text:
    Maryann ADDIE, Individually, and Vicky Ann Addie, By and Through Her Mother and Next Friend, Maryann Addie, Plaintiffs, v. MACK TRUCKS, INC., Rockwell International Corporation, and Southwest Wheel, Inc., Defendants.
    No. 85-1209C(1).
    United States District Court, E.D. Missouri, E.D.
    July 22, 1985.
    John D. Anderson, St. Louis, Mo., for plaintiffs.
    Ben Ely, Jr., Robert A. Wulff and Louis W. Riethmann, St. Louis, Mo., for defendants.
   MEMORANDUM

NANGLE, Chief Judge.

This case is now before this Court on defendants’ various motions to dismiss. For the reasons stated below, these motions are granted in part and denied in part.

Plaintiffs’ cause of action arises out of the death of Douglas Addie on July 26, 1979, in an accident on Interstate Highway 55, in the City of St. Louis, State of Missouri. At the time of the accident, Douglas Addie was driving a truck for Southwestern Transportation Company. According to the complaint, the truck driven by Douglas Addie was manufactured by defendant Mack Trucks, Inc. (hereinafter “Mack Trucks”), it contained a drag link manufactured by defendant Rockwell International Corporation (hereinafter “Rockwell”), and said drag link was installed prior to July 26, 1979, by defendant Southwest Wheel, Inc. (hereinafter “Southwest Wheel”). Plaintiff Maryann Addie was the wife of Douglas Addie and plaintiff Vicky Ann Addie was the daughter of Douglas Addie. Plaintiffs’ complaint states a claim for wrongful death and asserts theories of negligence and strict products liability as bases for relief. In Count I, plaintiff Maryann Addie seeks damages in the amount of $1,000,000.00 and Vicky Ann Addie seeks the same amount in Count II. In addition, defendant Mack Trucks filed cross-claims for indemnity and contribution against defendants Rockwell and Southwest Wheel.

All three (3) defendants move to dismiss plaintiffs’ complaint on the ground that it is barred by the applicable statute of limitations. Further, defendants Rockwell and Southwest Wheel move to dismiss Mack Trucks’ cross-claims. The undisputed facts relevant to these motions are that the accident in question occurred on July 26, 1979; plaintiffs filed a similar action only against defendant Mack Trucks on May 25, 1982; said action was voluntarily dismissed without prejudice on October 15, 1984; plaintiffs’ instant action was filed on May 23, 1985; and defendant Mack Trucks’ cross-claims were filed on June 21, 1985.

The parties are in agreement that the applicable statute of limitations is found in § 537.100 R.S.Mo. (1978), which statute provides for a limitations period of three (3) years in wrongful death actions. In addition, the statute provides, as follows:

[I]f any [wrongful death] Action shall have been commenced within the time prescribed in this section, and plaintiff therein take or suffer a non-suit, ... such plaintiff may commence a new action from time to time within one year after such non-suit suffered____

§ 537.100 R.S.Mo. (1978).

Plaintiffs’ actions against defendants Rockwell and Southwest Wheel are clearly time-barred. As to these defendants, who were not named as defendants in the original 1982 complaint, plaintiffs’ claims became time-barred on July 26, 1982. The savings clause in § 537.100 is not applicable because defendants Rockwell and Southwest Wheel were not named as defendants in the first suit. Foster v. Pettijohn, 353 Mo. 84, 213 S.W.2d 487 (1948). See also Tanner v. Presidents-First Lady Spa, Inc., 345 F.Supp. 950 (E.D.Mo.1972); Western Casualty & Surety Co. v. Lamping, 507 S.W.2d 38 (Mo.Ct.App.1974).

Plaintiffs’ cause of action against defendant Mack Trucks, however, is not time-barred. Because plaintiffs’ complaint against said defendant was timely filed in 1982, and because the instant action was filed within one year of the October 15, 1984 voluntary dismissal, the instant action comes within the savings clause found in § 537.100. Therefore, plaintiffs’ complaint against defendant Mack Trucks is timely. Tice v. Milner, 308 S.W.2d 697 (Mo.1957).

Defendants Rockwell and Southwest Wheel also moved to dismiss Mack Trucks’ cross-claims for indemnity and contribution. They argue that, if plaintiffs’ action against them is time-barred, then Mack Trucks’ cross-claims are also time-barred. However, Mack Trucks’ claims against defendants Rockwell and Southwest Wheel are not governed by the same period of limitations as plaintiffs’ claim. Missouri Supreme Court Rule 52.11(a) provides, as follows:

At any time after commitment commencement of the action a defending party, as a third-party plaintiff, may cause a summons and petition to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him.

The Supreme Court of Missouri recently interpreted Rule 52.11(a) in State ex rel. General Electric Co. v. Gaertner, 666 S.W.2d 764, 765-67 (Mo. banc 1984), and held that a third-party plaintiff may implead a third-party defendant under said Rule after the statute of limitations has expired on the claim asserted by the original plaintiff. The court held “that a tort feasor may seek to enforce his or her right to obtain a relative apportionment of damages by means of third-party practice as authorized by Rule 52.11(a) during the pendency of the original plaintiff’s timely filed suit, whether or not the statute of limitations has expired on the original claim of the plaintiff.” Id. at 767. In the opinion of this Court, the General Electric decision supports this Court’s conclusion that Mack Trucks’ cross-claims against defendants Rockwell and Southwest Wheel are timely. The fact that Mack Trucks’ claims against defendants Rockwell and Southwest Wheel were originally denominated cross-claims and both Rockwell and Southwest Wheel are technically no longer parties defendant is not material. 6 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 1431 at 163 (1971). However, to clarify the pleadings in this case, defendant Mack Trucks should refile its claims against defendants Rockwell and Southwest Wheel as third-party claims and defendant Mack Trucks is granted leave to do so within fifteen (15) days of this date.

Accordingly, defendant Mack Trucks’ motion to dismiss plaintiffs’ complaint is denied, defendants Rockwell and Southwest Wheel’s motions to dismiss plaintiffs’ complaint are granted, and defendants Rockwell and Southwest Wheel’s motion to dismiss defendant Mack Trucks’ cross-claims are denied.


source: Caselaw Access Project

author: NANGLE, Chief Judge.

license: Public Domain

text:
    James NELSON, Plaintiff, v. R. GREENSPAN & COMPANY, INC., et al., Defendants.
    No. 85-998C(1).
    United States District Court, E.D. Missouri, E.D.
    July 22, 1985.

      Herbert D. Schaeffer, St, Louis, Mo., for plaintiff.
    Ronald E. Fox, St. Louis, Mo., for defendants.
   MEMORANDUM

NANGLE, Chief Judge.

This case is now before this Court on defendants’ motion to dismiss for lack of personal jurisdiction or, in the alternative, to transfer this case to the United States District Court for the Eastern District of New York. For the reasons stated below, this Court denies defendants’ motions.

Plaintiff's complaint states claims for negligent or intentional misrepresentation and breach of contract. Plaintiff alleges that defendants, a New York corporation and its chief operating officers, induced plaintiff to move his family from St. Louis, Missouri, to New York through false representations. According to the complaint, plaintiff is knowledgeable with respect to “wicker” merchandise and, since June of 1982, worked for the defendants as an independent contractor on a consulting basis with respect to wicker products. Under this arrangement, plaintiff commuted weekly to New York and was paid a weekly sum of money. Thereafter, plaintiff sought to terminate his business relationship with defendants. However, defendants allegedly responded by making several representations to plaintiff and requesting him to move to New York to become an employee of the defendant corporation. Plaintiff alleges that he relied on defendants’ representations and accepted their offer of employment. It can be inferred from the complaint that the offer was accepted by plaintiff in Missouri. Plaintiff alleges that he moved to New York and that defendants’ representations were false. In Count I of his complaint, plaintiff alleges that defendants knew or should have known that their representations were false. In Count II of his complaint, plaintiff alleges that defendants breached their contract with plaintiff.

In passing on a motion to dismiss for lack of jurisdiction over a non-resident, a federal diversity court is required to engage in a two-step inquiry: first, whether defendant committed one of the acts enumerated in the long-arm statute; and second, whether the exercise of personal jurisdiction over defendant violates the due process clause of the fourteenth amendment. The Land-O-Nod Company v. Bassett Furniture Industries, Inc., 708 F.2d 1338 (8th Cir.1983); Scullin Steel Co. v. National Railway Utilization Corp., 676 F.2d 309, 312 (8th Cir.1982). Plaintiff, the party that is seeking to invoke federal jurisdiction, has the burden of establishing that jurisdiction exists, and this burden may not be shifted to the party challenging the jurisdiction. Mountaire Feeds, Inc. v. Agro Impex, S.A., 677 F.2d 651, 653 (8th Cir.1982). While the facts are viewed in the light most favorable to the plaintiffs, “there must nonetheless be some evidence upon which a prima facie showing of jurisdiction may be found to exist____” Aaron Ferer & Sons Co. v. Diversified Metals Corp., 564 F.2d 1211, 1215 (8th Cir.1977) (citations omitted). See also Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 1285 (9th Cir.1977) (plaintiff need only make a prima facie showing of jurisdictional facts through submission of affidavits plus discovery materials); Greycas, Inc. v. Anderson, 584 F.Supp. 894, 895-96 (E.D.Mo.1984); 4 Wright & Miller, Federal Practice and Procedure: Civil § 1068 at 250 (1969).

Missouri’s Long-Arm statute provides:
1. Any person or firm, whether or not a citizen or resident of this state, or any corporation, who in person or through an agent does any of the acts enumerated in this section, thereby submits such person, firm, or corporation, and, if an individual, his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any such acts:
(1) The transaction of any business within this state;
(2) The making of any contract within this state;
(3) The commission of a tortious act within this state;
(4) The ownership, use, or possession of any real estate situated in this state;
(5) The contracting to insure any person, property or risk located within this state at the time of contracting.
2. Only causes of action arising from acts enumerated in this section may be asserted against a defendant in an action in which jurisdiction over him is based upon this section.

§ 506.500, R.S.Mo. (1982).

The due process clause of the fourteenth amendment places limits upon the power of a court to exercise personal jurisdiction over a non-resident defendant. The due process clause requires that a defendant have certain minimum contacts with the forum state such that the maintenance of the suit does not offend “tradi-. tional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945); Land-O-Nod, 708 F.2d at 1340. Accord World Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980); Kulko v. California Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978). “In judging minimum contacts, a court properly focuses on ‘the relationship among the defendant, the forum, and the litigation.’ ” Calder v. Jones, 465 U.S. 783, —, 104 S.Ct. 1482, 1486, 79 L.Ed.2d 804 (1984) (citations omitted). See also Helicopteros Nacionales de Colombia S.A. v. Hall, 466 U.S. 408, 104 S.Ct 1868, 1872, 80 L.Ed.2d 404 (1984). The defendant’s contacts with the forum state must be purposeful and such that defendant “should reasonably anticipate being haled into court there.” World Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. at 567. See also Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958).

In this circuit, the due process standard has devolved into a consideration of five factors:

(1) the nature and quality of the contacts with the forum state; (2) the quantity of the contacts with the forum state; (3) the relation of the cause of action to the contacts; (4) the interest of the forum state in providing a forum for its residents; and (5) the convenience of the parties.

Aaron Ferer & Sons Co. v. Diversified Metals Corp., 564 F.2d 1211, 1215 (8th Cir.1977). See Land-O-Nod, 708 F.2d at 1340. The first three factors are of primary importance and the last two are of secondary importance. Id.

In the opinion of this Court, defendants were properly served under Missouri’s long-arm statute, because plaintiff has made a prima facie showing that defendants committed a tortious act outside the State of Missouri which was intended to cause and did cause consequences within the State of Missouri. In Sun World Lines, Ltd. v. March Shipping Corporation, 585 F.Supp. 580 (E.D.Mo.1984), this Court stated, as follows:

The tortious act component of § 506.500 has been interpreted to apply to extraterritorial acts that have consequences in the forum. See State ex rel. Deere and Company v. Pinnell, 454 S.W.2d 889 (Mo. banc 1970); State ex rel. Apco Oil Corporation v. Turpin, 490 S.W.2d 400 (Mo.App.1973). This interpretation- is consistent with Missouri courts’ broad interpretation of § 506.500 to extend jurisdiction of Missouri courts over non-resident defendants to the extent permissible under the due process clause. State ex rel. Newport v. Wiesman, 627 S.W.2d 874, 876 (Mo. banc 1982). In Pfeiffer v. International Academy of Biomagnetic Medicine, 521 F.Supp. 1331 (W.D.Mo.1981), the court stated the applicable rule, as follows:
A non-resident defendant “commits a tortious act within the state” [consistent with § 506.500 and due process] when, through wholly extraterritorial acts it sets in motion a course of action deliberately designed to move into the forum state in order to injure plaintiff’s business.

Id. at 1336 (citations omitted).

Sun World Lines, Ltd., at 584.

As in Sun World Lines, Ltd., plaintiff herein alleges intentional and negligent tortious conduct on the part of defendants which caused actionable consequences in Missouri to Missouri residents. It can be inferred from the conduct complained of in Count I that defendants allegedly set in motion a course of action which defendants intended to move in to Missouri in order to harm plaintiff. In addition, it can be inferred from plaintiffs complaint that defendants were acting in both their corporate and individual capacities. Accordingly, plaintiff has made a prima facie showing that defendants’ conduct satisfies the tortious conduct prong of Missouri’s long-arm statute.

In addition, due process standards are not violated by exercising in personam jurisdiction over defendants with respect to Count I. A single tortious act is sufficient to support personal jurisdiction consistent with due process standards. See Institutional Food Marketing Associates, Ltd. v. Golden State Strawberries, Inc., 587 F.Supp. 1105 (E.D.Mo.1983), aff'd 747 F.2d 448 (8th Cir.1984). Plaintiff alleges that defendants knew their conduct would harm plaintiff in Missouri and that their conduct was directed at plaintiff in Missouri. The nature and quality of this contact with Missouri satisfies due process standards. The alleged conduct is far from “mere untargeted negligence.” Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984). Defendants’ alleged misconduct was “purposefully directed” toward Missouri residents. Keeton v. Hustler Magazine, Inc., 465 U.S. 770, ---, 104 S.Ct. 1473, 1478, 79 L.Ed.2d 790 (1984). In these circumstances, personal jurisdiction over defendants does not offend “fair play and substantial justice”, even though defendants never physically entered Missouri. Burger King Corporation v. Rudzewicz, — U.S. ---, ---, 105 S.Ct. 2174, 2184, 85 L.Ed.2d 528 No. 83-2097, slip op. at 14 (May 20, 1985).

Count II, of course, is a breach of contract action and personal jurisdiction must be valid as to each and every cause of action in a complaint. S.L. Kaye Co., Inc. v. Dulches Anahuac, S.A., 524 F.Supp. 17 (S.D.N.Y.1981); R.F.D. Group, Ltd. v. Rubber Fabricators, Inc., 323 F.Supp. 521 (S.D.N.Y.1971). In the case at bar, however, this Court is convinced that personal jurisdiction is also appropriate as to Count II, even though defendants' contacts with Missouri might not be sufficient for them to be subject to personal jurisdiction in Missouri with respect to Count II alone. Plaintiff’s breach of contract claim is based on the same core facts as the fraud claim and requiring plaintiff to bring the contract claim in another forum would result in unnecessary duplicative litigation and a waste of judicial resources. This result is inconsistent with the federal rule of judicial economy. See C. Wright, A. Miller and M. Kane, Federal Practice & Procedure: Civil § 1069 at 85 n. 82 (1983 Supp.). Moreover, defendants will not be prejudiced in defending against Count II in Missouri, because it already has to defend the tort claim in Count I here. Sun World Lines, Ltd., at 584-585. Accordingly, defendants’ motion to dismiss plaintiff’s complaint for lack of personal jurisdiction be and is denied.

Further, defendants’ alternative motion to transfer is denied. Defendants’ motion to transfer is based on the doctrine of forum non conveniens as codified in 28 U.S.C. § 1404(a). In the opinion of this Court, New York is as inconvenient a forum to plaintiff as Missouri is to defendants. The weight to be given to plaintiff’s choice of forum outweighs any potential inconvenience to defendants and their witnesses. It is only as a result of the allegedly wrongful conduct of defendants that several witnesses are located in New York. Accordingly, defendants’ alternative motion to transfer is denied.


text:
    Wilson JEANNELLE, et al., Plaintiffs, v. THOMPSON MEDICAL COMPANY, INC., a corporation, Defendant.
    No. 85-799C(1).
    United States District Court, E.D. Missouri, E.D.
    July 22, 1985.

      Burton Newman, St. Louis, Mo., for plaintiffs.
    Ben Ely, Jr., St. Louis, Mo., for defendant.
   MEMORANDUM

NANGLE, Chief Judge.

This ease is now before the Court on defendant’s motion to dismiss plaintiff Nathan Schnitzmeier’s claims. Defendant’s motion is not directed to the claims of the other plaintiffs. This Court denies defendant’s motion to dismiss.

Plaintiffs’ cause of action arises from violent attacks by Christopher Young. Both parties admit that defendant manufactured and placed in the stream of commerce a drug named Promaline. Plaintiffs allege that Christopher Young bought and consumed Promaline, that Promaline is an unreasonably dangerous drug, and that said drug caused his violent behavior. Plaintiffs Wilson Jeannelle, Judy Schnitzmeier, and Tony Schnitzmeier claim damages for physical and mental suffering as well as punitive damages. Plaintiff Nathan Schnitzmeier, although not physically injured, claims damages for emotional distress on the ground that he was foresee-ably in the zone of danger and forced to witness the attack upon his mother and brother, causing his mental anguish. Plaintiffs rely on a theory of strict products liability.

The basis of subject matter jurisdiction in this case is diversity of citizenship. “In a federal diversity case the district court applies the substantive law of the forum state.” Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Defendant moves to dismiss plaintiff Nathan Schmitzmeier’s claims, because no Missouri case recognizes a cause of action for emotional distress on a strict products liability theory. The question is one of first impression in Missouri and, therefore, this Court must predict how Missouri courts would rule. See C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure: Jurisdiction § 4246 n. 28 (1978).

In passing on a motion to dismiss, a court is required to view the facts alleged in the complaint in the light most favorable to the plaintiff. Scheur v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 474 (1974); Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). A motion to dismiss will not be granted merely because the complaint does not state every element necessary for recovery with precision. 5 Wright & Miller, Federal Practice and Procedure: Civil § 1216 at 120 (1969). A complaint is sufficient if it “contains allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial.” Id. at 122-123. A complaint should not be dismissed unless it “appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley, 355 U.S. at 45-46, 78 S.Ct. at 101-02.

This Court predicts that Missouri would allow a bystander to recover for emotional distress on a strict products liability theory. This conclusion is based on Missouri courts’ resolution of related issues and the holdings of other jurisdictions on point. Missouri courts allow plaintiffs to sue for emotional distress without physical impact and allow bystanders to recover under a theory of strict products liability.

In Bass v. Nooney, 646 S.W.2d 765 (Mo.1983), the Missouri Supreme Court held that “a plaintiff will be permitted to recover for emotional distress provided: (1) the defendant should have realized that his conduct involved an unreasonable risk of causing the distress; and (2) the emotional distress or mental injury must be medically diagnosable and must be of sufficient severity as to be medically significant.” Bass, 646 S.W.2d at 772. Thus, Missouri has adopted the so-called “no impact” rule with respect to recovery for emotional distress. Plaintiff Schnitzmeier’s complaint alleges both severity and foreseeability.

The Supreme Court of Missouri also allows bystanders to recover for personal injuries under a theory of strict products liability. Giberson v. Ford Motor Company, 504 S.W.2d 8 (Mo.1974). In Giberson, the plaintiffs were blinded by smoke when the motor of an automobile, produced by the defendant and driven by a third party, exploded and caused a collision. The court reasoned that the purpose of strict products liability “is to insure that the costs of injuries resulting from defective products are borne by the manufacturers.” Giberson, 504 S.W.2d at 10.

Because no Missouri court has squarely ruled on the validity of bystander claims for emotional distress in a strict products liability claim, this Court must look to other jurisdictions to determine how Missouri courts would probably decide the question. Of the few jurisdictions that have ruled on the issue, the majority have allowed recovery. An Iowa court allowed a woman to maintain an action in strict products liability for emotional distress when she witnessed her brother being killed by a defective forklift, which rolled over on him. Walker v. Clark Equipment Co., 320 N.W.2d 561 (Iowa 1982). A California court allowed the parents of two children to recover for emotional distress under a theory of strict products liability when their two children were thrown from a car as a result of a defective door latch. Shepard v. Superior Court of Alameda County, 76 Cal.App.3d 16, 142 Cal.Rptr. 612 (1st Dist.Cal.App.1977). More recently, another California court allowed a passenger in a defective boat to recover damages for emotional distress when she witnessed a water skier suffer multiple lacerations from the propeller. Kately v. Wilkinson, 148 Cal. App.3d 576, 195 Cal.Rep. 902 (5th Dist.Cal.App.1984).

In the opinion of this Court, Missouri would follow the precedent set by the courts of California and Iowa. The rulings of Missouri courts in Giberson, allowing physically injured bystanders to collect on a claim of strict products liability, and Bass, allowing plaintiffs to recover for emotional distress without physical impact, are adequate indication that Missouri would allow a bystander to recover damages for emotional distress on a strict products liability claim.

Accordingly, plaintiff Nathan Schnitzmeier’s complaint states a claim upon which relief can be granted, and defendants’ motion to dismiss must be denied.


author: WHITMAN KNAPP, District Judge.

text:
    UNITED STATES of America v. $4,000 IN U.S. CURRENCY, Defendant.
    No. 84 Civ. 5197 (WK).
    United States District Court, S.D. New York.
    July 23, 1985.
    Rudolph W. Giuliani, U.S. Atty., S.D.N.Y. by Frederick M. Lawrence, Asst. U.S. Atty., New York City, for plaintiff.
    Frank David Bagguley, pro se.
   MEMORANDUM & ORDER

WHITMAN KNAPP, District Judge.

This forfeiture proceeding is before us on the Government’s motion, for summary judgment. The Government’s motion is opposed by the claimant, Frank David Bagguley, appearing pro se, from whom the $4,000 (defendant-in-rem) was seized by agents of the Drug Enforcement Agency (“DEA”). For the following reasons, we grant the Government’s motion.

FACTS

In March of 1983 claimant Bagguley and an associate arranged for an unidentified individual to smuggle heroin from Thailand to the United States. Unbeknownst to Bagguley and his associate, the would-be smuggler was a confidential informant of the DEA. It was agreed that the informant, after smuggling a package of heroin into New York, would contact Bagguley at a certain telephone number, later determined to correspond to telephone service for apartment 2-F at 251 East 32nd Street in Manhattan (the “apartment”).

Bagguley gave the informant approximately $3,000 in Thai currency as partial payment for his smuggling services, and, immediately prior to his departure from Thailand, the informant received the package of heroin he was to smuggle. On his trip from Thailand to New York the informant was accompanied by a DEA agent, whom Bagguley and his associate believed was á savvy drug smuggler.

After arriving in New York the agent contacted Bagguley at the pre-arranged phone number and arranged a meeting for the afternoon of March 25, 1983. During that meeting Bagguley explained he would be able to make final payment to the agent and informant after he collected proceeds from expected sales of narcotics, which other couriers were bringing later that day. The agent and the informant kept the package of heroin they had “smuggled” in anticipation of final payment for their services.

Several phone calls on March 25, 1983 and during the next several days finally resulted in another meeting of Bagguley, the agent and the informant. The Government asserts that at this meeting, which took place the evening of March 29,1983 at a Holiday Inn in Manhattan, the agent gave Bagguley a package of substituted heroin and received $1,000 in U.S. currency along with a promise of a final payment of $23,000 to be made later that day. Bagguley was arrested immediately following the meeting.

At about the same time, the apartment on 32nd Street was searched, pursuant to a search warrant issued by the Honorable Leonard Bernikow, United States Magistrate. The Government claims that during the search DEA agents found $3,000 in U.S. currency inside a briefcase that also contained Bagguley’s passport and birth certificate. The tenant of the apartment was present during the search and identified the briefcase as belonging to Bagguley.

Bagguley disputes only certain aspects of the Government’s scenario and, for the reasons discussed below, his alternative scenario does not raise material issues of fact that would defeat a motion for summary judgment. Bagguley contends that the entire $4,000 at issue in this case was seized at his arrest, and that an additional $700 was taken but later returned. Notably, Bagguley does not dispute the allegation that $1,000 was actually handed over to the agent, nor does he deny promising to make a substantial final payment.

DISCUSSION

Title 21 U.S.C. § 881(a)(6) provides, in relevant part for the forfeiture of all money

... furnished or intended to be furnished by any person in exchange for a controlled substance in violation of this sub-chapter, all proceeds traceable to such an exchange, and all moneys ... used or intended to be used to facilitate any violation of this subchapter.

The Government bears the initial burden of proving probable cause for seizure of the money at issue. 21 U.S.C. § 881(d); United States v. $2,500 in United States Currency (2d Cir.1982) 689 F.2d 10, 12, cert. denied — U.S. ---, 104 S.Ct. 1591, 80 L.Ed.2d 123 (1984). After this showing has been made the burden shifts to the claimant to establish, by a preponderance of the evidence, that the money at issue is not so connected to a narcotics transaction as to be subject to forfeiture. United States v. $131,602.00 in U.S. Currency, 563 F.Supp. 921, 923 (S.D.N.Y.1982).

The Government can satisfy its burden by showing a reasonable ground for belief that a substantial connection exists between the money to be forfeited and criminal activity, as defined in subchapter I of Title 21. United States v. $364,960.00 in U.S. Currency (5th Cir.1981) 661 F.2d 319, 323. Circumstantial evidence can be sufficient to make this showing, so long as the belief is reasonable when all circumstances are considered. United States v. $93,685 (9th Cir.1984) 730 F.2d 571, 572, cert. denied — U.S. — , 105 S.Ct. 119, 83 L.Ed.2d 61 (1984); United States v. U.S. Currency, etc. (E.D.N.Y.1980) 495 F.Supp. 147, 150.

Because this action is before us on a motion for summary judgment, we must resolve all factual discrepancies in favor of the party opposing the motion. See United States v. Diebold, Inc. (1962) 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176. Ironically, this axiom requires us to assume the Government’s version of where the cash was seized rather than the claimant’s version, because the claimant’s asserted scenario presents an even stronger case for a reasonable belief that the cash was sufficiently related to a narcotics transaction.

The Government must show probable cause for seizing two separate amounts of cash: the $1,000 seized at the arrest site and the $3,000 seized at the apartment. For the cash seized at the arrest site, the Government’s burden is easily met. The $1,000 was actually paid over to a DEA agent as partial payment for smuggling a package of heroin into the United States, clearly supporting a reasonable belief that it was furnished or intended to be furnished in violation of Federal narcotics laws.

The $3,000 seized from the apartment presents a slightly more difficult situation for the Government because it was not actually handed over to a DEA agent in exchange for illegal services. Still, the affidavits presented by the Government reveal abundant grounds for reasonable belief that the $3,000 was substantially connected to an illegal narcotics transaction. Immediately prior to his arrest, Bagguley stated his intention to return later the same evening with $23,000 for a final payment Earlier, during the first meeting in New York, Bagguley told his “smugglers” that he would be collecting proceeds from narcotics sales in order to make final payment for their services. Since $3,000 is “substantially greater than is commonly kept in residential premises by law-abiding wage earners,” United States v. $2,500 in U.S. Currency, supra, 689 F.2d at 16, its presence among Bagguley’s personal belongings in the apartment supports an inference that it was collected as proceeds from a narcotics sale, intended as part of the final payment, or both.

Having found that the Government has met its burden of probable cause, we must now consider whether the claimant has made any allegation which, if proven, would be sufficient to meet his burden in opposition to forfeiture. When cash is the subject of a forfeiture proceeding, a claimant can prevail upon a showing of an alternate source for the funds, and by refuting, with whatever facts deemed persuasive, any inference of intention to use the funds for an illegal narcotics transaction. , See United States v. $131,602.00 in U.S. Currency, supra, 563 F.Supp. at 923.

Bagguley has made no allegations that would, if proven, meet his burden in this case. His claim that all $4,000 was seized at his arrest has no effect other than to strengthen the Government’s showing of probable cause for seizure. His claim that an additional amount of money was seized and later returned, while certainly curious, has no bearing on the probable cause for the seizure at issue in this case, nor does it reveal any grounds for questioning forfeiture of the $4,000 retained by the Government.

In summary, the Government’s motion for summary judgment is granted.

SO ORDERED.

      . Having noted that the claimant seemed to misunderstand the nature of his burden under the applicable forfeiture statute, we invited him, by letter dated June 21, 1985 to supplement his response if he were so inclined. This resulted in a letter of July 4, 1985 from the claimant and a response from the Government dated July 19, 1985. Both have been made a part of the official record, but do not require further comment.


author: CARRIGAN, District Judge.

text:
    John A. LEFEVER, Plaintiff, v. James D. VICKERS, et al., Defendants.
    Civ. A. No. 84-C-1276.
    United States District Court, D. Colorado.
    July 23, 1985.
    Jeffrey A. Springer, Jeffrey A. Springer, P.C., Denver, Colo., for plaintiff.

      Donald Phillipson, Denver, Colo., Jack M. Wesoky, Englewood, Colo., Michael A. Davis, Aurora, Colo., Herbert A. Delap, Denver, Colo., for defendants.
   ORDER

CARRIGAN, District Judge.

This action arises out of numerous business transactions between Jet Executive Transportation Services, Ltd. (Jet), and one of the defendants, James D. Vickers. Jet has assigned its interest in the case to the plaintiff, James A. Lefever.

Plaintiff has asserted ten claims, only one of which raises a federal question. Plaintiffs sixth claim alleges violations of 15 U.S.C. § 78j(b) and Rule 10b-5, 17 C.F.R. 240.10b-5 (1985), promulgated under the Securities Exchange Act of 1934. Jurisdiction is based on 28 U.S.C. § 1331 (1982). Although the plaintiffs complaint alleges jurisdiction under 28 U.S.C. § 1332 (1982), the plaintiff as well as two of the defendants reside in Colorado. Therefore, the plaintiff may not invoke this court’s diversity jurisdiction. Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806). Subject matter jurisdiction over the plaintiff’s state law claims depends on this court’s pendent jurisdiction.

The exercise of pendent jurisdiction in federal securities cases is often inappropriate. For the reasons articulated by Judge Matsch in Kerby v. Commodity Resources, Inc., 395 F.Supp. 786 (D.Colo.1975) and by this court in Ritter v. Colorado Interstate Gas Co., 593 F.Supp. 1279 (D.Colo.1984) I decline to exercise my discretionary power to take pendent jurisdiction over the plaintiff’s state law claims.

Under Fed.R.Civ.P. 12(b)(2), the defendant South Fork Oil and Gas Company (South Fork) has filed a motion to dismiss the plaintiff’s federal claim for lack of personal jurisdiction. Personal jurisdiction in Securities Act cases is proper when the defendants reside in the United States. 15 U.S.C. § 78aa (1982). The Securities Act authorizes nationwide service of process. Id. South Fork’s motion to dismiss for lack of personal jurisdiction is therefore denied.

South Fork has also alleged that venue is not proper in Colorado and has sought either dismissal or transfer. Under § 78aa, venue is proper in a district where (1) the defendant is an inhabitant; (2) where the defendant is found; (3) where the defendant transacts business; or (4) where any act or transaction constituting the violation occurred. Venue is proper if one act in furtherance of an unlawful scheme was committed in the forum district. S-G Securities, Inc., v. Fugua Inv. Co., 466 F.Supp. 1114 (D.Mass.1978); Zorn v. Anderson, 263 F.Supp. 745 (S.D.N.Y.1966). The act need not have constituted the core of the alleged violation, nor even have been illegal, as long as it was more than an immaterial part of the alleged violation. S-G Securities, Inc., 466 F.Supp. 1114; Burkhart v. Allson Realty Trust, 363 F.Supp. 1286 (N.D.Ill.1973). Section 78aa does not require each defendant to have performed an allegedly wrongful act if all the defendants were intended beneficiaries and were part of the allegedly fraudulent scheme. Carty v. Health-Chem Corp., 567 F.Supp. 1 (E.D.Pa.1982).

Here, the chairman of South Fork’s board of directors wrote and mailed a letter to Colorado Stock Transfer Service (CSTS) instructing it not to register the stock at issue. South Fork thereby committed an act sufficient to allow venue in either the district where the letter was written or the district where the letter was received. See Stern v. Gobeloff, 332 F.Supp. 909 (D.Md.1971). In addition, CSTS’s refusal to register the stock in Colorado, at South Fork’s request and for its benefit, also conferred venue on this district. Carty, 567 F.Supp. 1.

South Fork has also asserted that the plaintiff’s complaint fails to state a claim upon which relief can be granted. To the contrary, the plaintiff has alleged facts sufficiént to state a claim under Rule 10b-5. South Fork’s motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) is therefore denied.

South Fork’s alternative motion for summary judgment is equally unfounded.

In addition to South Fork’s motions, the plaintiff has moved to dismiss several of the defendants. Because those defendants have neither answered nor filed motions for summary judgment, dismissal is appropriate pursuant to Fed.R.Civ.P. 41.

Accordingly,

IT IS ORDERED that

(1) All the plaintiff’s claims, except for his sixth claim, are dismissed without prejudice;

(2) Defendant’s motion to dismiss the plaintiff’s sixth claim, or alternatively for summary judgment on that claim, is denied;

(3) Defendant’s motion to transfer the plaintiff’s sixth claim is denied.

(4) Plaintiff’s motion to dismiss is granted; the complaint and action are dismissed as against the defendants James D. Vickers, Terri T. Davis, and Phillip Terney in their capacities as trustees for Vickers Land and Cattle, Inc. •


author: CAFFREY, Chief Judge.

text:
    Arcadio A. GONZALEZ, Plaintiff, v. TEMPLE MOUNTAIN SKI RESORT, INC., Defendant.
    Civ. A. No. 85-0284-C.
    United States District Court, D. Massachusetts.
    July 24, 1985.
    Richard J. Shea, Melick & Porter, Boston, Mass., for defendant.
   MEMORANDUM

CAFFREY, Chief Judge.

This is a civil action of tort for personal injuries brought by Arcadio A. Gonzalez, a resident of Massachusetts, for personal injuries he allegedly sustained while engaged in recreational skiing at the Temple Mountain Ski Resort in January of 1983. Jurisdiction of this Court is invoked on the basis of 28 U.S.C. § 1332(a)(1) (diversity jurisdiction). The matter is before the Court on a motion of Temple Mountain Ski Resort, Inc. to dismiss on the basis of Rules 12(b)(4), 12(b)(5), 12(b)(6) of the Federal Rules of Civil Procedure and on a motion for summary judgment filed by Temple Mountain Ski Resort, Inc. Both motions were filed on May 30, 1985 and on the same day the affidavit of Daniel Eneguess, Vice President and General Manager of Temple Mountain Ski Corporation (“Ski Corp.”), was filed in support of the motions.

Local Rule 12(a)(2) provides in pertinent part:

“A party opposing a motion may file an opposition to the motion within 10 days after service of the motion, ... The party may file together with the opposition ... a separate memorandum of reasons, ... why the motion should not be granted. Affidavits and other documents setting forth or evidencing facts on which the opposition is based shall be filed with the opposition.”

Despite the provisions of Rule 12 and the fact that 54 days have elapsed since the motions to dismiss and for summary judgment were filed, plaintiff has not filed an opposition, an affidavit in opposition, nor has he generated any evidence of record tending to oppose the granting of the motions.

An examination of the affidavit of Mr. Eneguess establishes without contradiction that on January 23, 1983 the Temple Mountain Ski Area in Peterborough, New Hampshire was owned and controlled by a corporation named Temple Mountain Ski Area, Inc. (“Ski Area”). The affidavit further establishes that on April 30,1984 Ski Corp., a Delaware corporation, purchased only the assets of Ski Area which purchase was a straight asset sale. The affidavit also establishes that Ski Corp. did not assume liability for tort claims or other causes of action against the former owner, Ski Area and in fact there were no outstanding claims at the time Ski. Corp. purchased the assets.

Mr. Eneguess’ affidavit further establishes that on the day on which plaintiff claims to have been injured, Ski Corp. had no ownership interest in the premises and that Ski Corp. neither expressly or impliedly agreed to assume any liability of Ski Area.

Mr. Eneguess, who is Vice President and General Manager of Ski Corp. further stated under oath that Ski Corp. does not do business or conduct any activities under the name Temple Mountain Ski Resort, Inc. and that Ski Corp. bears no legal relationship to the defendant named in the caption of this case, Temple Mount Ski Resort, Inc. and that the officers and directors of Ski Area are not officers or directors of Ski Corp.

I rule that the motion to dismiss should be treated as a motion for summary judgment pursuant to the provisions of Rules 12(b) and 56 of the Federal Rules of Civil Procedure. A review of the papers on file establishes that there has been monumental confusion on the part of the plaintiff as to the identity of the corporation he attempted to sue herein. It appears from the Eneguess affidavit that no such entity as Temple Mountain Ski Resort, Inc. ever existed. It further appears that when plaintiff, attempted to correct improper service of process, he caused the service of a copy of the original complaint on the President of Ski Area. That copy erroneously identified the defendant as Temple Mountain Ski Resort, Inc. It follows that there was no proper service of process as prescribed by the Federal Rules of Civil Procedure on either Ski Area, whose president was served with a document not naming it as a party defendant, or on Ski Corp. which has not been served with or named in any process in this case. Accordingly, I rule that on the basis of Rule 12(b)(4), (5), the complaint should be dismissed.

As a separate and independent grounds for dismissing this action, I note that defendant correctly contends that in a case based on diversity jurisdiction, this Court is required to apply the conflict of laws principles which would be applied by the courts of the Commonwealth of Massachusetts. In Burns v. Turner Construction Co., 265 F.Supp. 768 (D.Ma.1967), Judge Garrity of this Court ruled (at 769), “[t]he applicable period of limitations when the federal jurisdiction is based solely upon diversity of citizenship is the statute of limitations of the forum state.”

Massachusetts General Laws, chapter 143 § 71P provides:

"... No action shall be maintained against a ski area operator for injury to a skier unless as a condition precedent thereof the person so injured shall, within ninety days of the incident, give to such ski area operator notice, by registered mail, of the name and address of the person injured, the time, place and cause of the injury ... an action to recover for such injuries shall be brought within one year of the date of such injury”

In the instant case the complaint was filed January 18, 1985 based on an accident which plaintiff alleges occurred on January 23, 1983 and process was served on the president of Ski Area on May 10, 1985. It follows that this action is barred by the Massachusetts statute of limitations quoted above because it was filed after the expiration of one year of the accident and it is likewise barred by failure of the complaint to contain an allegation that the 90 day notice requirement was complied with.

If a different choice of law were to be made, the only other viable alternative would be the law of New Hampshire as the lex loci delecti. Revised New Hampshire Statutes Annotated 225-A:25(IV) requires a 90 day notice identic to that contained in the Massachusetts statute and also provides a one year statute of limitations for the commencement of suit. Thus the action is barred for non-complaince with the New Hampshire Statute to the same extent it is barred for non-compliance with the Massachusetts statute.

Accordingly, I rule that on both of the above-described separate grounds, the motions for summary judgment should be allowed and the complaint dismissed.

Order accordingly.


text:
    In the Matter of Milton PARISH, Civil Contemnor.
    No. M 11-188
    United States District Court, S.D. New York.
    July 24, 1985.
    Addendum July 25, 1985.
    Rudolph W. Giuliani, U.S. Atty., S.D.N.Y. by Lorna Schofield, Asst. U.S. Atty., New York City, for the Government.
    Noah A. Kinigstein, New York City, for Milton Parish.
   MEMORANDUM & ORDER

WHITMAN KNAPP, District Judge.

The question before me is whether Milton Parish has borne the burden of persuading me that there is no “realistic possibility that continued confinement might cause [him] to testify.” Simkin v. United States (2d Cir.1983) 715 F.2d 34, 37. Resolution of that question is a truly “perplexing task.” Ibid. I conclude that he has so persuaded me. What stands out in his testimony is that it is more important to him to nurture his newly formed friendships with those affiliated with the objectives of the Sunrise Collective than to maintain what would appear to be valuable relationships with persons such as William Cox, who gave heart-warming testimony in his behalf. Further incarceration — far from interfering with — will simply further that objective.

I wish to make clear, however, what I do not find. Parish is under no disability, physical, mental or emotional, which would prevent him from obeying the subpoena should he choose to do so. He truly holds in his pocket the key to the jailhouse door. There exist no equitable considerations such, for example, as those noted by Judge Carter in In re Cueto (S.D.N.Y.1978) 443 F.Supp. 857, which would mitigate against requiring Parish to suffer the statutorily permitted consequences of his decision to defy the law. However, as I read Simkin, these matters are irrelevant and I am charged with determining whether there is a reasonable possibility that further confinement will induce him to temper his defiance. Being unable to find such a reasonable possibility, I must — and do — order that Parish be discharged from custody.

SO ORDERED.

ADDENDUM

I wish to make explicit, what I believe to have been clearly implicit in my Opinion, that I was not in any way exercising my discretion. On the contrary, I agree with Judge Brieant (In the Matter of Dorie Clay (S.D.N.Y. June 27, 1985) M-ll-188) that the result I reached was unwarranted, and would not have reached it except under compulsion. When the Simkin court refers to a “broad discretion,” 715 F.2d at 37, it seems to me merely to be saying that the District Judge has the “perplexing task” of making a factual determination as to the probability of the eontemnor’s ultimate compliance. Once that determination has been made in the contemnor’s favor, as I read the opinion, the Judge is left with no discretion.

I also agree with Judge Brieant that the Simkin case will ultimately render the statute unworkable and thus nugatory. If utter contempt for the law is a defense against incarceration, I see no principled way of denying a eontemnor a “Simkin hearing” on the day of his first appearance before the grand jury. If contempt for the law is a defense, I see no reason for making a eontemnor spend six months — or six days — in jail before asserting that defense. Although a court might well decide to let a eontemnor spend a few days (or months) in jail to test his resolve, I do not see how— granting the Simkin rule — it could properly do so without having heard all witnesses that might legitimately tend to persuade it that no such testing was necessary.

SO ORDERED.

      . The United States Attorney has submitted a memorandum cogently suggesting a contrary conclusion. It would indeed be easy to write an opinion demonstrating that Parish might well change his views. The trouble with such an opinion, however, is that it would not persuade me.


author: KANE, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Gilberto GONZALO-DIAZ a/k/a Pedro, Maria T. Guerra, Clara I. Guerra, Maria Diaz, a/k/a Maria Diaz Castellano, Defendants.
    No. 85-CR-201.
    United States District Court, D. Colorado.
    July 24, 1985.
    Joseph T. Urbaniak, Jr., Asst. U.S. Atty., Denver, Colo., for plaintiff.

      Arthur M. Schwartz, Irvin Bornstein, Denver, Colo., for Gilberto Gonzalo-Diaz.
    Steven Polidori, Denver, Colo., for Maria T. Guerra.
    Bruce Fierst, Denver, Colo., for Clara I. Guerra.
    Amanda Maxwell, South Miami, Fla. and Michael Gross, Denver, Colo., for Maria Diaz.
    Allan Lenefsky, Wheatridge, Colo., and Louis Casuso, Miami, Fla., for Socorro Guerra.
   ORDER and NOTICE TO COUNSEL OF RECORD

KANE, District Judge.

The court has examined the surfeit of motions and briefs filed by counsel for the several defendants in this case. A hearing is set on all pending motions commencing Friday, August 2, 1985. Most of the motions appear to be needless. The memoranda in support of these motions do not meet the standards of practice expected from members of the bar of this court. Citations to cases in other circuits are of no use to this court. Counsels’ attention is directed to Local Rule of Practice 408. This court is interested in the law as specifically set forth by the Supreme Court of the United States, the Court of Appeals for the Tenth Circuit and the District of Colorado. This court is entirely too busy to chase down string citations or read canned briefs. Counsel are advised that sanctions will be imposed under Rule 11, Fed.R.Civ.P. and 28 U. S.C. § 1927 where the circumstances warrant.

The court suggests that defense counsel meet with the U.S. Attorney immediately and advise the court of which motions actually require argument and consideration by the court. The court further suggests that the memoranda heretofore filed be withdrawn and substantially revised.

Defendants have filed a motion for enlargement of time to file additional pre-trial motions. In keeping with the foregoing notice,

IT IS ORDERED that the motion for enlargement of time is granted. Defendants may file motions up to and including Wednesday, July 31, 1985.


author: SIMMONS, District Judge.

text:
    George W. HAMMOND, Plaintiff, v. UNITED STATES of America and United States Army Corp of Engineers, Defendants.
    Civ. A. No. 84-1495.
    United States District Court, W.D. Pennsylvania, Civil Division.
    July 25, 1985.

      James A. Villinova, Houston Harbaugh, Pittsburgh, Pa., for plaintiff.
    Barbara Carlin, Asst. U.S. Atty., Pittsburgh, Pa., for defendants.
   OPINION

SIMMONS, District Judge.

This case is before the Court on motion by Defendant United States of America for dismissal of Plaintiffs action, (1) under the Federal Tort Claims Act, 28 U.S.C. § 2401(b), on the grounds that the Plaintiffs cause of action is time barred, and under (2) the Suits of Admiralty Act, 46 U.S.C. § 741 et seq., on the grounds that Plaintiffs cause of action does not lie within the admiralty jurisdiction of this Court. The alleged cause of action arose from injuries sustained by the Plaintiff while he was painting the tainter gates at Dam No. 4, on the Monongahela Kiver on or about June 21, 1982. The Plaintiff was employed by Master Painting and Sheeting Company, Inc., and was doing said work for the United States Corps of Engineers.

The parties agree that Plaintiff filed an administrative claim pursuant to the Tort Claims Procedure set forth in the United States Code, and that this claim was denied by letter on July 20, 1983. The Defendant argues that because the present action was not commenced until June 19, 1984, it is time barred pursuant to 28 U.S.C. § 2401(b), which provides:

A tort claim against the United States shall shall be forever barred unless it is presented in writing to the appropriate federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.

Id. (emphasis added)

This statute of limitations set forth in 28 U.S.C. § 2401(b), is strictly construed by the courts to run from the date of the mailing of the denial letter. Tuttle v. United States Postal Service, 585 F.Supp. 55 (M.D.Pa.1983). Because the action in this case was filed more than six months after the date of mailing the “denial letter”, the Defendant’s Motion to Dismiss will be granted.

Additionally, the Defendant contends that Dam No. 4, is an extension of land and therefore argues that there are insufficient maritime contacts alleged in this cause of action to bring this case within this Court’s admiralty jurisdiction.

It is an admitted fact that at the time of Plaintiff’s injury he was standing on tainter gate No. 5, at Dam No. 4. Dam No. 4 is a concrete structure with six concrete piers. Each pier is grounded in bedrock. In between each set of piers is a steel tainter gate which is secured to the piers on either side by trunnions fitting into slots in the piers. There are five such gates.

Based on these indisputed facts, this Court concludes that Dam No. 4, is not a vessel or navigational aid for maritime jurisdiction purposes, but is in fact an extension of land. It is settled law that structures such as piers, docks and wharves, permanently affixed to land, such as the Lock No. 4 piers, are extensions of the land and are not navigational “vessels or aids”. Victory Carriers v. Law, 404 U.S. 202, 206-07, 92 S.Ct. 418, 422-23, 30 L.Ed.2d 383, 388 (1971); Nacirema Operating Co. v. Johnson, 396 U.S. 212, 214-15, 90 S.Ct. 347, 349-50, 24 L.Ed.2d 371, 375 (1969). Thus, the Admiralty Act (46 U.S.C. § 741), that covers injuries “upon navigable waters” would not cover injuries on a pier such as is the case at bar even though the pier, like a bridge, extends on, over and/or under navigable waters. See Rodrigue v. Aetna Casualty Co., 395 U.S. 352, 360, 366, 89 S.Ct. 1835, 1839, 1842, 23 L.Ed.2d. 360, 367, 370 (1969). The determination of admiralty jurisdiction in the present action is controlled by the Supreme Court’s decision in Executive Jet Aviation v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972).

In Executive Jet the Court held that the mere fact that an alleged wrong takes place or has its effect on or over navigable waters is not by itself sufficient to turn an aviation tort case into a “maritime tort”. Rather, for such a case to be cognizable in admiralty, the alleged wrong must bear a significant relationship to “traditional maritime activity”. 409 U.S. at 268, 93 S.Ct. at 504, 34 L.Ed.2d 454, 93 S.Ct. 493. The Executive Jet maritime connexity requirement is not limited to the aviation context. Foremost Insurance Company v. Richardson, 457 U.S. 668, 674, 102 S.Ct. 2654, 2658, 73 L.Ed.2d 300, 305 (1982); American Home Assurance Co. v. United States, 389 F.Supp. 657 (M.D.Pa.1975).

Although Plaintiff argues that the painting of Dam No. 4 was in furtherance of traditional maritime interests since it was a service which assisted navigation on the Monongahela River, this Court disagrees and holds that the instant suit is not cognizable under the Suits in Admiralty Act.

In Jiles v. Federal Barge Lines, Inc., 365 F.Supp. 1225 (E.D.La.1973), plaintiff alleged that he was injured while painting a non-navigable structure, i.e., a stripped and moored steamboat. Plaintiff contended that he was engaged in the operation of a barge fleet, a traditional maritime activity. The District Court in the Jiles case disagreed and found that “plaintiff was merely performing the work of a painter and that this work performed on the “BUNA” achieved nothing in direct furtherance of the operation of a barge fleet.” 365 F.Supp. at 1228. Similarly, in Petrou v. United States, 529 F.Supp. 295 (D.Md.1981), plaintiff brought an action for injuries sustained while painting a lighthouse. Plaintiff alleged that a defective iron railing gave way causing him to fall into a boat below. Because in the Petrou case, the alleged wrong bore no relationship to the maritime function of the light, the District Court concluded that the action did not involve a traditional maritime activity.

This Court therefore concludes that there are insufficient maritime contacts between the alleged wrong and traditional maritime activity to invoke admiralty jurisdiction over this alleged tort, because plaintiff was merely performing the work of a painter which was an activity with which many other individuals are concerned and which is not exclusively related to activities which occur only over navigable water. American Home Assurance v. United States, 389 F.Supp. at 658. Moreover, the admitted facts indicate that as a matter of law, the Lock 4 Dam in this case at bar was not a vessel within the scope of general maritime law.

Accordingly, the Defendant’s Motion to Dismiss for lack of jurisdiction of this Court under 46 U.S.C. § 741, et seq. will be granted.

An appropriate Order will be granted.


author: GENE CARTER, District Judge.

text:
    Leonard G. GAGNE, Plaintiff, v. Margaret M. HECKLER, Secretary, United States Department of Health and Human Services, Defendant.
    Civ. No. 84-0409-P.
    United States District Court, D. Maine.
    July 25, 1985.

      Michael A. Bell, Bell & Geores, Lewiston, Me., for plaintiff.
    Paula D. Silsby, Asst. TJ.S. Atty., Portland, Me., for defendant.
   ORDER VACATING DECISION OF THE SECRETARY AND REMANDING FOR FURTHER PROCEEDINGS

GENE CARTER, District Judge.

This is an action for review of a final decision of the Secretary of Health and Human Services which denied Plaintiff’s application for Social Security disability benefits. Plaintiff filed his complaint on December 13, 1984. Defendant did not file her answer on time, but requested an extension of time in which to file after the date for filing had passed. The Court denied the Secretary’s motion, and the answer was filed tardily on February 25, 1985. On April 11, 1985, Plaintiff moved for judgment on the pleadings or, in the alternative, for summary judgment, urging the Court not to consider the Secretary’s Motion for an Order Affirming the Secretary’s Decision.

As the First Circuit Court of Appeals stated in Alameda v. Secretary of Health, Education and Welfare, 622 F.2d 1044 (1st Cir.1980): “[T]he Court is not without resources of a compulsory nature to force the Secretary to comply with its statutory and procedural duties with respect to progress of this litigation.” The Court has in the past adopted the remedy which Plaintiff seeks in other situations in which the Secretary or another party has failed to file required documents or pleadings on time. See Mawhinney v. Heckler, 600 F.Supp. 783, 785 (D.Me.1985); McDermott v. Lehman, 594 F.Supp. 1315 (D.Me.1984). The Court will adopt the same remedy in this case and will not consider the Secretary’s Motion for an Order Affirming the Decision of the Secretary and supporting memorandum. Since the remedy of default is not available against the Secretary, this is the only method by which the Court may assure the Secretary of its seriousness in enforcing its deadlines and maintaining the smooth flow of its docket.

Plaintiff alleges multiple impairments including pain, cardiac problems, pulmonary problems and status post laminectomy. The ALJ considered each of these impairments separately, and finding each one not to be severe, under 20 C.F.R. Part 404.1521 determined that Plaintiff was not disabled. Plaintiff raises three challenges to the Secretary’s decision. First, he asserts that the Secretary’s determination that his impairments are not severe is not supported by substantial evidence. Next, he asserts that the Secretary’s regulation requiring a finding of severe impairment, 20 C.F.R. Part 404.-1520(c), is invalid. Finally, he asserts that the Secretary proceeded improperly by failing to consider his impairments in combination. Because the Court agrees with Plaintiff that the ALJ should have considered Plaintiffs’ impairments in combination, it will remand the case to the Secretary and will not consider the other challenges presented by Plaintiff.

When the ALJ considered this case in the spring of 1984, the Secretary generally followed a policy of assessing each of multiple impairments separately. The record in this case demonstrates that the ALJ followed this policy and did not consider Plaintiff’s impairments in combination. Section 4 of the Social Security Disability Benefits Reform Act of 1984, 42 U.S.C. § 423(d)(2)(C), which is to “apply to determinations” made on or after December 1, 1984, provides that, in determining whether a claimant’s impairments are severe “the Secretary shall consider the combined effect of all of the individual’s impairments without regard to whether any such impairment, if considered separately, would be of such severity.”

In Boisvert v. Heckler, Civil No. 84-0292-P (D Me. Dec. 14, 1984), this Court decided that section 4 of the Reform Act is to be applied to cases pending in this Court for determination after December 1, 1984, whether or not the Secretary’s final decision preceded applicability of the new section. Since the record in cases such as this one, decided by the Secretary before December 1, 1984, was developed with reference to an entirely different standard, the Court determined that remand is appropriate to permit the Secretary “to take additional evidence and perform her statutorily-designated factfinding role.” Id., slip op. at 4.

Accordingly, it is ORDERED that the decision of the Secretary is VACATED and this case is REMANDED to the Secretary so that she may take additional evidence and apply section 4 of the Reform Act.

So ORDERED.


text:
    Gemma C. CASEY, et al., Plaintiffs, v. UNITED STATES POSTAL SERVICE, Defendant.
    Civ. A. No. 84-1854-C.
    United States District Court, D. Massachusetts.
    July 30, 1985.
    John F. Canty, Jr., Concord, Mass., for plaintiffs.
    Asst. U.S. Atty. Marianne B. Bowler, Boston, Mass., for defendant.
   MEMORANDUM

CAFFREY, Chief Judge.

This is a civil action brought by Gemma C. Casey and John F. Canty, Jr. against the United States Postal Service. Jurisdiction is claimed on the basis of the Federal Torts Claims Act, 28 U.S.C. § 1346(b). Plaintiffs allege that they are husband and wife and residents of Middlesex County, Massachusetts. They further allege that on April 14, 1981 a motor vehicle operated by Gemma C. Casey was involved in a collision with a U.S. Mail truck at the intersections of Route 62 and 2 in Concord, Massachusetts. Plaintiff, Gemma Casey alleges that her vehicle was struck from behind by the mail truck as a result of which she alleges she sustained various physical injuries. Plaintiff, John F. Canty, Jr. seeks recovery for emotional distress allegedly caused by his being informed of his wife’s accident and for loss of consortium. The matter is now before the Court on a motion to dismiss filed by the United States for lack of jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.

In the memorandum of law filed by the United States, the United States contends that plaintiffs are barred from maintaining the instant case because of their failure to exhaust their administrative remedies as required by 28 U.S.C. § 2675(a). The record discloses that three days prior to the expiration of the two year statute of limitations, plaintiffs submitted a Standard Form 95 to the Concord, Massachusetts Post Office. Item 10 of the standard form was completed by plaintiffs as follows: “A. Property Damage — ‘Approx. $2,050.00;’ B. Personal Injury — ‘not less than ... $250,-000.00;’ D. total — ‘Unknown.’ ” A photostatic copy of this Standard Form as filed is appended to Affidavit of Gemma C. Casey.

This Standard Form 95 was received by the claims service of the United States Post Office on April 19, 1983 and the claims service notified plaintiff on December 14, 1983 that federal regulations require all claims be made for a sum certain and that their claim for an unknown amount did not constitute the filing of an administrative claim and therefore did not toll the statute of limitations.

This action is controlled by the provisions of 28 U.S.C. § 2675(a) and 28 C.F.R. § 14.2(a). 28 U.S.C. § 2675 provides “[a]n action shall not be instituted upon a claim against the United States for money damages ... unless the claimant shall have first presented the claim to the appropriate Federal Agency and his claim shall have been finally denied by the agency in writing. ...”

28 C.F.R. § 14.2(a) provides: “... a claim shall be deemed to have been presented when a Federal agency receives ... an executed Standard Form 95 ... accompanied by a claim for money damages in a sum certain for ... personal injury ... alleged to have occurred by reason of the incident.” (emphasis added).

It is settled law that the Federal Tort Claims Act is a limited waiver of sovereign immunity. In United States v. Sherwood, 312 U.S. 584, 590, 61 S.Ct. 767, 771, 85 L.Ed. 1058 (1941) the Supreme Court in construing the Tucker Act’s limited waiver of sovereign immunity stated “the section must be interpreted in light of its function in giving consent of the government to be sued, which consent, since it is a relinquishment of a sovereign immunity must be strictly interpreted.” In Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 273, 1 L.Ed.2d 306 (1957), the Supreme Court re-endorsed the principles announced in United States v. Sherwood, supra with the observation “that this Court has long decided that limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied.”

The Courts of Appeals for a number of circuits have applied the above-cited admonitions of the Supreme Court with regard to the jurisdictional effect of the failure to file a specific administrative claim prior to instituting suit against the United States. In Blain v. United States, 552 F.2d 289, 291 (1977), the Court of Appeals for the Ninth Circuit ruled that “[t]he claim requirement of § 2675 is jurisdictional in nature and may not be waived____ [Fjailure to comply within the required time period results in the claim’s being forever barred.” In Allen v. United States, 517 F.2d 1328 (6th Cir.1975), a case presenting a fact situation almost identical to the instant case, the Court of Appeals for the Sixth Circuit ruled that plaintiff’s claim against the United States was barred because of their failure to file a proper administrative claim with the postal service. The Court also ruled that the Allens' claim was defective because it failed to state a sum certain demand for damages, which is the situation in the instant case.

A similar ruling was made in Robinson v. United States Navy, 342 F.Supp. 381, 382 (E.D.Pa.1972) where the court held that the filing of a proper claim was jurisdictional and could not be waived. The Court further held that “[a] claim which does not set out the amount of damages sought is not a claim.” Id. at 383. Similar rulings have been made by the Courts of Appeals for the Third and Fifth Circuits. See Bialowas v. United States, 443 F.2d 1047 (3rd Cir.1971); Monilar v. United States, 515 F.2d 246 (5th Cir.1975). On the basis of all of the above-cited well-settled authority, I rule that the failure to file an administrative claim containing a specific total dollar amount is fatal to the filing of the federal torts claim case herein and that an order should enter dismissing plaintiffs’ complaint.

Order accordingly.


author: RESTANI, Judge:

text:
    SACILOR, ACIERIES ET LAMINOIRS DE LORRAINE, et al., Plaintiffs, v. The UNITED STATES, et al., Defendants. VALLOUREC, Plaintiff, v. The UNITED STATES, et al., Defendants.
    Court Nos. 85-5-00664, 85-5-00669.
    United States Court of International Trade.
    June 21, 1985.

      Donovan, Leisure, Newton & Irvine, Pierre F. de Ravel d’Esclapon, Thomas R. Trowbridge, III, and Melvin S. Schweehter, New York City, for plaintiffs.
    Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Washington, D.C., Velta A. Melnbrencis, Civ. Div., U.S. Dept, of Justice, New York City, for defendants.
    Stewart & Stewart, Washington, D.C. (Eugene L. Stewart, Washington, D.C., on brief), for amicus curiae Bethlehem Steel Corp.
   Opinion and Order

RESTANI, Judge:

Plaintiffs, European manufacturers of made-to-order steel pipes for crude oil pipelines, filed these actions to challenge a Department of Commerce (DOC) determination. The determination denied a request by the European Economic Community (EEC)' to allow the importation into the United States of additional quantities of pipe beyond the level specified in an agreement between the EEC and the United States. Plaintiffs moved for expedited discovery and briefing. Defendant United States government opposed the motion and requested briefing on several threshold questions including jurisdiction, standing, justiciability, and judicial review. After briefing and oral argument, the court has determined that plaintiffs failed to state a cause of action under the substantive law and that judicial review of the findings of the DOC is unavailable.

I. Background

In September, 1984, plaintiffs executed final contracts with the All American Pipeline Company to supply specially made pipe for a project designed to transport crude oil from California to the Gulf Coast. Plaintiffs were selected as suppliers after an open bidding process. On October 30, 1984, the Trade and Tariff Act of 1984, Pub.Law 98-573, 98 Stat. 2948 was enacted. Included as Title VIII of the 1984 Trade and Tariff Act was the Steel Import Stabilization Act (SISA), 19 U.S.C.A. § 2253 note (West 1980 & Supp.1985). Section 805(b) of SISA grants power to the Secretary of Commerce (Secretary) to insure that the quantities of imported pipes and tubes remain in accordance with an October 1982 agreement between the EEC and the United States, “including any modification, clarification, extension or successor agreement____” Also contained within § 805(b) was a provision which permits the Secretary to allow the importation of additional quantities of certain products after the Secretary finds the existence of a short supply of the product in the United States.

On January 10, 1985, by way of letters, the EEC and the United States entered into a clarifying agreement concerning steel imports (the Arrangement). Under the Arrangement the EEC would restrain exports to, or destined for consumption in the United States of certain steel pipes and tubes to a level of 7.6% of U.S. apparent consumption for the years 1985 and 1986. For oil country tubular goods the limit was 10% of U.S. apparent consumption. Article 8 of the Arrangement, however, provides that pipe and tube exports above the specified limits will be accepted where a shortage of supply exists.

Pursuant to the Arrangement, the EEC submitted a request to the DOC for consultation and a short supply exemption for the pipe required by the All American Pipeline project. Asking for priority treatment, the EEC claimed that the requisite product was not sufficiently available in the United States.

The DOC announced that it would examine the short supply exemption request and invited comments by February 15, 1985. 50 Fed.Reg. 4719 (1985). By letters dated March 28,1985, the DOC informed both the EEC and the president of All American Pipeline Company that the pipe subject to the EEC’s request could be supplied by three firms in the United States which had unused capacity of approximately one million tons, several times the amount of pipe covered by the requests. The DOC noted that its determination was based on responses to questionnaires sent to all U.S. producers, responses to the notice in the Federal Register, and consultations with All American Pipeline officials and their private consultant.

On May 13, 1985, manufacturers Sacilor and Bergrohr-Herne commenced an action in this court claiming that the DOC’s March 28, 1985 determination was arbitrary, capricious, an abuse of discretion, and a denial of plaintiffs’ due process rights. Plaintiff Vallourec filed a companion case on the same grounds.

As of June 18, 1985, it appears that the EEC and the United States have resolved their differences regarding pipes and tubes for the All American Pipeline. Defendants assert that this action is now moot. Plaintiffs have indicated that the amount approved for importation is less than that sought by plaintiffs, and therefore this action is not moot. This action remains a live controversy between the parties before the court.

II. Jurisdiction

Jurisdiction is predicated on 28 U.S.C. § 1581(i)(4) (1982) as it relates to 28 U.S.C. § 1581(i)(3) (1982). These cases involve the administration of a law, SISA, imposing quantitative restrictions on certain steel imports. Defendant asserts that plaintiffs’ claims rest only on the Arrangement, which it asserts does not have the force of law. It appears that executive international agreements, whether approved prior or subsequent to execution, have the force of law. Cf. Weinberger v. Rossi, 456 U.S. 25, 102 S.Ct. 1510, 71 L.Ed.2d 715 (1982); B. Altman & Co. v. United States, 224 U.S. 583, 32 S.Ct. 593, 56 L.Ed. 894 (1912). In any case, plaintiffs also claim that their actions arise under SISA because.it incorporates various parts of the Arrangement. This court’s task then is to determine whether SISA gives plaintiffs the relief they seek, or whether Article 8 of the Arrangement in some manner confers rights on the plaintiffs. Under § 1581(i) the court has power to make this inquiry. Furthermore, because plaintiffs have no reasonably available remedy under § 1581(a), failure to exhaust administrative remedies will not bar suit. See American Association of Exporters Importers-Textile and Apparel Group v. United States, 751 F.2d 1239, 1244-46 (Fed.Cir.1985) (hereafter AAEI); see also American Institute for Imported Steel, Inc. v. United States, 8 CIT ---, 600 F.Supp. 204, 208 (1984).

III. Enforceable Private Rights

Section 802 of SISA states that the purpose of the act is to grant the President authority to enforce bilateral steel agreements and to condition the continuation of his authority on modernization of domestic steel production facilities. When referring in SISA to the Secretary’s duties regarding the short supply exception to the quota levels set in the bilateral agreements, Congress used permissive language. Section 805(b)(3) states that the Secretary may permit importation of additional quantities of steel products into the United States. SISA contains no mandatory language regarding short supply except perhaps for a provision prohibiting a short supply determination based on unavailability of domestic steel at below cost prices. This limit on the short supply exemption is not involved here.

Although Article 8 of the Arrangement is written in mandatory terms, its terms bind only the signatory parties, the United States and the EEC. It is only the EEC which can request relief under Article 8 of the Arrangement. For an international agreement to be enforceable by private parties, either the agreement itself or the implementing legislation must contain language providing for the determination of private rights. Dreyfus v. VonFinck, 534 F.2d 24, 29-30 (2nd Cir.1976); 13B C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 3563 (2nd ed. 1984). Unlike the case of People of Saipan v. United States, 502 F.2d 90 (9th Cir.1974), cert. denied, 420 U.S. 1003, 95 S.Ct. 1445, 43 L.Ed.2d 761 (1975) (United Nations Trusteeship Agreement created substantive rights enforceable by plaintiffs), there is no language in either Article 8 of the Arrangement or § 805(b)(3) of SISA which indicates an intention to establish direct, affirmative, and judicially enforceable rights for private parties in the position of plaintiffs.

The legislative history of SISA also fails to support plaintiffs. It states that the short supply provision is “designed to protect domestic purchasers of steel products____” H.R.Rep. No. 1156, 98th Cong., 2d Sess. 200, reprinted in 1984 U.S.Code Cong. & Ad.News 4910, 5220, 5317. There is no mention of guaranteeing persons in the position of plaintiffs any access to United States markets.

IV. Standing

The substantive laws of the United States provide plaintiffs no specific rights of action in this situation, but because the court has subject matter jurisdiction, review may lie under the Administrative Procedures Act (APA), 5 U.S.C. §§ 701-706 (1982). See Chrysler Corp. v. Brown, 441 U.S. 281, 317, 99 S.Ct. 1705, 1725, 60 L.Ed.2d 208 (1979); Audubon Society v. Lee, 742 F.2d 901, 911 n. 18, reh’g denied, 750 F.2d 69 (5th Cir.1984); McCartin v. Norton, 674 F.2d 1317, 1320 (9th Cir.1982); Glacier Park Foundation v. Watt, 663 F.2d 882, 885 (9th Cir.1981). Under 28 U.S.C. § 2631(i) (1982) plaintiffs may commence actions in this court if they are “adversely affected or aggrieved by agency action within the meaning of section 702 of title 5.” “In order to assert a cognizable claim — or ‘standing to sue’ — under the APA, a plaintiff must demonstrate that it has suffered or will suffer ‘injury in fact’ sufficient to establish [constitutional] Article III standing and that the alleged injury to an interest is ‘arguably within the zone of interests protected or regulated’ by the statute that has allegedly been violated.” Dialysis Centers, Ltd. v. Schweiker, 657 F.2d 135, 138 (7th Cir.1981) (citing United States v. SCRAP, 412 U.S. 669, 686, 93 S.Ct. 2405, 2415, 37 L.Ed.2d 254 (1975)). See also Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978); Florsheim Shoe Co. v. United States, 744 F.2d 787, 790-92 (Fed.Cir.1984); Port of Astoria, Oregon v. Hodel, 595 F.2d 467, 474 (9th Cir.1979).

In Australian Meat and Live Stock Corp. v. Block, 7 CIT —, 590 F.Supp. 1230 (1984), this court found that Australian meat exporters alleged economic injury in fact in challenging laws involving voluntary restraint agreements and quotas. The steel producers here allege similar injury as a result of SISA, and, thus, likely satisfy the constitutional aspect of the standing requirement.

The prudential, that is, the “zone of interests,” aspect of standing is not as easily met. In making a “zone of interests” examination, courts generally look to the “language of the relevant statutory provisions and their legislative history.” Control Data Corp. v. Baldrige, 655 F.2d 283, 294 (D.C.Cir.1981), cert. denied, 454 U.S. 881, 102 S.Ct. 363, 70 L.Ed.2d 190 (1981) (footnotes omitted). A review of the applicable statute in these cases, SISA, does not indicate that the business prospects of foreign manufacturers are protected by that act. SISA speaks only of meeting short supply situations. The legislative history of SISA’s short supply provision demonstrates that the provision was enacted only to protect American firms which are consumers of steel products. H.R.Rep. No. 1156. Moreover, unlike the statute in the Australian Meat case, SISA does not protect importers by creating a minimum level which could not be kept out of the United States. Rather, the statute provides a possible exception to increase a maximum allowable level of imports based on American industry’s needs.

The prudential test of standing set forth in Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153-57, 90 S.Ct. 827, 829-32, 25 L.Ed.2d 184 (1972), however, contains alternative requirements. “The applicable ‘zone’ covers interests regulated as well as protected by the statute in question.” Community Nutrition Institute v. Bergland, 493 F.Supp. 488, 492 (D.D.C.1980). The Community Nutrition court held that soft drink manufacturers whose products were not approved by federal school lunch regulations had standing to challenge the regulations even though the purpose of the legislation on which the regulations were based was to provide nutritious food to children. When their products were excluded from the school lunch program, the manufacturers were regulated by the relevant act. In the instant cases, plaintiffs’ product is partially excluded from importation because of SISA and the agreements permitted by SISA. The foreign manufaeturers are thus arguably regulated by the relevant statute. Accordingly, the prudential test of standing is met in these cases and plaintiffs, therefore, satisfy both standing requirements.

V. Judicial Review

“Apart from the question of standing to sue, [the court’s] inquiry into the availability of judicial review requires a separate examination of whether Congress has placed [the Secretary’s] action beyond the reach of judicial cognizance.” Concerned Residents of Buck Hills Falls v. Grant, 537 F.2d 29, 34 (3rd Cir.1976). Thus, the final question remaining is whether these cases fall within the exception to APA review for agency action committed to agency discretion by law. 5 U.S.C. § 701(a) (1982). The court finds that the type of judicial review sought by plaintiffs is unavailable in these cases.

First, these eases concern a decision by the Secretary which involves both foreign affairs and domestic matters. Congress could have set up procedures for decision-making on short supply issues which limit the Secretary’s discretion and which involve no foreign affairs function, but it did not do so. Congress placed the short supply provision in a statute which is largely concerned with bilateral agreements between the United States and steel-exporting nations, and it used no words to remove the short supply decision-making function from the general process of consultation between the involved governmental bodies. Although the Arrangement includes certain minimal standards which govern the consultations on short supply, those standards are not part of the statute for the purpose of determining the scope of judicial review. See AAEI, 751 F.2d at 1248, Mast Industries, Inc. v. Regan, 8 CIT —, 596 F.Supp. 1567, 1576 (1984).

Congress recognized the foreign affairs, discretionary nature of a short supply determination by neither setting forth in § 805(b)(3) standards which the Secretary must apply, nor requiring publication of specific findings. Because it is unrestricted, § 805(b)(3) permits the Secretary to make a short supply determination by any reasonable means, including the consultations between governmental bodies envisioned in Article 8 of the Arrangement. Consultations between this government and foreign powers are foreign affairs matters. The indication in the legislative history that the purpose of § 805(b)(3) is to protect domestic purchasers does not override the permissive nature of the provision and the overall statutory scheme, which places the decision here in the foreign affairs arena. Where foreign affairs and domestic matters are mixed, Congressional delegation must be broadly construed. Florsheim Shoe Co. v. United States, 744 F.2d 787, 793 (Fed.Cir.1984) (citing South Puerto Rico Sugar Co. Trading Corp. v. United States, 334 F.2d 622, 632 (Ct.Cl.1964), cert. denied, 379 U.S. 964, 85 S.Ct. 654, 13 L.Ed.2d 558 (1965)).

Second, because the decision on short supply is part of the foreign affairs process, review is extremely limited. By law, such matters are committed to Executive discretion. See Jensen v. National Marine Fisheries Service, 512 F.2d 1189, 1191 (9th Cir.1975). The court cannot review the Secretary’s findings; the court can only determine whether the authorizing law has been followed. United States v. George S. Bush & Co., 310 U.S. 371, 379-80, 60 S.Ct. 944, 946-47, 84 L.Ed. 1259 (1940); AAEI, 751 F.2d at 1248; Flor sheim, 744 F.2d at 793; United States Cane Sugar Refiner’s Ass’n. v. Block, 69 CCPA 172, 177, 683 F.2d 399, 404 (CCPA 1982). Unlike the Australian Meat case, there is no dispute here regarding the scope of the Secretary’s authority to act. It is undisputed that the Secretary gathered evidence on the issue of short supply and that a decision was made that relates to short supply. Thus, the court finds that the limited review allowed of the President’s decision to withdraw duty-free status as to certain articles in the Florsheim case provides the best guide as to the scope of review here. The broader type of review sought by plaintiffs necessarily involves an impermissible intrusion into a discretionary decision-making process.

Here, the Secretary made a decision regarding import levels following consultations with a foreign governmental entity. Although the “agency discretion” exception to APA review is quite narrow, Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 820, 28 L.Ed.2d 136 (1971), the court finds that this matter clearly and directly involves a foreign affairs function. As such, it is committed to agency discretion. Cf. Mast Industries, Inc. v. Regan, 596 F.Supp. at 1580-82. Therefore, it is inappropriate for the court to review the Secretary’s determination.

YI. Due Process

In addition, plaintiffs claim that because no hearing on short supply was held, they were denied due process. “Those seeking constitutional protection under the due process clause must point to a ‘legitimate claim of entitlement’ prior to any considerations of the Government’s constitutional obligations”. AAEI, 751 F.2d at 1250 (quoting Arnett v. Kennedy, 416 U.S. 134, 167, 94 S.Ct. 1633, 1650, 40 L.Ed.2d 15 (1974) (Powell, J. concurring), reh’g denied, 417 U.S. 977, 94 S.Ct. 3187, 41 L.Ed.2d 1148 (1974)). As indicated, the statute, SISA, and the Arrangement give plaintiffs no rights. Furthermore, there is no generally available, protectable interest to engage in foreign trade. AAEI, 751 F.2d at 1250 (citing Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 53 S.Ct. 350, 77 L.Ed. 796 (1933), and United States v. Yoshida International, Inc., 63 CCPA 15, 32, 526 F.2d 560, 580 (1975)). Accordingly, plaintiffs’ due process claims must fail.

For the foregoing reasons, plaintiffs’ actions are dismissed.

      . Specifically, section 805(b)(1) of Title VIII of the Trade and Tariff Act of 1984 (Steel Import Stabilization Act), Pub.Law 98-573, 98 Stat. 2948, 19 U.S.C.A. § 2253 note (West 1980 & Supp.1985) (SISA), provides in applicable part:
      In connection with the provisions of the Arrangement on European Communities' Export of Pipes and Tubes to the United States of America ... including any modification, clarification, extension, or successor agreement thereto (collectively referred to hereinafter as ‘the Arrangement’), the Secretary of Commerce is authorized to request the Secretary of the Treasury to take action pursuant to paragraph (2) of this subsection whenever he determines that—
      “(A) the level of exports of pipes and tubes to the United States from the European Communities is exceeding the average of annual United States apparent consumption specified in the Arrangement, or
      "(B) distortion is occurring in the pattern of United States-European Communities trade within the pipe and tube sector____

      . Section 805(b)(3) of SISA provides:

        Nothing in this subsection may be construed as prohibiting the Secretary of Commerce from permitting the importation of additional quantities of specific products in cases where the Secretary determines that conditions of short supply or emergency economic situations related to market demand exist; except that a short supply or emergency economic situation shall not be considered to exist solely because domestic producers are unwilling to supply products at prices below their costs of production (as determined by the Secretary of Commerce).

      . Article 8 of the Arrangement provides:
      The U.S. shall accept exports of pipes and tubes in addition to those permitted under section 1 and 2 where a shortage of supply is identified, i.e., where the U.S. industry is unable to meet demand in the USA for a particular product. At the request of the EEC, on the basis of information received from U.S. consumers, consultations shall take place between the EEC and the U.S. authorities. If necessary, the advice of an independent expert may be sought by either party.
      The U.S. shall make a decision under this section on the basis of objective evidence from all relevant sources within a maximum of sixty days from the date of the request for consultations.
      The US recognizes that priority should be given to the examination, under the "short-supply” provisions of this Arrangement, of requests concerning contracts recognized to have been already concluded between USA and EC enterprises and which are in course of execution in connection with large projects.

      . 28 U.S.C. § 1581(i) (1982) reads as follows:
      § 1581. Civil actions against the United States and agencies and officers thereof
      ... (i) In addition to the jurisdiction conferred upon the Court of International Trade by subsections (a)-(h) of this section and subject to the exception set forth in subsection (j) of this section, the Court of International Trade shall have exclusive jurisdiction of any civil action commenced against the United States, its agencies, or its officers, that arises out of any law of the United States providing for—
      (1) revenue from imports or tonnage;
      (2) tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of revenue;
      (3) embargoes or other quantitative restrictions on the importation of merchandise for reasons other than the protection of the public health or safety; or
      (4) administration and enforcement with respect to the matters referred to in paragraphs (l)-(3) of this subsection and subsections (a)-(h) of this section.

        . DOC’s use of notice and comment procedures is not an admission of the APA’s applicability, as plaintiffs contend. It appears an expedient way to carry out the terms of the Arrangement. The use of similar procedures in the Florsheim case did not mandate broad judicial review.

      . Plaintiffs argue that short supply determinations are not encompassed within the foreign affairs power because Congress has instructed the Secretary of Commerce, rather than the President, or the Secretary of State, to act on short supply requests. The Secretary of Commerce is involved in some foreign affairs matters apart from this area. See, e.g., 22 U.S.C. § 2123(a)(2) (1982). Furthermore, as a cabinet officer the Secretary is subject to the direction of the President.