author: DAVID V. O’BRIEN, District Judge.

text:
    GOVERNMENT OF the VIRGIN ISLANDS, Plaintiff, v. Anthony PAMPHILE, Defendant. Anthony PAMPHILE, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
    Crim. No. 82/133.
    District Court, Virgin Islands, D. St. Croix.
    March 18, 1985.
    Andrew J. Reich, Asst. U.S. Atty., St. Croix, V.I., for plaintiff and respondent.
    Brian L. Masony, St. Croix, V.I., for Anthony Pamphile.
   MEMORANDUM AND ORDER

DAVID V. O’BRIEN, District Judge.

This case is before the Court on defendant Anthony Pamphile’s (“Pamphile”) motion to withdraw his guilty plea. Pamphile argues that his guilty plea should be set aside on the basis that his counsel, at the time he pled guilty, was ineffective in failing to advise him that his guilty plea could render him subject to deportation.

We find deportation is a “collateral” consequence of pleading guilty. The failure of a defense attorney to inform a defendant of possible or mandatory deportation, prior to entry of a valid guilty plea, does not render such plea subject to attack under Fed.R.Crim.P. 32(d) or 28 U.S.C. § 2255. We deny the defendant’s motion to withdraw his guilty plea.

I. FACTS

On September 23, 1982, Pamphile was charged with assault in the first degree and possession of a sawed-off shotgun during the commission of a crime of violence. After plea negotiations, Pamphile pled guilty to assault in the third degree and to possession of a sawed-off shotgun. He was never told that if he pled guilty to the charge of possession of a sawed-off shotgun he could be deported. 8 U.S.C. § 1251(a)(14).

In December 1982 Pamphile was sentenced to four (4) years on the assault third degree count and two (2) years on the possession of a sawed-off shotgun count, the sentences to run concurrently.

In September, 1983, the Immigration and Naturalization Service secured a deportation order against Pamphile under 8 U.S.C. § 1251(a)(14). The Virgin Islands Parole Board then granted Pamphile an early release which made him subject to deportation on January 22, 1985.

The Court held an emergency hearing on January 21,1985 at which time the issue of ineffective assistance of counsel was raised. We ordered a stay in the immigration proceedings pending the outcome of a second hearing held on February 13, 1985.

II. DISCUSSION

A) Rule 11 Hearing

It is clear that a District Court is not required to inform a defendant that one of the consequences of his decision to plead guilty could be deportation. United States v. Russell, 686 F.2d 35, 39 (D.C.Cir.1982); Fruchtman v. Kenton, 531 F.2d 946, 949 (9th Cir.1976), cert. denied, 429 U.S. 895, 97 S.Ct. 256, 50 L.Ed.2d 178 (1976); Cordero v. United States, 533 F.2d 723, 726 (1st Cir.1976); Michel v. United States, 507 F.2d 461, 465 (2d Cir.1974); United States v. Santelises, 476 F.2d 787, 789 (2d Cir.1973).

A defendant must be informed of the direct consequences, not the collateral consequences, of a guilty plea in order to voluntarily and intelligently plead guilty. Russell, supra, at 38; United States v. King, 618 F.2d 550, 552 (9th Cir.1980); Johnson v. Dees, 581 F.2d 1166, 1166 (5th Cir.1978); Fruchtman, supra, at 948-49; Cordero, supra, at 726; Michel, supra, at 465. Deportation is a collateral consequence and therefore need not be included in the Rule 11 litany of direct consequences of a plea of guilty. Russell, supra, at 39; Fruchtman, supra, at 949; Cordero, supra, at 726; Michel, supra, at 465.

B) Ineffective Assistance of Counsel

1) Standard for Collateral Review

A more troublesome issue concerns the argument first raised at the emergency hearing — that Pamphile’s plea should be withdrawn because his counsel failed to inform him of the possibility of deportation should he plead guilty. This issue, though not novel, is one of first impression in a number of jurisdictions including the Virgin Islands.

We note that the defendant has not only moved to withdraw his guilty plea under Fed.R.Crim.P. 32(d) but has also filed a motion to vacate his sentence under 28 U.S.C. § 2255. Fed.R.Crim.P. 32(d) was amended in 1983 and now states:

If a motion for withdrawal of a plea of guilty or nolo contendré is made before sentence is imposed, imposition of sentence is suspended, or disposition is had under 18 U.S.C. § 4250(c), the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason. At any later time, a plea may be set aside only on direct appeal or by motion under 28 U.S.C. § 2255.

Pamphile has proceeded too late to obtain the more generous “fair and just reason” standard for presentence relief under Rule 32(d) and therefore must seek relief via § 2255. Relief may be had under § 2255 when there has been “a fundamental defect which inherently results in a complete miscarriage of justice” or “an omission inconsistent with the rudimentary demands of fair procedure.” Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962).

2) Standard for Ineffective Assistance of Counsel

Since Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) a defendant pleading guilty to a felony charge has a federal right to the assistance of counsel. See Arsenault v. Massachusetts, 393 U.S. 5, 89 S.Ct. 35, 21 L.Ed.2d 5 (1968); White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963). This right to counsel has long been recognized as a right to the effective assistance of counsel. See Reece v. Georgia, 350 U.S. 85, 90, 76 S.Ct. 167, 170, 100 L.Ed. 77 (1955); Glasser v. United States, 315 U.S. 60, 69-70, 62 S.Ct. 457, 464-465, 86 L.Ed. 680 (1942); Avery v. Alabama, 308 U.S. 444, 446, 60 S.Ct. 321, 322, 84 L.Ed. 377 (1940); Powell v. Alabama, 287 U.S. 45, 47, 53 S.Ct. 55, 56, 77 L.Ed. 158 (1932). The standard for determining the adequacy of legal services is whether the attorney has exercised the customary skill and knowledge which normally prevails at that time and place. United States v. Williams, 615 F.2d 585, 593-94 (3d Cir.1980).

Pamphile has the burden of proving that his counsel was ineffective, Williams, supra, at 594 (citing United States ex rel. Johnson v. Johnson, 531 F.2d 169, 174 (3d Cir.), cert. denied, 425 U.S. 997, 96 S.Ct. 2214, 48 L.Ed.2d 823 (1976)); United States v. Tiler, 602 F.2d 30, 35 (2d Cir.1979) and must demonstrate that the advice of his counsel was “not within the range of competence demanded of attorneys in criminal cases” in order to be entitled to collateral relief. Tollett v. Henderson, 411 U.S. 258, 266, 93 S.Ct. 1602, 1607, 36 L.Ed.2d 235 (1973); (criminal defendant who pleads guilty on the advice of counsel is not automatically entitled to federal collateral relief on proof that the indicting grand jury was unconstitutionally selected). (citing McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970)); VIA v. Superintendent, Powhatan Correctional CTR, 643 F.2d 167, 171 (4th Cir.1981).

3) Effective Assistance of Counsel for Defendants who Plead Guilty

An ineffective assistance of counsel argument is immaterial in an attempt to impeach a plea of guilty except to the extent that it bears on the issues of voluntariness and understanding. Lee v. Hopper, 499 F.2d 456, 462 (5th Cir.), cert. denied, 419 U.S. 1053, 95 S.Ct. 633, 42 L.Ed.2d 650 (1974) (citing Edwards v. United States, 103 U.S.App.D.C. 152, 256 F.2d 707, 709-710, cert. denied, 358 U.S. 847, 79 S.Ct. 74, 3 L.Ed.2d 82 (1958)).

This Court has been unable to discover any cases where a federal court has granted collateral relief to a prisoner, based on an involuntary plea, because counsel failed to inform the defendant that deportation could occur should he plead guilty. Although a few state jurisdictions' do allow such relief, we believe the better rule is to deny collateral relief in such circumstances.

We believe that the attorney’s failure to inform Pamphile of the possibility of deportation does not cause Pamphile’s guilty plea to be involuntary. A variety of cases support our holding.

In United States v. Parrino, 212 F.2d 919 (2d Cir.) cert. denied, 348 U.S. 840, 75 S.Ct. 46, 99 L.Ed. 663 (1954) the defendant moved under Rule 32(d) to withdraw his guilty plea after he had served most of his two (2) year sentence. Prior to changing his plea the defendant’s attorney told him that a guilty plea would not subject him to deportation. The Second Circuit held that surprise which results from erroneous information received from the defendant’s own attorney, without a clear showing of unprofessional conduct, is not enough to set aside a conviction. The Court stated:

Moreover, here the subject matter of the claimed surprise was not the severity of the sentence directly flowing from the judgment but a collateral consequence thereof, namely deportability____ We think it plainly unsound to hold, as now in principle we are urged to hold, that such defendants are subjected to manifest injustice, if held to their plea, merely because they did not understand or foresee such collateral consequences.

Parrino, supra at 921-22.

If erroneous information concerning deportability is not sufficient to allow a defendant to withdraw his guilty plea, then the failure to inform a defendant about deportability should not be sufficient to allow Pamphile the collateral relief he seeks.

In United States v. Sambro, 454 F.2d 918 (D.C.Cir.1971), the defendant’s attorney erroneously informed him about the legal effect of his guilty plea on his chances of being deported. Once deportation proceedings began, the defendant sought to withdraw his guilty plea. The D.C. Circuit held that the District Court Judge had not abused her discretion by refusing to allow the defendant to withdraw his guilty plea. The Court emphasized that the original plea was properly taken and that the defendant never repudiated the prior plea. The Court stated “a plea of guilty is a confession in open court as to the facts alleged: in the instant case appellant Sambro has made such a confession, has said nothing whatever to repudiate it, nor has he claimed any legal defense to the charge.” Sambro, supra, at 922-21. The Sambro Court also cited its earlier decision in Briscoe v. United States, 129 U.S.App.D.C. 146, 391 F.2d 984 (1968) stating:

This court confronted a converse situation in Briscoe where appellant sought to set aside his guilty plea as involuntary. While the case was remanded for determination of the voluntariness of his guilty plea on other grounds, this court held, “We do not accept appellant’s contention that his guilty plea must be set aside as involuntary because it was induced by his misunderstanding, in that he thought he was in fact to be deported.

Sambro, supra, at 923.

In Vizcarra-Delgaldillo v. United States, 395 F.2d 70 (9th Cir.1968) defense counsel erroneously believed the trial court had the discretion to spare the defendant from deportation. In fact the relevant statute provided that deportation was mandatory and the trial court had no authority to recommend that the defendant not be deported. The Ninth Circuit affirmed the District Court’s denial of § 2255 relief and held the defendant had received effective assistance of counsel.

In United States v. Russell, supra, at 39 the D.C. Circuit stated “it has frequently been held that defendants are not entitled to withdraw pleas under Rule 32(d) merely because they misunderstood the possible consequences for deportation.”

United States v. Russell, supra, identifies three considerations which District Courts should use as guides when exercising judicial discretion under rule 32(d).

The first is the strength of the defendant’s reason for withdrawing the plea, including whether the defendant asserts his innocence of the charge. The second is the possible existence of prejudice to the government’s case as a result of the defendant’s untimely request to stand trial. Finally, the trial court must consider whether the defendant’s misunderstanding of the collateral consequences of the plea is the result of misleading statements by governmental authorities or the defendant’s own ignorance.

US. v. Russell, supra, at 39.

Applying these factors to the present case, we find these factors all militate against Pamphile’s claim for collateral relief. First, the defendant has never asserted his innocence to the charge. At the time fixed for trial the Government had an overwhelming array of evidence against Pamphile. Second, the Government might be greatly prejudiced should we now allow Pamphile to stand trial. The events which would be at issue occurred two and one-half years ago. To expect the prosecution to resurrect a case left dormant for so long might be unfair. Finally, it is clear that Pamphile’s misunderstanding of the collateral consequences of the plea is not the result of any misleading statements by the government but solely due to the defendant’s ignorance and the ignorance of his counsel.

In summary we find that the failure of Pamphile’s attorney to inform Pamphile about the possibility of deportation does not render Pamphile’s plea involuntary. We will therefore deny collateral relief under § 2255.

      . Fed.R.Crim.P. 11(c) states:
      (c) Advice to Defendant. Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally -in open court and inform him of, and determine that he understands, the following:
      (1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law, including the effect of any special parole term; and
      (2) if the defendant is not represented by an attorney, that he has the right to be represented by an attorney at every stage of the proceeding against him and, if necessary, one will be appointed to represent him; and
      (3) that he has the right to plead not guilty or to persist in that plea if it has already been made, and he has the right to be tried by a jury and at that trial has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself; and
      (4) that if his plea of guilty or nolo contendere is accepted by the court there will not be a further trial of any kind, so that by pleading guilty or nolo contendere he waives the right to a trial; and
      (5) if the court intends to question the defendant under oath, on the record, and in the presence, of counsel about the offense to which he has pleaded, that his answers may later be used against him in a prosecution for perjury or false statement.

      . Old Rule 32(d) stated:
      A motion to withdraw a plea of guilty or nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may be set aside the judgment of conviction and permit the defendant to withdraw his plea.

      . The 1983 amendment to Rule 32(d) was intended to clarify the confusion which existed under the old rule. The old rule did not articulate any standard for presentence relief, the only standard mentioned in that rule was the "manifest injustice” standard which applied to post-sentence relief.
      The 1983 amendments include the "fair and just reason” standard for presentence relief but post-sentence relief must be sought by direct appeal or motion under 28 U.S.C. § 2255.
      There is authority that the old Rule 32(d) "manifest injustice” standard is indistinguishable from the § 2255 "complete miscarriage of justice” standard. United States v. Hamilton, 553 F.2d 63 (10th Cir.1977). The end results are often the same in § 2255 and Rule 32(d) guilty plea cases. The comments to amended Rule 32(d) state
      Relief has often been granted or recognized as available via either of these routes for essentially the same reasons: that there exists a complete constitutional bar to conviction on the offense charged, Brooks v. United States, 424 F.2d 425 (5th Cir.1970) (§ 2255), United States v. Bluso, 519 F.2d 473 (4th Cir.1975) (Rule 32); that the defendant was incompetent at the time of his plea, United States v. Masthers, 539 F.2d 721 (D.C.Cir.1976) (§ 2255), Kienlen v. United States, 379 F.2d 20 (10th Cir.1967) (Rule 32); and that the bargain the prosecutor made with defendant was not kept, Walters v. Harris, 460 F.2d 988 (4th Cir.1972) (§ 2255), United States v. Hawthorne, 502 F.2d 1183 (3d Cir.1974) (Rule 32). Perhaps even more significant is the fact that relief has often been denied under like circumstances whichever of the two procedures was used: a mere technical violation of Rule 11, United States v. Timmreck, 441 U.S. 780 [99 S.Ct. 2085, 60 L.Ed.2d 634] (1979) (§ 2255), United States v. Saft, 558 F.2d 1073 (2d Cir.1977) (Rule 32); the mere fact defendants expected a lower sentence, United States v. White, 572 F.2d 1007 (4th Cir.1978) (§ 2255), Masciola v. United States, 469 F.2d 1057 (3rd Cir.1972) (Rule 32); or mere familial coercion, Wojtowicz v. United States, 550 F.2d 786 (2d Cir.1977) (§ 2255), United States v. Bartoli, 572 F.2d 188 (8th Cir.1978) (Rule 32).
      We find that cases which followed the old Rule 32(d) "manifest injustice” standard can be used as authority for the § 2255 issue before us.

      . Some federal cases, in dicta, have mentioned this issue. In Michel v. United States, supra, at 465 the Second Circuit stated:
      We have insisted that even the indigent be represented by counsel, and we cannot seriously expect that the amendment to Rule 11 was intended to relieve counsel of his responsibility to his client. Where his client is an alien, counsel and not the court has the obligation of advising him of his particular position as a consequence of his plea.
      Although we agree that defense counsel should inform defendants about the possibility of deportation if the defendant chooses to plead guilty, we do not, however, agree that failure to inform the defendant of one specific collateral consequence automatically creates an issue of ineffective assistance of counsel which satisfies the standard for § 2255 relief as articulated in Hill v. United States, supra 368 U.S. at 428, 82 S.Ct. at 471.
      Another federal case is United States v. Briscoe, 432 F.2d 1351, 1353 (D.C.Cir.1970) where the Court stated "Under appropriate circumstances the fact that a defendant has been misled as to the consequence of deportability may render his guilty plea subject to attack.” In the facts before us it is clear that Pamphile was not misled as to the consequence of his plea of guilty as it pertained to deportability.
      Finally, in United States v. Shapiro, 222 F.2d 836 (7th Cir.1955), the Court allowed the defendant to withdraw his plea of nolo contendere. The defendant mistakenly believed he was a naturalized United States citizen and was understandably surprised when the Government instituted deportation proceedings against him. In the case before us there is no evidence that Pamphile mistakenly believed he was a U.S. citizen.

      . People v. Correa, 124 Ill.App.3d 668, 80 Ill.Dec. 395, 465 N.E.2d 507 (1984); Commonwealth v. Wellington, 305 Pa.Super. 24, 451 A.2d 223 (1982); Edwards v. State of Florida, 393 So.2d 597 (Fla.Dist.Ct.App.1981).

      . This early holding from the Second Circuit must be read in conjunction with the later Second Circuit holding in Michel, supra.

      . The D.C. Circuit cited Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) for a similar proposition. In Brady the defendant sought post-conviction relief on the ground that had he known of a subsequent Supreme Court decision at the time of his plea, he never would have pled guilty. The Supreme Court rejected Brady’s argument stating:
      "Central to the plea and the foundation for entering judgment against the defendant is the defendant’s admission in open court that he committed the acts charged in the indictment.”

        Brady, supra, 397 U.S. at 748, 90 S.Ct. at 1468. The Supreme Court also stated:
      The rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into his decision.

        Brady, supra at 757, 90 S.Ct. at 1473.

      . The opinion only alludes to the advice counsel gave to his client, stating
      being deeply concerned that appellant, a young Mexican national, would surely be deported if convicted, counsel carefully explained appellant’s rights, the government's burden and the punishment if guilt was established. Appellant, nevertheless, stated that he wanted 'to get it over with.'

        Vizcarra-Delgadillo, supra at 71.
      Judge Browning’s dissent, on the other hand, explains in more detail the preparation of defendant's counsel and the advice defense counsel gave the defendant concerning deportation. The court quoted the defense counsel who stated:
      'the main thing I was banking on was trying to get sympathy from the judge to allow [appellant] to remain in the United States, because this was obviously his wish.’ Accordingly, counsel’s only appeal on appellant's behalf at sentencing was that the court ‘allow him to maintain his alien residence status in the United States.’

        Vizcarra-Delgadillo, supra at 73.
      In fact the appropriate statute stated that deportation was mandatory and that the trial court had no discretion to recommend the defendant be spared deportation. Defense counsel had failed to research or read the appropriate immigration statute and his entire effort on behalf of the defendant was directed at achieving a legally impossible result.

      . The Third Circuit in United States v. Crowley, 529 F.2d 1066, 1072 (3d Cir.), cert. denied, 425 U.S. 995, 96 S.Ct. 2209, 48 L.Ed.2d 820 (1976) has a similar list from which the Russell court obtained the first two factors. In denying the defendant relief, the Third Circuit articulated these factors as:
      A) The failure of the defendant to assert he was innocent of the charge.
      B) The existence of prejudice to the Government through defendant’s entering the plea on the day of trial (November 21), when jurors, witnesses and court personnel had been assembled for the trial, and then making the request for withdrawal of the plea several days later (November 26, or thereafter).
      C) The weakness of the reason for withdrawal of the guilty plea.

      . We do note that there may be a possible question of self-defense, however, the defendant still admits he committed the'acts which originally brought him before this Court.


source: Caselaw Access Project

author: ALTIMARI, District Judge:

license: Public Domain

text:
    LONG ISLAND LIGHTING COMPANY, Plaintiff, v. The COUNTY OF SUFFOLK, NEW YORK, a New York municipal corporation, and Peter F. Cohalan, in his official capacity as Suffolk County Executive, Defendants.
    No. CV-84-2698.
    United States District Court, E.D. New York.
    March 18, 1985.
    Hunton & Williams by James E. Farnham, Richmond, Va., for plaintiff.
    Paul, Weiss, Rifkind, Wharton & Garrison by Martin London, New York City, for defendants.
   MEMORANDUM AND ORDER

ALTIMARI, District Judge:

The plaintiff, Long Island Lighting Company, instituted this action alleging that the defendants have effected an inverse condemnation of the plaintiff's Shoreham nuclear power plant. The plaintiff also alleges that the defendants have breached certain contractual obligations. Plaintiff seeks a $4 billion judgment.

Defendants move to dismiss the complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the reasons stated herein, defendants’ motion is granted.

BACKGROUND

The background to this action is essentially the same as that recounted in Citizens for an Orderly Energy Policy, Inc. v. County of Suffolk, 604 F.Supp. 1084 (E.D.N.Y.1985). Plaintiff, Long Island Lighting Company (“LILCO”), is a New York corporation engaged in the production and sale of electricity. In 1973, LILCO was granted a permit to build the Shoreham Nuclear Power Station (“Shoreham”) within the County of Suffolk (the “County”). Construction of Shoreham is now essentially complete, at a cost of approximately $4 billion.

Relations between LILCO and the County concerning Shoreham began amicably. In 1970, the Suffolk County Executive, H. Lee Dennison, appeared before the Atomic Energy Commission in order to support LILCO’s application for a construction permit. Complaint at par. 10. Following issuance of the construction permit the Suffolk County Department of Emergency Preparedness was directed to develop a response plan for major radiation incidents. In 1975, State, County and LILCO representatives began meeting to discuss emergency planning. On August 30, 1978 then County Executive John Klein approved a County “General Radiation Emergency Plan” which was later reviewed and accepted by the New York State office of disaster preparedness. Complaint at par. 13-14.

In 1979 there was an accident at the Three Mile Island nuclear power station. Following that event the Nuclear Regulatory Commission (“NRC”) promulgated new emergency planning regulations. As a result of the new regulations, then County Executive Klein signed a “Memorandum of Understanding” outlining the new emergency responsibilities of LILCO and the County. By its terms, the “Memorandum of Understanding” could be terminated by either party on ten days notice. LILCO also began to seek outside consultants to assist in the new emergency planning. Complaint at par. 16-17.

On September 18,1981 the County Legislature approved a contract whereby the County was to provide a “Radiological Emergency Response Plan” (“RERP”) for LILCO so that the Shoreham facility would be able to comply with the new federal regulations. In return LILCO paid the County $150,000 initially and promised to pay an additional $95,000 in six months when the plan was to be completed. Complaint at par. 18.

In February of 1982 relations between LILCO and the County took a decided turn for the worse. The County Department of Planning informed LILCO that due to an apparent conflict of interests the County would return LILCO’s initial payment of $150,000 for the preparation of a RERP. The County also maintained, however, that they would continue to develop a plan to protect the health, safety and welfare of the community. Complaint at par. 25.

The County later informed LILCO that it was pursuing this course of action because it was in an adversary relationship with LILCO regarding the licensing of Shore-ham by the NRC. LILCO objected to the return of its payment and did not cash the check sent to it by the County. Complaint at par. 26.

On March 25, 1982 County Executive Cohalan approved a resolution of the County Legislature to continue preparation of an emergency plan at the County’s expense. The resolution also provided that the final plan would have to be approved by the legislature. Complaint at par. 27.

Following the legislature’s decision not to complete the original LILCO sponsored RERP, LILCO began to refine that work which the County planners had begun and abandoned. On May 10, 1982 LILCO submitted this plan to the State Disaster Preparedness Commission for review. LILCO informed the Commission that the County did not endorse the submitted plan. Complaint at par. 46. Apparently in response to LILCO’s actions in this regard, the County Legislature passed a resolution that the County’s plan would not be complete until approved by the legislature after public hearings. Complaint at par. 32.

In December of 1982 the County produced a draft Suffolk County Radiological Emergency Response Plan (the “draft County plan”). LILCO contends that this plan was little more than a generic description of those areas which would have to be developed in any working emergency plan. Public hearings on the plan were held in January of 1983. Complaint at par. 35-37.

On February 17, 1983 the County Legislature passed a resolution rejecting the draft County plan and further stating that no emergency plan would be adopted or implemented by the County because no plan could protect the health, welfare and safety of County residents. The resolution also directed County Executive Cohalan to assure that actions taken by other government agencies were consistent with the County Legislature’s determination. Complaint at par. 41.

The County then moved the NRC licensing board to terminate the Shoreham licensing proceeding on the basis of the County’s decision not to participate in emergency planning. The board denied the County’s motion. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), 17 NRC 608, affm’d, 17 NRC 741 (1983).

It is LILCO’s contention that the County’s refusal to participate in emergency planning is the “centerpiece” of the County’s attempt to prevent the operation of Shoreham. LILCO alleges that the County has endeavored to delay NRC licensing procedures by raising unrelated issues, with the result that the NRC record on Shore-ham has exceeded 35,000 pages. Complaint at par. 44. The County has also instituted judicial proceedings against LIL-CO. Complaint at par. 55.

The latest emergency plan which LILCO has filed with the NRC provides for LILCO personnel to carry out those functions in which the County refuses to participate. The County contends that LILCO’s plan is inadequate.

LILCO has not been denied a license because of the County’s opposition. LIL-CO’s complaint calls for the declaratory relief that, should the defendants succeed in preventing the operation of Shoreham, either through the denial of a license or through abandonment of the plant by LIL-CO, then the defendants will have effected an inverse condemnation of LILCO’s property in violation of the fifth amendment.

LILCO also seeks a $4 billion judgment against the defendants on the ground that the County breached its contractual obligations to LILCO by refusing to develop a RERP and by obstructing LILCO from implementing a RERP. The contractual claim is apparently based on the court’s pendent jurisdiction.

DISCUSSION

As on any motion to dismiss, the court accepts all material factual allegations contained in the complaint as true and construes the complaint in favor of the plaintiff for the purpose of deciding the instant motion. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Oneida Indian Nation of New York v. State of New York, 691 F.2d 1070, 1074 (2d Cir.1982). The major issue before the court at this juncture thus becomes whether declaratory relief may be granted for a governmental taking of plaintiffs’ property even though plaintiffs’ property has not as yet been taken and, depending on a somewhat complex series of future events, may never be taken.

The power of the federal courts is limited under Article III of the Constitution to appropriate cases and controversies. U.S. Const, art. Ill, § 2. It is fundamental that a United States District Court may not render advisory opinions. See, e.g., Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 2334, 45 L.Ed.2d 272 (1975); North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413 (1971); Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956, 959, 22 L.Ed.2d 113 (1969). A prayer for declaratory relief may properly be addressed by this court only if “the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Preiser, 422 U.S. at 402, 95 S.Ct. at 2334 (quoting Maryland Casualty Co. v. Pacific Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941)) (emphasis in Preiser).

Under the Declaratory Judgment Act a court of the United States may “declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201. Such a declaration, however, may only be made “in a case of actual controversy.” Id. A mere abstract question or hypothetical threat is not a sufficient basis for a declaratory judgment under the Act. Golden, 394 U.S. at 108, 89 S.Ct. at 959.

The question of whether a particular case presents a hypothetical question or a substantial controversy is necessarily one of degree turning on the particular facts alleged in each case. There are, as plaintiff does not deny, a substantial number of factual contingencies in the complaint in this action. Plaintiff in effect asks this court to find that if the NRC should deny a license for the operation of Shoreham, and if any or all of the complained of actions of the defendants cause that denial, then defendants will have committed an unconstitutional taking of plaintiffs property. Given its dependence on future events that may or may not occur, plaintiffs action would appear to be premature.

Whether a question is ripe for adjudication “turns on ‘the fitness of the issues for judicial decision’ and ‘the hardship to the parties of withholding court consideration.’ ” Pacific Gas and Electric Co. v. State Energy Resources Conservation and Development Commission, 461 U.S. 190, 103 S.Ct. 1713, 1720-21, 75 L.Ed.2d 752 (1983) (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967)). A comparison of the Supreme Court’s determinations in the companion cases of Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), and Toilet Goods Association v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967), provides a helpful illustration of the distinction between a ripe controversy and premature litigation.

In Abbott Laboratories thirty-seven individual drug manufacturers challenged a regulation requiring that labels and advertisements for prescription drugs contain the “established name” of the particular drug rather than just the proprietary name. 387 U.S. at 137-39, 87 S.Ct. at 1509-10. The issue involved in Abbott Laboratories was purely legal and both sides moved for summary judgment. Id. at 149, 87 S.Ct. at 1515. The challenged regulation had a direct effect on plaintiffs, forcing them to incur the immediate costs of complying or else risk prosecution. Id. at 152, 87 S.Ct. at 1517. Under these circumstances the Court found declaratory relief to be appropriate as the controversy presented was ripe for a judicial determination. Id. at 148-56, 87 S.Ct. at 1515-20.

In Toilet Goods Association a group of cosmetic distributors and manufacturers challenged a regulation requiring manufacturers to provide Food and Drug Administration employees free access to manufacturing facilities. Manufacturers who did not comply with the regulation faced possible immediate suspension of their certification. Toilet Goods Association, 387 U.S. at 158-61, 87 S.Ct. at 1520-23. Although the case presented a purely legal question, the court found that other factors rendered it inappropriate for judicial resolution. Id. at 163, 87 S.Ct. at 1524. The regulation only provided that free access might be required and that certification might be suspended. Under these circumstances, the court found that a ripe controversy did not exist. Id. at 163-66, 87 S.Ct. at 1524-26.

The present action resembles Toilet Goods Association more closely than it resembles Abbott Laboratories. It may not be said, based on the allegations in the complaint, that the taking which plaintiff fears is an imminent or even" probable event. Plaintiff merely asserts that the NRC might deny its license and that defendants’ actions might be the cause of that denial.

Plaintiff bases much of its opposition to defendants’ motion on Ruckelshaus v. Monsanto Co., — U.S. -, 104 S.Ct. 2862, 81 L.Ed.2d 815 (1984). Monsanto concerned federal legislation authorizing the Environmental Protection Agency (“EPA”) to publicly disclose data submitted to it by applicants for pesticide registration. Monsanto objected that such a disclosure would effect a taking of its property without just compensation by destroying valid trade secrets. Id. 104 S.Ct. at 2867-71. The Court, without explicitly addressing ripeness, held that “disclosure of data submitted by Monsanto to the agency prior to October 22, 1972, or after September 30, 1978, does not effect a taking____ EPA consideration of disclosure of health, safety and environmental data will constitute a taking if Monsanto submitted the data between October 22, 1972 and September 30, 1978.” Id. 104 S.Ct. at 2879. Plaintiff contends that this holding indicates the Supreme Court’s approval of declaratory judgments based on contingent circumstances.

Plaintiff’s reliance on Monsanto is misplaced. The “if” in the Supreme Court’s holding in Monsanto concerned a past event: if the data had been submitted during a certain time period, then any public disclosure of that information would constitute a taking. The “if” in this action, however, concerns a future possibility: if the NRC denies plaintiff’s application due to defendants’ actions, then defendants’ actions may constitute a taking. A claim based on a speculation as to possible future occurrences is fundamentally different from the claim considered in Monsanto.

In addition, courts must use caution when considering declaratory judgments in cases involving constitutional issues or questions of public moment. Public Affairs Press v. Rickover, 369 U.S. 111, 112, 82 S.Ct. 580, 581, 71 L.Ed.2d 604 (1962); Communist Party v. Control Board, 367 U.S. 1, 71-72, 81 S.Ct. 1357, 1397-98, 6 L.Ed.2d 625 (1961). As the Supreme Court has cautioned,

judicial exposition upon political proposals is permissible only when necessary to decide definite issues between litigants ____ Should the courts seek to expand their power so as to bring under their jurisdiction ill-defined controversies over constitutional issues, they would become the organ of political theories. Such abuse of judicial power would properly meet rebuke and restriction from other branches.

United Public Workers v. Mitchell, 330 U.S. 75, 90-91, 67 S.Ct. 556, 565, 91 L.Ed. 754 (1947).

In summary, it is the finding of this court that plaintiff’s complaint does not present a controversy presently ripe for judicial review. Plaintiff’s claim would require the court to make a decision based on the uncertain occurrence of a future event. See Kidwell Ex Rel. Penfold v. Meikle, 597 F.2d 1273, 1289 (9th Cir.1979). Accordingly, plaintiff’s fifth amendment claim for declaratory relief is dismissed.

Turning to plaintiff’s breach of contract claim, that claim is apparently based on this court’s pendent jurisdiction. Considering the dismissal of plaintiff’s federal constitutional claim, plaintiff’s state law contract claim should be dismissed as well. United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966); Nolan v. Meyer, 520 F.2d 1276, 1280 (2d Cir.), cert. denied, 423 U.S. 1034, 96 S.Ct. 567, 46 L.Ed.2d 408 (1975).

CONCLUSION

For the reasons stated above, defendants’ motion to dismiss pursuant to F.R. Civ.P. 12(b)(1) and 12(b)(6) is granted. The clerk is directed to enter judgment accordingly.

SO ORDERED.


author: NANGLE, Chief Judge.

text:
    MONETARY MANAGEMENT GROUP OF ST. LOUIS, INC., Plaintiff, v. KIDDER, PEABODY & CO., INC., and William R. Martin, Defendants.
    No. 84-558C(1).
    United States District Court, E.D. Missouri, E.D.
    March 18, 1985.

      Ellen Bonacorsi, St. Louis, Mo., for plaintiff.
    Jim Shoemaker, St. Louis, Mo., for defendants.
   MEMORANDUM

NANGLE, Chief Judge.

This case is now before this Court on plaintiffs and defendants’ motions for summary judgment. The primary issues raised by said motions are: 1) whether plaintiff is the real party in interest and has standing to litigate the case at bar; and 2) whether the remedy sought by plaintiff is available. For the reasons discussed infra, this Court holds that plaintiff is the real party in interest, and thus has standing to litigate this action, and that plaintiff is not barred from obtaining the remedy that it seeks. However, plaintiff is not entitled to summary judgment on the merits of its complaint.

The facts of this case are painfully simple. On or around May 11, 1983, defendants, through Martin, a registered representative employed by Kidder, Peabody, effected the purchase of two (2) bonds for plaintiff’s account, $125,000.00 face value of Utah Power and Light Company bonds and $75,000.00 face value of Puget Sound Power and Light Company bonds. Plaintiff alleges that defendants misrepresented a material fact by stating that said bonds were marginable, or omitted to state a material fact by failing to advise plaintiff that said bonds were not marginable. Plaintiff is an investment advisor who, in purchasing said bonds, was acting on behalf of its client, Basler Electric Company. Basler maintained a margin account with plaintiff and the bonds purchased by defendants for plaintiff’s account were intended for Basler’s margin account. Upon learning that said bonds were not marginable, plaintiff contacted defendants and demanded that the trades be reversed. Defendants refused to comply with this demand. Plaintiff then brought this action to rescind the sale of said bonds, to recover the purchase prices of the bonds and the margin interest paid, including interest thereon, and to recover their costs and attorney’s fees.

Plaintiff’s complaint consists of three (3) counts. Count I alleges violations of § 12(2) of the Securities Act of 1933. 15 U.S.C. § 77/(2). The second and third counts of plaintiff’s complaint are pendent state law claims. Count II alleges that defendants violated § 409.411(a). Mo.Rev. Stat. § 409.411(a). Count III alleges that plaintiff is entitled to rescission of the bond trades under the Missouri common law theory of negligent misrepresentation.

Under Rule 56 of the Federal Rules of Civil Procedure, a movant is entitled to summary judgment if he can “show that there is no genuine issue as to any material fact and that [he] is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). See also Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962). In passing on a motion for summary judgment, a court is required to view the facts and inferences that may be derived therefrom in the light most favorable to the non-moving party. Buller v. Buechler, 706 F.2d 844, 846 (8th Cir.1983); Vette Co. v. Aetna Casualty and Surety Co., 612 F.2d 1076, 1077 (8th Cir.1980). The burden of proof is on the moving party and a court should not grant a summary judgment motion unless it is convinced that there is no evidence to sustain a recovery under any circumstances. Buller, 706 F.2d at 846. However, under Rule. 56(e), a party opposing a motion for summary judgment may not rest upon the allegations of his pleadings but “must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). See also 10A Wright, Miller and Kane, Federal Practice and Procedure: Civil 2d, § 2739 (1983).

Defendants first argue that plaintiff is not the real party in interest with respect to its federal securities claim in Count I, because plaintiff purchased the bonds in question for the account of its customer, Basler Electric Company, rather than for its own account. Section 12(2) of the Securities Act of 1933 defines a proper plaintiff thereunder as “the person purchasing such security from” the defendant. 15 U.S.C. § 77/(2). Defendants equate “purchaser” status with ownership. For example, defendants rely on the cases of Blau v. Lamb, 314 F.2d 618 (2nd Cir.1963), and Matthysse v. Securities Processing Services, Inc., 444 F.Supp. 1009 (S.D.N.Y.1977). In Blau, a plaintiff stockholder brought suit under § 16(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78p(b), for the benefit of the issuing corporation against several defendants, who were officers, directors, or 10% shareholders of said corporation, to recover “short swing” profits. The Blau plaintiff had purchased his shares in said corporation through a margin account with a broker who held the plaintiff’s shares in street name. Section 16(b) of the 1934 Act expressly requires a plaintiff to be an “owner” of the stock in question to sue for short swing profits on behalf of the issuing corporation. Blau held that the remedial purpose of § 16(b) required a liberal interpretation of the term “owner” and that said term is not limited to beneficial ownership. Thus, the plaintiff in Blau was allowed to seek recovery of short swing profits. With respect to the real party in interest issue, the Blau court stated that all a defendant is entitled to is “ ‘such a party plaintiff as will render the judgment final and res adjudicata of the right sued upon’ ”. Blau, 314 F.2d at 620 (citation omitted).

In the opinion of this Court, Blau is not particularly relevant to the issue of plaintiff’s standing or real party in interest status in the case at bar. Unlike § 16(b) of the 1934 Act, § 12(2) of the 1933 Act does not expressly require that a plaintiff be an owner. It merely requires that a plaintiff be a purchaser. Moreover, Blau held that a § 16(b) suit could be maintained by a customer, but it did not hold that the broker, in whose name the purchase was made, could not sue under § 16(b).

This Court also agrees with plaintiff that Matthysse is not at all apposite to the case at bar. Matthysse was a diversity action brought to recover damages for the defendant’s • alleged conversion of securities claimed to be the property of the plaintiff. The case dealt with the issue of who is the owner of securities in a broker/customer relationship for purposes of Article 8 of the Uniform Commercial Code and did not involve any real party in interest issues or any federal or state securities laws violations.

The analytical approach taken by the Blau court, however, is applicable to the case at bar. Just as the remedial purpose of § 16(b) compelled the Blau court to extend the term owner beyond a beneficial owner, the remedial purpose of § 12(2) warrants extension of the term purchaser to one who purchases stock in its own name on behalf of another. In addition, this Court agrees with Blau’s approach to the real party in interest question. Here, because Basler Electric Company is in privity with plaintiff, any judgment rendered in this case would be res judicata as to Basler Electric Company. Finally, although the cases relied on by plaintiff are not on “all fours” with the facts of this case, they do tend to support the proposition that a purchaser for purposes of § 12(2) includes a representative or an agent of a purchaser. Thomas v. Roblin Industries, Inc., 520 F.2d 1393, 1396 (3rd Cir.1975); A.T. Brod & Co. v. Perlow, 375 F.2d 393, 397 (2nd Cir.1967); Odette v. Shearson, Hammill & Co., 394 F.Supp. 946, 959 (S.D.N.Y.1975); Bache & Co., Inc. v. International Controls Corp., 324 F.Supp. 998 (S.D.N.Y.1971). Accordingly, this Court holds that plaintiff is a “purchaser” within the meaning of § 12(2) of the 1933 Act and that it is the real party in interest for prosecuting the instant action.

Defendants’ next argument is a variation on their real party in interest argument, but goes to the availability of the remedy sought by plaintiff. Section 12(2) provides, in pertinent part, as follows:

[A plaintiff] may sue either at law or in equity in any court of competent jurisdiction, to recover the consideration paid for such security with interest thereon, less the amount of any income received thereon, upon the tender of such security, or for damages if he no longer owns the security.

15 U.S.C. §771 (2) (emphasis added). Thus, a § 12(2) plaintiff is entitled to rescission but not damages if said plaintiff owns the stock in question, and said plaintiff is entitled to damages but not rescission if said plaintiff no longer owns the stock. Wigand v. Flo-Tek, Inc., 609 F.2d 1028, 1035 (2nd Cir.1979); Mott v. Tri-Continental Financial Corp., 330 F.2d 468 (2nd Cir.1964). Defendants argue that deposition testimony in the case at bar establishes that plaintiff no longer owns the bonds in question. Therefore, defendants argue, plaintiff is not entitled to rescission and plaintiff’s complaint should be dismissed because it does not seek damages.

Despite the facts that this case has been pending since March, 1984, and that both parties have engaged in extensive and contumacious discovery, the precise status and circumstances in which the bonds in question are presently held cannot be agreed upon. Defendants rely on excerpts from the depositions of several of plaintiff’s officers and employees and an officer of Basler Electric Company to support its argument that plaintiff no longer owns the bonds in question. Thomas G. Wright, President of plaintiff, stated that, to the best of his knowledge, the bonds in questions are in an account at A.G. Edwards in the name of Basler Electric Company. Ray Hayes, Portfolio Manager for plaintiff, stated.that it was his understanding that Basler Electric Company owns the bonds. Randall Kirkland, Financial Planner for plaintiff, stated that it was his understanding that Basler Electric Company owns the bonds but that he was not certain. Jon Thomas, Chairman of the Board of plaintiff, stated that he does not know in whose accounts or in whose name the bonds in question are held. Finally, Ray Vollet, Vice President of Basler Electric Company, Inc., stated that plaintiff invested Basler Electric's money and that it was his belief that Basler Electric Company owns the bonds in question.

Plaintiff on the other hand, submitted an affidavit from James A. Lanser, an employee in the Margin Department at A.G. Edwards & Sons, Inc., who states that he is familiar with the facts surrounding the transfer of the bonds in question. He states that the bonds were transferred from an account maintained by plaintiff with defendants to an account maintained by plaintiff at A.G. Edwards & Sons, Inc. He further states that the bonds have been held, since their transfer from defendants to A.G. Edwards & Sons, Inc., in street name.

From the foregoing it would appear that there is a disputed issue of fact, namely the current ownership of the bonds in question. However, this is a non-jury case and this fact question would ultimately be resolved by this Court. In addition, neither party has indicated that additional evidence on this question would be forthcoming at a trial on the merits. Under these circumstances, it is proper for this Court to determine who owns the bonds for purposes of obtaining relief under § 12(2) on the record now before this Court.

Just as the phrase “person purchasing” in § 12(2) should be interpreted to achieve the broad remedial purpose of § 12(2), it is the opinion of this Court that the term “owns” in the same provision should be interpreted liberally to achieve its remedial purpose. Obviously, the reason that a non-owner is limited to a damage remedy is that a non-owner cannot tender the security back to the defendant and thereby accomplish rescission. In the opinion of this Court, a purchaser is an owner for purposes of § 12(2) if said purchaser possesses sufficient control or authority to effectuate a tender of the securities in question. Elusive notions of legal, equitable, or beneficial title should not be controlling in a § 12(2) case. The case at bar is a striking illustration of how such notions can unnecessarily complicate a factually simple case. A total of four (4) parties have some kind of interest in the bonds in question: 1) plaintiff; 2) A.G. Edwards & Sons, Inc.; 3) the defendants; and 4) Basler Electric Company, Inc. Where so many parties have had a hand in the transaction, questions of title are in a “twilight zone” and the discovery in this case indicates that each of said parties is understandably reluctant to state an opinion as to which one is the owner. Accordingly, this Court holds that the touchstone is whether plaintiff has sufficient indicia of ownership to effectuate a tender of the securities in question if it were to prevail on the merits of its right to rescission.

In the case at bar, plaintiff has sufficient indicia of ownership to effectuate a tender of the bonds in question. It appears that after they were purchased by plaintiff they were held by defendants in an account that plaintiff maintained at Kidder, Peabody. Subsequently, the bonds were transferred to an account maintained by plaintiff at A.G. Edwards & Sons, Inc. At all relevant times the bonds have been held in street name. This Court is satisfied that Basler Electric Company has given plaintiff whatever authority it needs to tender the bonds back to defendants and obtain rescission for Basler Electric’s account. Accordingly, this Court holds that plaintiff is an owner for purposes of obtaining rescission under § 12(2).

Plaintiff’s motion for summary judgment seeks entry of a judgment in its favor on all three counts in its complaint. To prevail on its § 12(2) claim in Count I, plaintiff must prove the following elements:

1) defendants offered or sold a security;
2) by the use of any means of communication in interstate commerce;
3) through a prospectus or oral communication;
4) by making a false or misleading statement of a material fact or by omitting to state a material fact necessary in order to make the statements, in light of the circumstances under which they were made, not misleading;
5) plaintiff did not know of the untruth or omission; and
6) defendants knew, or in the exercise of reasonable care, could have known of the untruth or omission.

Alton Box Board Co. v. Goldman, Sachs and Co., 560 F.2d 916 (8th Cir.1977); Gridley v. Sayre & Fisher Co., 409 F.Supp. 1266 (D.S.D.1976). The elements of plaintiffs claim in Count II, which is based on § 409.411(a) of the Missouri Revised Statutes, are identical to those of plaintiffs federal securities claim in Count I. See Dunn v. Bemor Petroleum, Inc., 680 S.W.2d 304, 306-07 (Mo.Ct.App.1984). In addition, the elements of plaintiffs claim in Count III of its complaint are arguably encompassed by those in Counts I and II. See Hudspeth v. Zorn, 292 S.W.2d 271 (Mo.1956); Osterberger v. Hites Construction Co., 599 S.W.2d 221 (Mo.Ct.App.1980).

Defendants do not seriously contend that elements 1, 2, 3 and 5 of Count I of plaintiffs complaint are not established in the case at bar. However, this Court is not convinced that there is no genuine issue of fact with respect to elements 4 and 6. A fuller development of the record is necessary for this Court to determine whether the marginability of the bonds in question was a material fact and whether defendants knew, or in the exercise of reasonable care, could have known of the non-marginability of said bonds. Accordingly, plaintiffs motion for summary judgment must be denied.

      . This Court declines to consider defendants’ alternative motion to dismiss. Because said motion presents matters outside the pleadings, said motion must be treated as a motion for summary judgment under Rule 56. See Fed.R. Civ.P. 12(a).

      . Federal Reserve Regulation T, 12 C.F.R. § 220.2(i)(l)(i), requires a bond issuer to have a principal amount outstanding of not less than $25,000,000.00 in order that its bonds be marginal. The issuers of the two bonds in the case at bar each had only $15,000,000.00 in principal outstanding.

      . Defendants provided this Court with a letter from Basler Electric to plaintiff, dated November 8, 1984. The letter, which apparently relates to the bonds in question, states, in pertinent part, as follows:
      This letter is to serve as your authorization to sell these securities at the market. Plus, obtain from Kidder, Peabody any possible com-
      pensation that you may be able to obtain from Kidder, Peabody for their improper handling of this transaction. If no additional compensation is obtainable from Kidder, Peabody, you are still authorized to dispose of the securities and forward the funds to Basler Electric Company.


author: CAFFREY, Chief Judge.

text:
    David MELLO and Phyllis Mello, Plaintiffs, v. K-MART CORPORATION, Shinn Fu of America, Inc.: and Shinn Fu Auto Supply Co., Ltd., Defendants.
    Civ. A. No. 83-3434-C.
    United States District Court, D. Massachusetts.
    March 18, 1985.

      Roger E. Hughes, Jr., Latti Associates, Boston, Mass., for plaintiffs.
    James P. Whitters, III, Esq. Gaston Snow & Ely Bartlett, Boston, Mass., for Shinn Fu of America, Inc., and Shinn Fu Auto Supply Co. & K-Mart.
   MEMORANDUM

CAFFREY, Chief Judge.

This is a diversity action brought pursuant to 28 U.S.C. § 1332 by David and Phyllis Mello, residents of Massachusetts, against K-Mart Corporation (“K-Mart”), Shinn Fu Auto Supply Co., Ltd. (“Shinn Fu Auto”), and Shinn Fu of America, Inc. (“Shinn Fu America”). All three defendant corporations are organized under the laws of states other than Massachusetts and have their principal places of business in cities outside of Massachusetts.

Plaintiff David Mello alleges that he sustained severe injuries as a result of using a six ton hydraulic jack designed, manufactured, and marketed by defendants. Plaintiff’s wife, Phyllis Mello, claims that her husband’s injuries caused her to suffer loss of consortium. According to the complaint, David Mello was hurt on or about November 7, 1982, while plaintiffs were vacationing in Tennessee. At the time of the accident, Mello was using a hydraulic jack to repair an automobile. He had purchased this jack the previous day at a K-Mart store in Goodlettsville, Tennessee.

The case comes before the Court on three motions filed by the respective defendants. Shinn Fu Auto seeks to have the case against it dismissed for lack of personal jurisdiction, Fed.R.Civ.P. 12(b)(2); Shinn Fu of America moves for summary judgment; and K-Mart requests partial summary judgment.

Shinn Fu Auto’s Motion to Dismiss

In a diversity action, the jurisdiction of this Court over a foreign corporate defendant is determined by the provisions of the Massachusetts long-arm statute, M. G.L. c. 223A, § 3. E.g., Pulson v. American Rolling Mill Co., 170 F.2d 193, 194 (1st Cir.1948); Marketing & Distribution Resources, Inc. v. Paccar, Inc., 460 F.Supp. 990, 991 (D.Mass.1978). Although the Supreme Judicial Court of Massachusetts has construed the state long-arm statute as “an assertion of jurisdiction over the person to the limits allowed by the Constitution of the United States,” “Automatic” Sprinkler Corp. of America v. Seneca Foods Corp., 361 Mass. 441, 443, 280 N.E.2d 423 (1972), the court has nevertheless cautioned that “G.L. c. 223A, § 3 asserts jurisdiction over the person to the constitutional limit only when some basis for jurisdiction enumerated in the statute has been established.” Good Hope Industries, Inc. v. Ryder Scott Co., 378 Mass. 1, 6, 389 N.E.2d 76 (1979). This Court must therefore engage in a two step analysis: “(1) is the assertion of jurisdiction authorized by statute, and (2) if authorized, is the exercise of jurisdiction under State law consistent with basic due process requirements mandated by the United States Constitution?” Id. at 5-6, 389 N.E.2d 76.

Plaintiffs bear the burden of proving that this Court’s exercise of jurisdiction over Shinn Fu Auto is permissible under both Massachusetts law and the federal Constitution, Droukas v. Divers Training Academy, Inc., 375 Mass. 149, 151, 376 N.E.2d 548 (1978); Walsh v. National Seating Co., 411 F.Supp. 564, 568 (D.Mass. 1976). Accordingly, plaintiffs argue that § 3(d) of the long-arm statute provides the requisite state authorization. § 3(d) declares:

A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the person’s
(d) causing tortious injury in this commonwealth by an act or omission outside this commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this commonwealth; ...

M.G.L. c. 223A, § 3(d).

Plaintiffs maintain that they have suffered tortious injury in Massachusetts because David Mello has incurred medical expenses and endured pain and suffering in the state, and Phyllis Mello has experienced loss of consortium in the Commonwealth.

These contentions are meritless on the jurisdictional problem. David Mello purchased the hydraulic jack in Tennessee, and he was injured in Tennessee. The fact that he returned to Massachusetts for treatment and recovery cannot alter where the injury occurred. Judge Tauro’s insightful analysis in Walsh v. National Seating Co., Inc., 411 F.Supp. 564 (D.Mass.1976) addresses this very issue. 'Walsh, a resident of Massachusetts, was injured by a defective bus seat while he was operating a motor coach in Maine. He and his wife brought suit in Massachusetts against the seat’s manufacturer, an out-of-state corporation. Explaining why § 3(d) of the long-arm statute did not authorize the court to exercise jurisdiction over the corporate defendant, Judge Tauro stated:

Plaintiff asks too much from the phrase “tortious injury.” While it is undoubtedly true that plaintiff and his wife suffered in Massachusetts this does not mean they were injured here. They suffered here as a result of an injury that occurred in Maine. To accept plaintiffs theory would mean that parties could choose their court by choosing their hospital or place of recuperation.

Id. at 571.

Because the Mellos, like the Walshes, have experienced no tortious injury in Massachusetts, I rule that § 3(d) of the state long-arm statute provides no basis for this Court’s exercise of jurisdiction over Shinn Fu Auto.

Apparently anticipating the Court’s ruling with respect to the applicability of § 3(d), plaintiffs proffer an alternative jurisdictional theory. They assert that “[wjhen the non-resident defendant has numerous contacts with the forum such that the demands of due process are satisfied, it is not necessary that the cause of action arise from or be connected with the defendants’ contacts with the forum.” Plaintiffs’ assertion is directly contradicted by the wording of the Massachusetts long-arm statute. The statute specifies that a court may exercise jurisdiction over a foreign corporation only if the cause of action arises from some action or event which took place within the state. As noted above, no aspect of the incident on which plaintiffs base their claims transpired in Massachusetts.

Because there is no provision of the long-arm statute on which to predicate jurisdiction, the Court need not reach the question of whether plaintiffs’ assertion is constitutionally sound. Singer v. Piaggio & C., 420 F.2d 679, 681 (1st Cir.1969). I therefore rule that Shinn Fu Auto’s motion to dismiss should be granted.

Shinn Fu America’s Motion for Summary Judgment

Shinn Fu America bases its motion for summary judgment on an affidavit by Peter Chi, Secretary of the Board of Shinn Fu America. Mr. Chi declares that “prior to November 7, 1982, Shinn Fu of America, Inc. made no sales of any products, including hydraulic jacks, to K-Mart.” This affidavit, the corporation asserts, proves that Shinn Fu America had no connection to the jack in question, and that the company is therefore entitled to judgment as a matter of law.

To rebut Mr. Chi’s statements, plaintiffs produce a copy of a letter printed on Shinn Fu America letterhead. The letter, dated November 8, 1982, summarizes the results of a business meeting apparently attended by personnel of both Shinn Fu America and K-Mart. It states in pertinent part:

1. A lawsuit against K-Mart and Shinn Fu re-failure of a hydraulic jack in 1976 has been settled and an amount of USD9,345.00 was paid by K-Mart. After being aware of the matter, Shinn Fu agreed to reimburse ... K-Mart____
2. Two pending cases regarding a death on October 4, 1978 and a neck & head injury on May 25, 1980 were made aware to [sic] Michael Hung and his staff in the meeting.
3. Shinn Fu ... advised its insurance agent Continental Insurance Company in the U.S.A. Shinn Fu requested the two pending cases be immediately referred to Continental Insurance Company to take over.
4. A proper channel to handle legal issue in the future has been agreed by K-Mart and Shinn Fu that any legal claim against Shinn Fu’s products arises [sic], K-Mart will notify Continental Insurance Company of the case and also send a copy to Shinn Fu for reference. If any technical help be needed [sic] in defending the case, Shinn Fu will be pleased to provide the assistance.
It was a constructive meeting in regard to the above matters and again, thank you very much for your favorable patronage; we, Shinn Fu, will continue to fulfill our promises to stand firmly behind our products.

Plaintiffs contend that this letter raises factual questions regarding the extent of Shinn Fu America’s involvement in the production and marketing of hydraulic jacks supplied to K-Mart by Shinn Fu Auto.

Summary judgment may be granted only if the moving party has proved that the case presents “no genuine issue as to any material fact.” Fed.R.Civ.P. 56(c). In determining whether the moving party has sustained its burden of proof, a court must view all evidentiary materials pertaining to the motion in the light most favorable to the opposing party. Adickes v. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); 6 J. Moore, Moore’s Federal Practice, 11 56.23, at 1390 (2d ed. 1980). In this instance, I find that there exists a factual issue concerning the nature of the relationship between Shinn Fu America and Shinn Fu Auto, and that plaintiffs have posed a legitimate question as to whether Shinn Fu America could be held liable under one or more of the theories set forth in the complaint. I therefore rule that Shinn Fu America’s motion for summary judgment should be denied.

K-Mart’s Motion for Partial Summary Judgment

K-Mart asks this Court to grant it partial summary judgment with respect to that portion of the complaint which alleges that the corporation negligently designed, manufactured, and packaged the hydraulic jack which is the subject of this suit. In support of its motion, K-Mart submits the affidavit of Robert J. Bleakly, a Senior Buyer for the company, who is responsible for approving all of K-Mart’s overseas purchases. Mr. Bleakly states that the jack in question was purchased from Shinn Fu Auto fully manufactured, assembled, and packaged. The affiant further asserts that the jack was designed neither by K-Mart nor specifically for K-Mart by Shinn Fu Auto. K-Mart contends that Mr. Bleakly’s declarations entitle it to summary judgment on the issue of negligence with respect to the design, manufacture, and packaging of the hydraulic jack.

Plaintiffs, for their part, argue that K-Mart should be held liable to the same extent as the manufacturer of the jack, because K-Mart represented itself to be the product’s manufacturer. In support of this contention, plaintiffs proffer photos showing the name “K-Mart” printed in bold letters on both the jack and the container in which it was packaged. On the container appear the words: “Manufactured in Taiwan Republic of China for K Mart Corporation.”

Ordinarily, a retailer cannot be held liable in negligence for latent defects in a manufactured product. E.g. Kasey v. Suburban Gas Heat of Kennewick, Inc., 60 Wash.2d 468, 374 P.2d 549, 551 (1962). A different rule, however, applies to products which appear to have been manufactured either by the retailer or particularly for the retailer by another manufacturer. “One who puts out as his own product a chattel manufactured by another is subject to the same liability as though he were its manufacturer.” Restatement (Second) of Torts § 400 (1965). See also Moody v. Sears, Roebuck & Co., 324 F.Supp. 844 (S.D.Ga.1971) and cases cited therein. The crucial factor determining a retailer’s amenability to suit on a theory of negligence is whether the labeling on a particular product is likely to cause a consumer to rely on the retailer’s reputation as an assurance of the product’s quality. Restatement (Second) of Torts § 400 (1965) comment d. Comment d explains:

The mere fact that the goods are marked with such additional words as “made for” the seller, or describe him as a distributor, particularly in the absence of a clear and distinctive designation of the real manufacturer or packer, is not sufficient to make inapplicable the rule stated in this Section. The casual reader of a label is likely to rely upon the featured name, tradename, or trademark, and overlook the qualification of the description of source.

Applying these principles to the case before the Court, there clearly exists a question of fact as to whether the words appearing on the jack and its container would convey to a consumer the impression that the device was manufactured either by K-Mart or especially for K-Mart by another company. Because plaintiffs’ ability to bring a claim against K-Mart for negligence in designing, manufacturing, and packaging the jack depends on the resolution of this factual issue, I rule that K-Mart’s motion for partial summary judgment should be denied.

Order accordingly.

      . Although Shinn Fu Auto’s motion is denominated a motion for summary judgment, it raises no issue other than that of personal jurisdiction. The Court has therefore treated it as a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(2).

      . It may be noted, however, that the only case which plaintiffs cite as authority for their jurisdictional proposition, Hall v. Helicopteros Nacionales de Colombia, S.A., 638 S.W.2d 870 (Tex.1982), was reversed by the United States Supreme Court more than a month before plaintiffs’ filed their brief opposing Shinn Fu Auto’s motion to dismiss. Helicopteros Nacionales de Colombia, S.A. v. Hall, - U.S. -, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984).


author: DORSEY, District Judge.

text:
    GETTY REFINING AND MARKETING COMPANY v. H.F. ZWIEBEL, et al.
    Civ. No. N-81-550 (PCD).
    United States District Court, D. Connecticut.
    March 19, 1985.

      Louis B. Blumenfeld, Cooney, Scully & Dowling, Hartford, Conn., for plaintiff.
    Robert F. Moriarty, Pullman, Comley, Bradley & Reeves, Bridgeport, Conn., for defendants.
   RULING ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

DORSEY, District Judge.

Plaintiff, Getty Refining and Marketing Company, seeks specific performance of an option to purchase property which is the subject of a lease between plaintiff and defendants, H.F. Zwiebel and Muriel T. Zwiebel. Jurisdiction is invoked pursuant to 28 U.S.C. § 1332, on the basis of diversity citizenship. Plaintiff has moved for summary judgment, Fed.R.Civ.P. 56, asserting that there is no genuine issue of fact and that it is entitled to summary judgment as a matter of law. For the reasons stated below, plaintiff’s motion is granted.

I.

Certain facts are undisputed. A lease was executed by defendants, as lessors, and the Tide Water Associated Oil Company, as lessee, on July 19, 1955. The leasehold commenced on September 7, 1956. The original term was fifteen years beginning on the commencement date. Thereafter, Tide Water Associated Oil Company changed its name to Tide Water Oil Company and subsequently merged with and into Getty Oil Company. By written assignment and assumption dated March 14, 1972, Getty Oil Company assigned and conveyed its right, title and interest in the lease to Getty Oil Company (Eastern Operations), Inc., which subsequently changed its name to Getty Refining and Marketing Company, plaintiff herein.

• The lease contains a provision granting lessee the option to purchase the subject property for a fixed price. Paragraph 15 of the lease states, in pertinent part:

Lessor hereby grants to Lessee the option to purchase said premises ... at the end of the 15th year of this lease or any extension thereof____ Such option may be exercised by written notice from Lessee to Lessor to that effect.

The lease was extended for two five-year periods as provided by Paragraph 14:

Lessor hereby grants to Lessee the option to extend the term of this lease for two additional periods of five years each ... upon thirty dayys’ [sic] written notice to that effect directed to Lessor at Lessor’s aforesaid address, or delivered to Lessor personally, prior to the expiration of the term aforesaid or any extension thereof.

The lease finally expired on Sunday, September 6, 1981, at the end of the second five-year extension. The parties agree that prior to September 6, 1981, an agent of plaintiff contacted defendants’ attorney by telephone and informed him that plaintiff intended to exercise the option to purchase the property. On September 2, 1981, plaintiff sent a letter to defendants by certified mail, return receipt requested, addressed to * defendants’ Florida address. This letter was subsequently forwarded to defendants’ Connecticut address and was actually received in Connecticut on September 9, 1981. A second letter was sent by plaintiff on September 3, 1981, by certified mail, return receipt requested, to defendants’ Connecticut address and was actually received on September 9, 1981. Both letters notified defendants that plaintiff was exercising the option to purchase in accordance with Paragraph 15 of the lease. Defendants refused to convey the property claiming that the option had not been effectively exercised prior to the expiration of the lease. Plaintiff then instituted this action seeking specific performance.

II.

Plaintiff makes four claims:

1. Since Paragraph 15 provides that the option “may be exercised by written notice” (emphasis added), verbal notice was not precluded but was a permissible method of giving notice and it has done so.

2. The option was to purchase “at the end of the 15th year ... or any extension thereof.” Thus, notice before the expiration date was not required as long as the option was exercised within a reasonable time after the expiration date. It claims to have done so.

3. If notice prior to the expiration date was required, the mailing of notices to the Florida and Connecticut addresses of defendants complied with the requirement.

4. If notice of the exercise was effective only if received prior to the expiration, the letter sent to Florida complied as the failure of its receipt was caused by defendants having moved from that address at which the notice would have been received but for their move back to Connecticut.

III.

A.

Summary judgment will be granted if the moving party sustains the burden of proving that (1) there are no genuine issues of material fact, and (2) the moving party is entitled to summary judgment as a matter of law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-61, 90 S.Ct. 1598, 1608-10, 26 L.Ed.2d 142 (1970). In determining whether summary judgment is appropriate, the court does not try issues of fact, but determines whether there are triable issues of fact. Katz v. Goodyear Tire & Rubber Co., 737 F.2d 238, 244 (2d Cir.1984); Heyman v. Commerce & Industry Ins. Co., 524 F.2d 1317, 1319-20 (2d Cir.1975). All ambiguities must be resolved and all reasonable inferences drawn against the moving party. Katz, 737 F.2d 238; Schwabenbauer v. Board of Educ., 667 F.2d 305 (2d Cir.1981).

Defendants argue that genuine issues of material fact clearly exist and point to three issues upon which conflicts in the evidence and interpretations are asserted: (1) Defendants’ proper address for receiving notices from plaintiff; (2) proper method of communicating intent to exercise the option to purchase; and (3) the time period within which notice must have been given. These are questions of construction, not of facts. Resolution of this case may be made on undisputed facts. The letter sent by plaintiff on September 3, 1981, to defendants’ Connecticut address effectively exercised the option to purchase under the terms of the lease.

Paragraph 15 provides that the lessee has an option “at the end of the 15th year of this lease or any extension thereof.” The option “may be exercised by written notice from Lessee to Lessor to that effect.” The requirement is not expressed in terms of actual notice. The question, therefore, is whether notice of exercise of the option was effective when mailed by plaintiff.

The Connecticut Supreme Court has addressed, albeit obliquely, the issue of the effectiveness of notice in Parkway Trailer Sales, Inc. v. Wooldridge Bros., 148 Conn. 21, 166 A.2d 710 (1960). There, the lease contained an option to purchase which could be exercised at any time during, or at the end of, the term of the lease or extension thereof. Plaintiff-lessee sent a letter to defendant-lessors, prior to the expiration of the renewal term, notifying defendants of plaintiff’s exercise of the option. The lease was silent regarding the manner in which the option was to be exercised and defendants, while acknowledging receipt of the letter before the expiration of the extension, claimed that effective exercise could be accomplished only by tender of the purchase price. Noting that the lease failed to specify any particular method of exercising the option, the court stated that the lease “conferred a privilege upon the plaintiff which did not become binding upon any party until the plaintiff notified the defendants that it was taking up the option. This it did when its attorney sent the letter of April 17, 1957 to Wooldridge. Thereupon a binding bilateral contract came into being____” Id. at 25, 166 A.2d 710 (emphasis added). The court appears to have accepted the trial court’s characterization of the letter as accepting a continuing offer, creating a new, bilateral contract between the parties upon defendants receipt of the notice. Performance of that contract was required within a reasonable time after expiration of the lease. Thus, the distinction drawn by the trial court between the exercise of the option and the creation of a bilateral contract of sale “which came into being when the defendants received notice that the option was being exercised,” was sustained. Regardless of when that contract was created, the notice of exercise of the option was effective when sent. Id.

In White v. RCA Serv. Co., 234 N.W.2d 153 (Iowa 1975), the landlord brought an action to eject the tenant from the leased premises. The lease gave the tenant “the right to extend the term of this lease ... by giving written notice to that effect to the Landlord on or before February 1, 1971.” The tenant mailed a letter of intent to exercise the option on January 29, 1971.. Although the letter was not received by the landlord until February 4, 1971, the tenant was held to have complied with the provision governing the option and that the notice was complete when it was mailed. See also, Shubert Theatrical Co. v. Rath, 271 Fed. 827 (2d Cir.1921) (applying New York law and holding that notice of exercise of option was effective when mailed).

Defendants cite a number of cases declining to apply the “mailbox rule” to option contracts and urge adoption of the reasoning of those cases in determining the effectiveness of the notice in this case. However, even if the Connecticut court had not spoken on the subject, the language of the lease itself undercuts defendants’ argument. Paragraph 18 specifically states that all notices “shall be deemed to be duly given if forwarded by either party, by registered mail, to the other party at such party’s address appearing at the beginning of this lease____” (Emphasis added). The term “forward” is defined as meaning to transmit or to send toward the place of destination. Black’s Law Dictionary, Fifth Edition (1979). Therefore, the lease itself contemplates effective exercise of the option upon the dispatch of notice and not necessarily upon receipt. A similar case was Hill v. Gulf Oil Corp., 200 Va. 287, 105 S.E.2d 625 (1958), where the lessee had an option to purchase upon written notice mailed to the lessors no later than December 14, 1956. The lessee mailed a letter of notice of intent to exercise the option on December 14, 1956, which was never received by lessors and was finally returned to lessee on December 31,1956. The notice was held to be sufficient under the terms of the lease. In response to the lessor’s contention that actual notice was required, the court stated:

The ready answer to this contention is that the contract between the parties does not require ‘actual notice,’ nor does it specify that the notice is to be ineffective unless and until it is received by the lessors.

The parties were held to have agreed that a properly mailed notice was effective when sent. So in this case, there is no requirement of actual notice and Paragraph 18 specifies the effectiveness of a written notice when mailed. The parties did not specify that notice could be effective only on receipt. They could have so provided. They did not. The court may not, and will not, supply an added term to the agreement now deemed desirable by one party.

Defendants also claim that plaintiffs notice does not satisfy Paragraph 18 because the letters were sent by certified mail, rather than registered mail as specified in Paragraph 18. In Korey v. Sheff, 3 Mass.App. 266, 267, 327 N.E.2d 896 (1975), the lease provided that any notice exercising an option to renew “shall be deemed duly given if and when mailed by registered mail.” The provision was held not to require that notice be sent by registered mail but rather a letter sent via ordinary mail was considered a timely exercise of the option. See also, Gerson Realty, Inc. v. Casaly, 2 Mass.App. 875, 316 N.E.2d 767 (1974); Fletcher v. Frisbee, 119 N.H. 555, 404 A.2d 1106 (1979).

The language of Paragraph 18 is similar to the clause interpreted in Korey. Registered mail is specified. However, the provision does not expressly exclude other methods of transmission, such as certified mail. Defendants have cited no authority to support so restrictive a reading of Paragraph 18 which would condition the effectiveness of notice on the use of one method of transmission. The letter sent by plaintiff, via certified mail, return receipt requested, to defendants’ Connecticut address, therefore, satisfied the requirements of Paragraph 18 and constituted effective notice of the exercise of the option to purchase.

B.

The result would be the same even if notice was not effective until received by defendants. Under the terms of the lease, the option to purchase must be exercised “at the end o/the 15th year of this lease or any extension thereof____” (Emphasis added). The interpretation of the language of a lease is a question of law for the court. Robinson v. Weitz, 171 Conn. 545, 551, 370 A.2d 1066 (1976); Libero v. Lumbermens Mut. Cas. Co., 143 Conn. 269, 275, 121 A.2d 622 (1956). The Connecticut Supreme Court has stated that “[i]n construing a lease the ‘controlling factor is the intent expressed in the lease, not the intent which the parties may have had or which the court believes they ought to have had.’ ” Robinson, 171 Conn. at 551, 370 A.2d 1066, quoting from Ingalls v. Roger Smith Hotels Corp., 143 Conn. 1, 6, 118 A.2d 463 (1956).

Although the Connecticut courts have not interpreted the provision involved here, courts in other jurisdictions have held that the phrase “at the end of” the term means within a reasonable time after expiration of the lease. Sparkman v. Etter, 249 Ark. 93, 458 S.W.2d 129 (1970); Getzandaner v. Erbstein, 341 Ill.App. 594, 94 N.E.2d 746 (1950); Davidson v. Crump Mfg. Co., 99 Mich. 501, 58 N.W. 475 (1894).

In the case at bar, the lease does not contain any language expressly requiring notice before the expiration date of the term of the lease. The phrase “at the end of” in Paragraph 15 must be interpreted to mean within a reasonable time after expiration if the provision is to have any practical effect. Such an interpretation is appropriate especially in light of the language of Paragraph 14 which specifically requires notice of renewal prior to the expiration date of the term. If the parties had intended to require notice prior to expiration it could easily have been so provided. The use of the flexible phrase “at the end of” manifests an intention of the parties to allow exercise of the option within a reasonable time of the lease’s expiration.

What constitutes a reasonable time is generally a question of fact for the jury. International Tool & Gauge Co. v. Borg, 145 Conn. 644, 145 A.2d 750 (1958); Loomis v. Norman Printers Supply, 81 Conn. 343, 71 A. 358 (1908). However, the question need not be submitted to the trier of fact if there is only one conclusion which is reasonably possible. Id. at 347, 71 A. 358. In this case, it is undisputed that plaintiff mailed the letter giving notice on September 3,1981, to defendants’ Connecticut address. Delivery, dependent on the Postal Service, could have occurred on September 4th or 5th. The lease expired on Sunday, September 6, 1981. Monday, September 7, 1981, was a legal holiday. Delivery of the letter was attempted on Tuesday, September 8, 1981, but could not be completed because defendants were not at home to sign the receipt. Defendants finally received the letter on Wednesday, September 9th. Under the circumstances, as a matter of law, actual receipt of the notice occurred within a reasonable time and the letter, therefore, effectively exercised the option to purchase.

Since this court has determined that the option to purchase was effectively exercised by the September 3, 1981, letter, it is unnecessary to address plaintiffs other claims.

For the reasons stated above, summary judgment shall enter.

Plaintiff shall prepare, on or before March 29, 1985, an appropriate judgment including an order with respect to conveyance and defendants shall comment on the form of the proposed judgment on or before April 5, 1985.

SO ORDERED.

      . The trial court opinion is contained in the Connecticut Supreme Court records and briefs (November 1960 Term).