acted in bad faith, vexatiously, wantonly or for oppressive reasons”. F.D. Rich Company v. Industrial Lumber, 417 U.S. 116, 94 S.Ct. 2157, 40 L.Ed.2d 703 (1974).

It is arguable, although only barely so, that Plaintiff’s conduct pursuant to 42 U.S.C. Section 1983 does not warrant an award of attorney fees. It is not so arguable in regard to 15 U.S.C. Section 1671, the Consumer Credit Protection Act. That action was utterly devoid of merit and clearly vexatious.

The role of an attorney in a proceeding of this sort bears some examination. An attorney is not a mere scrivener. He does not produce pleadings at the whim of a client. He counsels and advises based upon his superior knowledge of which causes of action are meritorious and which are not. His responsibility to a client is not only to pursue legitimate claims with vigor, but to avoid filing meritless claims only to harass one’s opponent. This balance is a professional obligation and should serve to separate the profession of law from the activities of the marketplace. An attorney who counsels and elects to participate in a cause of action that is clearly without merit does not do so from sanctuary. He bears a responsibility and, in the appropriate circumstances, attorney fees may be assessed against him as well.

The Court concludes that insofar as a claim was pursued under the Consumer Credit Protection Act both the Plaintiff and Plaintiff’s counsel acted improperly.

This does not end the matter. This finding requires an attempt to divide defense counsel’s activities between the two claims. The Court has examined the statements of fees (Docs. 59, 60, 61 and 62) and is unable completely to separate the two activities. In the examination of the fee requests, the Court determines that the total requested amount is reasonable, both as to amount per hour and the number of hours expended. Were the Court to determine that attorney fees should likewise be assessed for the Section 1983 claims, the total amount requested would be approved.

A division such as this is extremely difficult and approaches an arbitrary determination. From an examination of the pleadings in this matter, it appears to the Court that the substantial majority of activity was conducted in accordance with 42 U.S.C. Section 1983. Upon such conclusion, the Court finds that ten percent of the activities involved the Consumer Credit Protection Act.

Counsel for Defendants General Motors Corporation and Daniel P. Wall have presented a statement of attorney fees in the amount of $17,292.50 together with $762.10 in costs. The Court does award such counsel $1,729.25 together with $762.10 costs for a total award of $2,491.35.

Counsel for Richard A. Jarvis have presented a statement for attorney fees of $3,477.50 together with $55.15 costs and the Court will award attorney fees of $347.75 and costs of $55.15 for a total award to such counsel of $402.90.

Counsel for Defendant Donna J. Haines has submitted a bill of $3,536.00 together with $36.66 costs and such counsel will be awarded $353.60 for attorney fees plus $36.66 costs for a total award of $390.26.

A total award of $3,284.51 divided as above set forth is hereby entered against Robert L. Haines, Plaintiff and against C.D. Mullenix, his attorney.

IT IS SO ORDERED.

      . The defendant was a resident of Kentucky at the time the debt and cause of action arose. (Affidavit of Haines, pps. 8, 12, 16-18, 24-24). K.R.S. § 427.050; Hamilton v. Hamilton, 476 S.W.2d 197, 201 (Ky.1972).

      . K.R.S. § 425.501 provides in part:
      (1) Any person in whose favor a final judgment in personam has been entered in any court of record of this state may, upon the filing of an affidavit by him or his agent or attorney in the office of the clerk of the court in which said judgment was obtained showing the date of the judgment and the amount due thereon, and that one or more named persons hold property belonging to, or are indebted to, the judgment debtor, obtain an order of garnishment directed to the sheriff, with as many copies as the plaintiff may direct, requiring him to summon the garnishees named in the affidavit to answer in the manner and at the time required for an answer by the Rules of Civil Procedure, and to make due return thereof. The order shall be made refumable as an order of arrest is directed to be returned ...
      (3) The order of garnishment shall be served on the persons named as garnishees, and in addition a copy thereof shall be delivered by the garnishee to the judgment debtor or mailed to him at his last known address.
      (4) The judgment debtor may on the return day, appear and claim the exemption of any property or debt that is exempt from execution, and on proof of exemption the garnishment shall be discharged as to the exempt property or debt.
      (5) If the court finds the garnishee was, at the time of service of the order upon him, possessed of any property of the judgment debt- or, or was indebted to him, and the property or debt is not exempt from execution, the court shall order the property or the proceeds of the debt applied upon the judgment.
      (6) Subsequent orders of garnishment against the same or other garnishees may be issued in the same manner until the judgment is satisfied ...

      . Although other courts outside the Sixth Circuit have found the Supreme Court case of Endicott undermined by contemporary authority on procedural due process, this Court is bound to follow such controlling caselaw when it has not been overruled. See Finberg v. Sullivan, 634 F.2d 50, 56 (3d Cir.1980); Brown, 539 F.2d at 1364-65.