author: JAMES HARVEY, District Judge.

text:
    Joseph S. MARINO and Sally Marino, and Marino Sports Center, Inc., a Michigan corporation, Plaintiffs, v. Candice McDONALD, Doris M. Lyon, Cy C. Zytowski, Edward J. Kelly, Antoine G. Khouri, Robert G. Lyons, Richard M. Sheehy, individually and acting as the Harrison Township Board, and Candice McDonald, individually and acting as the Harrison Township Supervisor; and Herbert Glascow, individually and acting as the Harrison Township Building Inspector, and Laura Paletta, individually, and Harrison Township, a Charter Township, Defendants.
    Civ. A. No. 83-CV-9045 PH.
    United States District Court, E.D. Michigan, S.D.
    June 20, 1985.

      Costanzo Z. Lijoi, Bellanca, Beattie, DeLisle Suchy & Matish, Harper Woods, Mich., for plaintiffs.
    Timothy Sinclair, Mt. Clemens, Mich., Patrick M. Barrett, Detroit, Mich., for defendants D. Lyon, C. Zytowski, E. Kelly, A. Khouri, R. Sheehy, H. Glascow, L. Paletta and Harrison Tp.
    Steven Donavan, Wenger & Donavan, Harper Woods, Mich., for Robert G. Lyons.
   MEMORANDUM OPINION AND ORDER

JAMES HARVEY, District Judge.

In the ease at bar, the plaintiffs’ have brought suit pursuant to 42 U.S.C. § 1983 alleging that the defendants violated their federal constitutional rights to Due Process and Equal Protection in connection with the revocation of a special land use variance. Plaintiffs have also set forth a pendant state claim. The Court now has before it defendants’ motion for summary judgment.

Summary judgment is appropriate only where no genuine issue of material fact remains to be decided and the moving party is entitled to judgment as a matter of law. Willetts v. Ford Motor Co., 583 F.2d 852, 855 (6th Cir.1978); F.R.Civ.P. 56(c). In applying this standard, the Court must view all materials offered in support of a motion for summary judgment, as well as, all pleadings, depositions, answers to interrogatories, and admissions properly on file in the light most favorable to the party opposing the motion. Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974); United States v. Diebold, 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Smith v. Hudson, 600 F.2d 60 (6th Cir.1979).

Accepting the facts to be as alleged in plaintiffs’ complaint, they are as follows: The individual plaintiffs are the owners of a parcel of land in Harrison Township, Michigan, which is zoned for general business use. Plaintiff Marino Sports Center, Inc. leases this property. On or before May 12, 1982, the plaintiffs filed a request with the Harrison Township Planning Commission for a site plan approval in order to make certain improvements to the land. The plaintiffs also applied to the Planning Commission for a special land use permit to allow the construction and operation of a go-cart track.

On June 24,1982, after proper notice, the Township Planning Commission conducted a public hearing in order to review plaintiffs’ site plan and special use permit requests. Following that hearing, the Planning Commission approved plaintiffs’ proposed site plan and also voted to approve plaintiffs’ special land use permit for a period of one year.

On June 25, 1982, the plaintiffs asked defendant Harrison Township Building Inspector Herbert Glasgow to issue them a building permit for the construction of the go-cart track. Mr. Glasgow informed the plaintiffs that no building permit was required and that they could proceed with construction. Plaintiffs entered into a construction contract and began bulldozing work that day.

On June 29, 1982, the plaintiffs were informed by defendant Township Supervisor Candice McDonald that the Harrison Township Board of Trustees had met the previous evening and passed a resolution purporting to prevent further construction by the plaintiffs until the next board meeting in two weeks. In the interim, the defendant Board of Trustees had requested the township attorney to determine whether the action of the Township Planning Commission could be overruled by the Board of Trustees. The township attorney was to present his report to the Board of Trustees during the July 12, 1982 meeting. Neither the plaintiffs nor the general public was given notice that the Board intended to debate this matter during its June 28th meeting. Also on June 29, defendant Glasgow issued a stop work order directing the plaintiffs to suspend all construction. The plaintiffs claim that neither defendant McDonald nor the Board of Trustees had authority to issue a stop work order.

At some time prior to the July 12 Board of Trustees meeting, the plaintiffs met with the township attorney and the township engineer. The township attorney informed the plaintiffs that the special land use approval granted by the Township Planning Commission was final and could not be overturned by the Board of Trustees. The plaintiffs were further advised that the only requirements which they needed to satisfy in order to resume construction were to obtain culvert and water permits from Macomb County. Finally, the township attorney urged the plaintiffs not to attend the July 12, 1982 Board of Trustees meeting. In the interim between their meeting with the township attorney and the July 12 Board of Trustees meeting, the plaintiffs spent in excess of $15,000.00 in further construction.

The Board of Trustees met, as scheduled, on July 12 and again discussed plaintiffs’ special land use variance request. At that meeting, the township attorney advised the Board that it could not overrule the Planning Commission’s approval of plaintiffs’ special land use variance. He did inform the Board, however, that it could appeal the Township Planning Commission’s decision to the Township Board of Zoning Appeals. Plaintiffs allege that defendants McDonald and Khouri “advised and encouraged” citizens in attendance to appeal.

On July 13, 1982, the Board of Trustees filed its appeal with the Board of Zoning Appeals. A separate appeal was also filed by the Pointe Rosa Homeowner’s Association. Plaintiffs were served with a second stop work order based on Sections 2202 and 2203 of Article 20 of the Township Ordinances which permits stop work orders to be issued when a matter is appealed to the Board of Zoning Appeals.

On July 14, the plaintiffs filed an action in Michigan Circuit Court seeking an injunction preventing the Board of Trustees from appealing the Planning Commission’s grant of the special land use variance to the Board of Zoning Appeals. The plaintiffs also sought an order of mandamus compelling the defendant Township to issue a building permit. On July 20, 1982, the Macomb County Circuit Court issued a decision denying plaintiffs’ requests.

The Board of Zoning Appeals met twice to consider the Board of Trustee’s appeal. Following public notice, “the Board of Zoning Appeals met on July 22, 1982, heard arguments, took testimony, and reviewed the record. Citizens were allowed to comment.” Joseph F. Marino, et al. v. Candice McDonald, et al, No. 69464, slip op. at 2 (Mich.Ct. of App.1984). “On July 28, 1982, the Board of Zoning Appeals again met. On motion of Member Lawrence J. Fischer, the Board voted to reverse the grant of a special land use permit on finding plaintiffs’ request did not meet the requirements of Harrison Township Ordinance No. 1907.” Id. Plaintiffs had notice of these hearings, attended the meetings and were represented by counsel.

Following the adverse decision of the Board of Zoning Appeals, the plaintiffs appealed to the Michigan Circuit Court in and for the County of Macomb. That Court affirmed the decision of the Board of Zoning Appeals on January 18, 1983. The plaintiffs then appealed to the Michigan Court of Appeals. On April 5, 1984, the Michigan Court of Appeals affirmed both the decision of the Circuit Court which refused to enjoin the appeal of the Board of Trustees to the Board of Zoning Appeals and the decision of the Circuit Court upholding the denial of the special land use variance.

Having failed to obtain the relief sought in Michigan state court, the plaintiffs filed suit in this Court alleging that the defendants violated their federal constitutional rights to Due Process and Equal Protection. The Court now has before it defendants’ motion for summary judgment and award of costs and attorney fees. Succinctly, the defendants argue that the plaintiffs’ federal constitutional claims are deficient for two reasons. The defendants argue that the plaintiffs were deprived of no cognizable liberty or property interest and, assuming arguendo that they were, that deprivation is not attributable to the defendants. Having considered defendants’ arguments and plaintiffs’ responses carefully, the Court is persuaded that defendants’ motion for summary judgment should be granted.

In order to have a cognizable Due Process or Equal Protection claim, the plaintiffs must be able to demonstrate both that they were deprived of a property interest and that that deprivation was occasioned by state action.

The dispositive issue presented by defendants’ motion for summary judgment is whether the plaintiffs have alleged the existence of a property interest sufficient to sustain a Due Process claim and withstand a motion for summary judgment. The plaintiffs argue that the special land use variance granted them by the Harrison Township Planning Commission was “a right to use property” under Michigan law which could not be taken without Due Process. (Plaintiffs’ answer to motion for summary judgment, p. 5). Having reviewed plaintiffs’ arguments and the record in this matter, the Court has concluded that Michigan law afforded the plaintiffs no right to a special land use variance in this case. Moreover, the Court finds that the plaintiffs are precluded from raising this issue in this Court in light of the decision of the Macomb Circuit Court and the Michigan Court of Appeals.

The United States Supreme Court has addressed generally the issue of what constitutes a property interest in the seminal cases of Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). The essence of the Supreme Court’s decision in these two cases is that a plaintiff can demonstrate a constitutionally protect-able property interest only if he can show that he was entitled to some specific benefit under state law.

To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims.
Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.

Roth, 408 U.S. at 577, 92 S.Ct. at 2709. The plaintiffs argue that they can demonstrate the requisite property interest inasmuch as they claim a right under Michigan law to the special land use permit. The plaintiffs further argue that the existence of this property interest is unaffected by the decisions of the Michigan Circuit Court and Court of Appeals. Because of their importance, the Court will now turn to an examination of those decisions.

As pointed out in the Court’s recitation of the facts in this case, the plaintiffs pursued three separate actions in the Michigan courts following the decision of the Board of Trustees to appeal the grant of the special land use variance. The plaintiffs’ first action was an attempt to obtain an order from the Macomb County Circuit Court enjoining the Board of Trustees from taking an appeal of the Planning Commission’s action to the Board of Zoning Appeals. In that action, the plaintiffs argued that the defendants should be enjoined from taking an appeal from the Planning Commission’s decision for the reason that “the board of zoning appeals cannot hear an appeal filed by the township itself because the township board appoints the zoning board of appeals, creating a coercive conflict of interest as a matter of law.” Joseph F. Marino, et al. v. Candice McDonald, et al., No. 82-2497 AW, slip op. at 2 (Mich.Circuit Ct.1982). In an opinion dated July 21, 1982, Michigan Circuit Judge Kenneth Sanborn rejected that argument and refused to enjoin the Board of Trustee’s appeal. That decision was ultimately affirmed by the Michigan Court of Appeals in its opinion of April 5, 1984.

Following the refusal of the Michigan Circuit Court to enjoin the appeal, the Board of Zoning Appeals reversed the decision of the Township Planning Commission which granted the plaintiffs the special land use variance. Unsatisfied with that action, the plaintiffs returned to Michigan Circuit Court to have the special land use permit reinstated.

Before the Circuit Court, the plaintiffs raised five arguments in support of their position that the decision of the Board of Zoning Appeals should be reversed. The plaintiffs first argued that the Board of Zoning Appeals should be estopped from denying the plaintiffs a permit because of the plaintiffs’ reliance on the Planning Commission’s action. The plaintiffs’ second argument in support of reversal was that two members of the Board of Zoning Appeals should have disqualified themselves for actual bias. The plaintiffs next argued that the Board of Zoning Appeals improperly placed the burden of proof on them during the hearing instead of on the Township. Finally, the plaintiffs argued that the Board of Zoning Appeals failed to identify adequate facts to justify a reversal and that the decision was not supported by competent evidence. Joseph F. Marino, et al. v. Candice McDonald, et al., No. 82-2497, slip op. (Mich.Cir.Ct.1983).

The Circuit Court considered each of the arguments raised by the plaintiffs and rejected them. The Court found that estoppel was inappropriate in this case, that no conflict of interest existed, that the burden of proof was properly applied and that the decision of the Board of Zoning Appeals was supported by sufficient evidence. Id. at pp. 3-5.

Following that adverse determination, the plaintiffs appealed to the Michigan Court of Appeals seeking to have the special use permit reinstated. Before the Court of Appeals, the plaintiffs challenged the decision of the Board of Zoning Appeals on substantially the same grounds as before the Circuit Court. The Court of Appeals, however, found that it was unnecessary to address plaintiffs’ asserted challenges in that a separate grounds for affirmance existed. The Court of Appeals affirmed the revocation of the land use permit because it found that “the permit, as issued by the planning commission, subjected the use to a time limitation and, as such, was illegal under the rule stated in Room & Board Homes v. Detroit, 67 Mich.App. 381 [241 N.W.2d 216] (1976).”

As was noted earlier, the Harrison Township Planning Commission granted plaintiffs’ request for a special land use variance on the condition that it was granted for a period of one year. After the expiration of that initial one-year period, the Planning Commission reserved the right to either extend or revoke the land use permit. In reviewing the validity of that action, the Michigan Court of Appeals ruled that:

Room & Board Homes v. Detroit, supra, held that once the board has determined that a use qualifies under the ordinance as a special exception or special land use, that use cannot be subject to a time limitation. Because, in the instant case, the planning commission subjected the special land use to a time limitation, its action did not comply with the laws of this state, and therefore, the permit cannot be allowed to issue under these circumstances.
Joseph F. Marino, et al. v. Candice McDonald, et al., No. 69464, slip op. at 3 (Mich.Ct. of App.1984).

Defendants’ motion for summary judgment raises the question of whether the holding of the Michigan Court of Appeals is dispositive of the issue of whether the plaintiffs were deprived of a property interest as defined by Michigan law. The plaintiffs claim that the decision of the Court of Appeals was not dispositive of this issue and that they were deprived of a cognizable property interest. The plaintiffs argue that because the decision of the Court of Appeals was based upon Room and Board Homes v. Detroit, 67 Mich.App. 381, 241 N.W.2d 216 (1976), “a review of the Room and Board decision is appropriate.” (Plaintiffs Answer to Motion for Summary Judgment, pp. 5-6). Plaintiffs then urge this Court to review the impact of the Room and Board decision on this case and hold that “the clear legal result in this case, according to Room and Board was the granting of a special land use unlimited by time.” Id. p. 6.

Nevertheless, any such holding by this Court would directly conflict with the Michigan Court of Appeals decision which upheld the denial of the special land use permit. The Michigan Court of Appeals did not, as plaintiffs urge this Court to find, hold that the effect of the Room and Board decision was to convert the special land use permit in question from a permit with a time limitation to an unlimited permit. Rather, the Court of Appeals held that the permit was illegal and that it “cannot be allowed to issue under these circumstances.” Joseph F. Marino, et at. v. Candice McDonald, et al, No. 69464, slip op. at 3 (Mich.Ct. of App.1984).

Having concluded that the Michigan Court of Appeals held that the plaintiffs are not entitled to a special land use permit under Michigan law, the Court must now turn to a discussion of the res judicata effect of that decision on this case and of the impact of that ruling on plaintiffs’ Section 1983 claim.

The doctrine of res judicata embodies two types of preclusion: claim preclusion and issue preclusion or collateral estoppel.

Claim preclusion under which “final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action,” Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 2427, 69 L.Ed.2d 103 (1981), Restatement (Second) of Judgments § 24 (1982), and issue preclusion, under which a decision precludes relitigation of the same issue on a different cause of action between the same parties once a court decides an issue of fact or law necessary to its judgment.
Duncan v. Peck, 752 F.2d 1135,1138 (6th Cir.1985); See also, Migra v. Warren City Dist. Bd. of Ed., [465] U.S. [75], 104 S.Ct. 892, 79 L.Ed.2d [56] 59 n. 1 (1982).

In Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980) and Migra v. Warren City School Dist. Bd. of Ed., supra, the Supreme Court held that the Full Faith and Credit Clause of the Federal Constitution, as implemented by 28 U.S.C. § 1738, requires federal courts to give state court judgments the same preclusive effect in a later Section 1983 action as it would be given under the law of the state in which the judgment was rendered. 465 U.S. at-, 104 S.Ct. at 895, 79 L.Ed.2d at 61. See also, Duncan v. Peck, 752 F.2d at 1139. Accordingly, the Court must review the Michigan law of res judicata to determine what preclusive effect it would give the holding of the Michigan Court of Appeals.

After having reviewed Michigan law, the Court believes that it is clear that the plaintiffs are not precluded from raising their Section 1983 claim in this Court. Succinctly,, the Michigan law of res judicata would not hold that the preclusive effect of the Michigan Court of Appeals decision is such that the plaintiffs are altogether barred from raising their Section 1983 claim. See, Mason v. Mason State Bank, 63 Mich.App. 288, 234 N.W.2d 489 (1975) and Grocery Co. v. Purchasing Co., 289 Mich. 225, 286 N.W. 221 (1939).

The Court does believe, however, that the Michigan law of collateral estoppel would give the decision of the Michigan Court of Appeals such preclusive effect so as to foreclose the plaintiffs from raising any argument in this Court that they had a vested interest in or entitlement to a special land use variance. Under Michigan law, “collateral estoppel will bar the relitigation of issues actually litigated and determined in the first suit where there is a ‘substantial identity’ of parties.” Mason v. Mason State Bank, 63 Mich.App. 288, 295, 234 N.W.2d 489 (1975), quoting Braxton v. Litchalk, 55 Mich.App. 708, 717-20, 223 N.W.2d 316 (1974). When, in an earlier proceeding, a material issue directly involved in the proceeding has been resolved against a party, Michigan law prevents the losing party from relitigating that issue in a subsequent action. See, Gose v. Monroe Auto Equip., 409 Mich. 147, 161, 294 N.W.2d 165 (1980); Clements v. Constantine, 344 Mich. 446, 73 N.W.2d 889 (1956); City v. Storm Sewer Drain Dist., 309 Mich. 646, 16 N.W.2d 106, 109 (1944); and Stolaruk v. Dept. of Transportation, 114 Mich.App. 357, 319 N.W.2d 581 (1982).

Applying the applicable law to the case at bar, the Court finds that the Michigan doctrine of collateral estoppel precludes the plaintiffs from raising any argument before this Court that they were entitled either to a special land use permit in this case or to not have the issued permit revoked.

Although the Court has held that the applicable form of res judicata is issue preclusion and not claim preclusion and that the plaintiffs are entitled to raise their Section 1983 claims, the Court finds that the resolution of the issue preclusion issue is dispositive of this case. In resolving against the plaintiffs, the question of whether they were entitled to any benefit under state law, the Court has removed a necessary element of the Section 1983 claims in this case. For the plaintiffs will necessarily be unable to establish a Due Process or Equal Protection claim if they are unable to show that they were deprived of a cognizible liberty or property interest. See, Board of Regents v. Roth and Perry v. Sindermann, supra.

Accordingly, plaintiffs’ federal constitutional claims as contained in Counts I, II, III and IV of the complaint are DISMISSED WITH PREJUDICE.

Plaintiffs’ pendant state law claims are hereby DISMISSED WITHOUT PREJUDICE. See, United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) and Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974).

Finally, the Court has before it defendants’ request for attorney fees. Having carefully reviewed this matter, the Court has determined that it cannot conclude that plaintiffs’ action was frivolous. Smith v. Smythe-Cramer Co., 754 F.2d 180 (6th Cir.1985). Accordingly, defendants’ request for costs and attorney fees are DENIED.

IT IS SO ORDERED.


source: Caselaw Access Project

author: SELYA, District Judge.

license: Public Domain

text:
    UNITED STATES of America v. Thomas M. HILL.
    Crim. No. 84-092-S.
    United States District Court, D. Rhode Island.
    June 20, 1985.

      Robert M. Krause, Asst. U.S. Atty., Lincoln C. Almond, U.S. Atty., Providence, R.I., for plaintiff.
    Toro Law Associates, Eugene F. Toro, Providence, R.I., for defendant.
   Memorandum and Order

SELYA, District Judge.

This matter is before the court on the defendant’s motion to reduce his sentence. Fed.R.Crim.P. 35(b). The government has objected.

To recapitulate briefly, Hill was indicted by a grand jury in this district for violation of 18 U.S.C. § 656. He pled guilty on January 16, 1985. On February 20, 1985, the court imposed an 18 month jail sentence. Hill has been serving that sentence since March 18 (the court having granted the privilege of voluntary surrender).

The function of Rule 35(b) is simply to allow the district court to decide if, on further reflection, the sentence was draconian. United States v. Maynard, 485 F.2d 247, 248 (9th Cir.1973). The rule is intended to cede to a convicted felon a second bite at the apple before the sentencing judge. United States v. Colvin, 644 F.2d 703, 705 (8th Cir.1981). It also gives “the judge an opportunity to reconsider the sentence in the light of any further information about the defendant or the case which may have been presented... in the interim.” Id., quoting United States v. Ellenbogen, 390 F.2d 537, 543 (2d Cir.), cert. denied, 393 U.S. 918, 89 S.Ct. 241, 21 L.Ed.2d 206 (1968). At bottom, such a motion is a plea for post hoc leniency addressed to the sound and informed discretion of the sentencing judge. United States v. Hooton, 693 F.2d 857, 859 (9th Cir.1982) (per curiam); United States v.Eddy, 677 F.2d 656, 657 (8th Cir.1982); Colvin, 644 F.2d at 705.

In this case, the movant importunes the court to shrink his sentence because of (i) Hill’s cooperation “in a large and extensive investigation ... of a complicated scheme to defraud banks in Connecticut,” and (ii) “expensive and severe financial hardship which has befallen his wife and children.” Although Hill’s points are eloquently voiced by seasoned counsel, they miss the mark.

The defendant’s cooperation was clearly anticipated and taken into account at the time of his original sentencing. Such an anticipation was mentioned in the presentence report, and alluded to in open court on February 20. At a side-bar conference during the sentencing hearing, counsel for the government made it crystal clear that such cooperation was to count for Hill’s benefit in respect to (other) potential charges against him in Connecticut, and would not earn him any credit vis-a-vis this sentence. Defense counsel did not demur in any way. And, the plea agreement be-' tween the government and the defendant bears that understanding out. See, e.g., letter of January 17, 1985 from Assistant U.S. Attorney Krause to Attorney Toro. Hill’s attempt at this time to characterize his self-interested cooperation as a ground for mitigation of the instant sentence is disingenuous. Unlike a supermarket sale, he should not garner “double coupons” for performing in the very way he led the court to believe he would perform.

The family hardship prong of the motion is equally captious. The district courts have consistently declined to let such lamentations interfere with the execution of a fair and just prison sentence. E.g., United States v. Wiese, 539 F.Supp. 1208, 1209 (W.D.N.Y.1982); United States v. Rodriguez, 444 F.Supp. 163, 164 (S.D.N.Y.1978). As Judge Cooper aptly noted:

We are well aware of the hardships defendant claims his incarceration has imposed upon his wife and children. Indeed, they probably exceed defendant’s present privations. We certainly are not unmindiful of the harm to family that his criminal department produced, but these are factors defendant should have weighed before he chose to commit the act he did.

Rodriguez, 444 F.Supp. at 164.

The court expressed its concern for Hill’s family at the time of sentencing, and renews that sentiment today. But, in the final analysis, it is the convicted defendant — not society or the criminal justice system — who bears the onus for such regrettable dislocations.

The court has reviewed the entire case file with care. The enormity of the crime, the blatant and repetitious nature of the acts, the defendant’s egregious breach of fiduciary duty, the substantial monetary loss occasioned in consequence of Hill’s conduct, and the other factors referred to by the court in pronouncing sentence, all counsel toward reaffirmation of the sanction originally levied. As this court noted at the time: “if we are not to sink back into the morass of a more primitive age, there must be accountability in our society.”

The movant has shown no sufficient grounds for relief from his sentence. The motion is denied.

So ordered.

      . WEDNESDAY, FEBRUARY 20, 1985
      (SIDE BAR)
      MR. KRAUSE: For purposes of cooperation I understand Gene has made him available if the Connecticut authorities want to speak with him with the understanding that whatever Mr. Hill does for purposes of cooperation in Connecticut he does for his own benefit with respect to the investigation in Connecticut because he is a major target of the investigation with respect to a bank that was involved in a loss there. To the extent he cooperates this is for purpose of mitigation of punishment in Connecticut and not in Rhode Island.


author: ROY, District Judge.

text:
    Pearl DOYEL, Plaintiff, v. CITY OF MARIANNA, Marianna Building Inspector Lloyd Wilson, and Jack Gentry, Defendants.
    No. H-C-84-66.
    United States District Court, E.D. Arkansas, E.D.
    June 20, 1985.
    Bill W. Bristow, P.A., Jonesboro, Ark., for plaintiff.
    Robert J. Donovan, Daggett, Van Dover, Donovan & Cahoon, Marianna, Ark., Jacob Sharp, Jr., Laser, Sharp & Mayes, P.A., Little Rock, Ark., for defendants.
   ORDER

ROY, District Judge.

Pending before the Court is the Motion for Summary Judgment filed by Defendants City of Marianna and Marianna Building Inspector Lloyd Wilson.

Plaintiff alleges in this action the Defendants conspired to deny her a permit to place a mobile home on her lot in the City of Marianna because she has rented to Blacks in the past. She alleges the Defendants’ actions violated her federal substantive and procedural due process rights and seeks redress under 42 U.S.C. § 1983 and § 1985. Plaintiff asks the City of Marianna zoning ordinance be declared unconstitutional, for compensatory and punitive damages and that the City be enjoined to issue the permit.

The City and Wilson assert in their Motion that this action is barred as to them because of the doctrines of res judicata and collateral estoppel.

On July 22, 1983 the City filed a Petition for Declaratory Judgment in the Chancery Court of Lee County, Arkansas asking the court to determine “what rights, if any, the citizens of the City of Marianna have to locate trailers or mobile homes in areas designated R-3 Residential and in other areas in the City of Marianna____” Plaintiff and her daughter, Alyee Doyel Wheeler, filed a Complaint In Intervention in that action on September 6, 1983 recounting her unsuccessful efforts to obtain a permit from Mr. Wilson. She alleged the refusal to issue the permit was “arbitrary and capricious in view of the fact that a permit was issued to Janette Jaco____”, that there was no established procedure to issue permits and that the ordinance was “unconstitutional on its face because it is unreasonably vague upon its face.” On January 4, 1984 the Chancellor held for the City in all respects and ordered Plaintiff to remove the mobile home from her lot. This decision was not appealed. On April 27, 1984 Plaintiff filed the present federal action.

Defendants rely upon the Supreme Court’s decision in Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980) in support of their res judicata defense. In that action based upon 42 U.S.C. § 1983 the Supreme Court held that a state court judgment must be given the same preclusive effect by a federal court that it would have enjoyed in another court of that state. This rule has been applied in civil rights cases. Kremer v. Chemical Const. Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982). The Eighth Circuit has recently applied these principles in a civil rights case. Leslie v. Bolen, 762 F.2d 663 (8th Cir.1985) (per curiam).

These decisions are premised upon the United States Constitution’s Full Faith and Credit Clause as implemented by 28 U.S.C. § 1738 which requires federal courts to give the records and judicial proceedings of a state the same “full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State ... from which they are taken.” Allen held only that issues actually litigated in the state court are entitled to the same preclusive effect in a subsequent § 1983 action in federal court as they have in other courts of that state. The preclusive effect of a state court judgment as to a federal issue which could have been raised in state court but was not so raised was not determined in Allen. 449 U.S. at 97 n. 10, 101 S.Ct. at 416 n. 10. However, this question was finally settled by the Supreme Court in Migra v. Warren City School District Board Of Education, 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984). In that ease the Plaintiff sued her former employer, a school board, and three of its members in state court for breach of contract and wrongful interference with her contract of employment as the result of her termination. The state court ordered her reinstated and awarded her compensatory damages. She then filed a complaint in federal court against the Board, its members and the Superintendent of schools alleging violations of 1st, 5th and 14th amendment rights, seeking redress under 42 U.S.C. § 1983 and § 1985. Plaintiff argued that because she did not litigate her § 1983 federal claim in state court, the state court judgment does not preclude her suit in federal court. The Supreme Court refused to limit the preclusive effect to issues actually litigated in state court. The Court said:

Section 1983, however, does not override state preclusion law and guarantee petitioner a right to proceed to judgment in state court on her state claims and then turn to federal court for adjudication of her federal claims. We hold, therefore, that petitioner’s state-court judgment in this litigation has the same claim preclusive effect in federal court that the judgment would have in the Ohio state courts.

Id. 104 S.Ct. at 900.

The Supreme Court said that it was more important to give full faith and credit to state judgments than to guarantee a state forum for a state claim and a federal forum for a federal claim.

The Court finds Migra is controlling in this case so that if the Plaintiff’s claim would be precluded in an Arkansas state court, even though it had not been previously litigated, then it is precluded here.

The next step in the analysis of the Motion for Summary Judgment is to determine if the state courts of Arkansas would be precluded from hearing this claim because of the Chancery Court judgment. The Arkansas Supreme Court has said:

Generally speaking, it [res judicata] applies when there has been a final adjudication on the merits of an issue, ..., by a court of competent jurisdiction, on the matters litigated or which might have been litigated, [citations omitted] It is res judicata even though not adjudicated if the matters were necessarily within the issues and might have been litigated in the former shit, [citations omitted] The exact same parties are not required as it is sufficient if there is substantial identity of the parties, (emphasis added).

Wells v. Ark. Public Service Com’n, 616 S.W.2d 718, 719 (Ark.1981).

Plaintiff could have raised her claim of racial discrimination in the state court proceeding because state courts have concurrent jurisdiction over claims based on 42 U.S.C. § 1983 and the Federal Constitution. Kutzik v. Young, 730 F.2d 149 (4th Cir.1984). Plaintiff does not argue otherwise. However, she maintains that because the City filed the Declaratory Judgment action in the state court, preclusion should not apply since she did not choose the state forum.

The Plaintiff did choose the state forum in that she voluntarily filed a Complaint In Intervention in the state court action. She could have elected to file a federal court action, but instead she entered the state court action seeking relief, suffered an adverse determination from which she did not appeal, and then filed this federal action. This is exactly what the cited cases prevent.

Plaintiff is also concerned that the peculiar rules of equity jurisdiction might not allow full adjudication of her claims in Chancery. The Court does not believe that is a problem because Ark.Stat. Ann. § 22-405 allows for a transfer to Circuit Court in such an event. Also, as a general rule when an Arkansas Chancery Court has jurisdiction of an action for one purpose, it retains jurisdiction to settle all rights of the parties arising out of the particular transaction or occurence. Import Motors, Inc. v. Luker, 599 S.W.2d 398 (Ark.App.1980). Under the “clean up” doctrine once a chancery court acquires jurisdiction it may decide all issues rather than transferring the case to circuit court for a determination of damages. Bierbaum v. City of Hamburg, 559 S.W.2d 20 (Ark.1977). The Court believes Plaintiff’s claim of discrimination could have been decided in the state court action.

Plaintiff’s state and federal Complaints allege the same wrong: refusal to grant her a permit to place a mobile home on her lot. They both rely on the same set of facts: the events surrounding the decision to deny the permit. The two actions merely allege different grounds for recovery based on the same evidence. The Court finds the Arkansas Chancery Court judgment would preclude this action in another Arkansas court and, therefore precludes it here.

The Complaint must be dismissed as to the City of Marianna and as to Building Inspector Wilson who is sued only in his official capacity as an employee of the City. It has not been alleged that Wilson was acting in any capacity other than as the City’s agent in this matter. He is the city official charged with the responsibility of issuing the permit and is in privity with the City. In such a case the doctrine of claim preclusion also applies to him. Kutzik at 152.

The Complaint against Defendant Jack Gentry cannot be dismissed because 42 U.S.C. § 1985 provides that the action can be brought against any one or more of the conspirators. Milner v. National School of Health Technology, 409 F.Supp. 1389 (E.D.Penn.1976).

IT IS CONSIDERED, ORDERED AND ADJUDGED:

That the Motion for Summary Judgment filed by Defendants City of Marianna and Lloyd Wilson is granted and the Complaint is dismissed as to them.


author: DOUMAR, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. John ROURKE, et al., Defendants.
    Crim. No. 84-94-N.
    United States District Court, E.D. Virginia, Nortfolk Division.
    June 21, 1985.
    Tommy E. Miller, Robert E. Bradenham, II, Office of the U.S. Atty., E.D. Va., Walter E. Hoffman, U.S. Courthouse, Norfolk, Va., for plaintiff.
    Paul D. Brunton, Tulsa, Okl., Lloyd J. Parker, Jr., Portsmouth, Va., for defendant John Rourke.
   MEMORANDUM ORDER;

DOUMAR, District Judge.

On March 14, 1985, the defendant, John Rourke, was convicted of 21 U.S.C. § 963 (conspiracy to import cocaine) and 21 U.S.C. § 952(a) (importation of about 691 pounds of cocaine). Following the jury verdict of guilty and an evidentiary hearing, the Court ordered that Rourke, an accomplished pilot and the aviation consultant to a drug ring, be detained pending sentencing under 18 U.S.C. § 3143(a) of the Bail Reform Act of 1984. The Court now declines to modify that judgment for the reasons which follow.

Following the preparation of a pre-sentence report, the Court sentenced Rourke on May 3, 1985 to concurrent imprisonment terms of fourteen (14) years on both counts. Rourke now moves for bail pending appeal under 18 U.S.C. § 3143(b) as he remains incarcerated under the sentence imposed on May 3, 1985. Rourke argues that (1) the Bail Reform Act of 1984 is an ex post facto law as applied to him and (2) that the statute does not apply retroactively to a defendant like Rourke admitted to bail prior to the Act’s passage.

I.

Laying aside constitutional analysis and questions of retroactivity, the relevant subsections of the Bail Reform Act of 1984 read as follows:

§ 3143. Release or detention of a defendant pending sentence or appeal.
(a) RELEASE OR DETENTION PENDING SENTENCE. — The judicial officer shall order that a person who has been found guilty of an offense and who is waiting imposition or execution of sentence, be detained, unless the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any person or the community if released pursuant to section 3142(b) or (c). If the judicial officer makes such a finding, he shall order the release of the person in accordance with the provisions of section 3142(b) or (c).
(b) RELEASE OR DETENTION PENDING APPEAL BY THE DEFENDANT. — The judicial officer shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained, unless the judicial officer finds—
(1) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released pursuant to section 3142(b) or (c); and
(2) that the appeal is not for purpose of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial.
If the judicial officer makes such findings, he shall order the release of the person in accordance with the provisions of section 3142(b) or (c).

18 U.S.C. § 3143. This new Act created significant revisions in standards and procedures governing bail. See United States v. Williams, 753 F.2d 329, 332 (4th Cir.1985).

Upon Rourke’s conviction on March 14, 1985, the Court ruled that Rourke would be detained under Section 3143 Subsection (a), the section relevant to defendants pending sentencing. The evidence adduced at trial and at a post-verdict evidentiary hearing led the Court to find that clear and convincing evidence of Mr. Rourke’s return for sentencing was wholly lacking. Actually, much evidence to the contrary was revealed. Rourke himself is a pilot who has maneuvered planes in and out of the United States at will and his family continues to own an aviation business. He was in poor financial condition. Rourke testified that he had received communications and threats of an undisclosed nature, from other fugitive co-defendants involved in the smuggling venture. These continuing communications particularly troubled the Court.

On April 17, 1985, the Fourth Circuit ruled that Rourke’s appeal of his post-verdict but pre-sentence detention was “premature since the appellant has not yet been sentenced.” United States of America v. John Rourke, No. 85-5101 (4th Cir. April 17, 1985).

Following his sentencing on May 3,1985, Rourke renewed his motion in this Court for bail pending appeal to allow his release from detention at least until the Fourth Circuit acted. The motion is now brought under 18 U.S.C. § 3143(b) (Release or Detention Pending Appeal), whereas prior to sentencing the relevant subsection was 3143(a) (Release or Detention Pending Sentencing).

Subsection (a) requires the Court to detain the defendant unless clear and convincing evidence shows that the defendant will not flee or pose a danger to safety of any other person or the community. The Court found such evidence lacking on March 14, 1985.

Subsection (b), relevant after sentencing, places a greater burden upon the convicted and sentenced defendant. The defendant is detained unless the Court finds that both § 3143(b)(1) and (b)(2) are met. Clearly, if the burden of proof of either subsection is not met, the defendant is detained.

There have been numerous recent circuit courts of appeal decisions interpreting the appeal clause in § 3143(b)(2). See e.g., United States v. Molt, 758 F.2d 1198 (7th Cir.1985); United States v. Crabtree, 754 F.2d 1200 (5th Cir.1985) (one judge); United States v. Handy, 761 F.2d 1279 (9th Cir.1985); United States v. Giancola, 754 F.2d 898 (11th Cir.1985); and United States v. Miller, 753 F.2d 19 (3rd Cir.1985). Although these decisions interpret this subsection in a new and important way, these cases are irrelevant to the instant determination. Here, the Court stands pat on its findings at the post-conviction, presentence hearing that there was no showing by clear and convincing evidence that the defendant was not likely to flee. The operative language of subsection 3143(a) is identical to the language of subsection 3143(b)(1) regarding risk of flight. Hence, the Court need not further evaluate subsection 3143(b)(2) as Rourke desires, because he must meet the burdens of both subsections, not just one or the other.

II.

Rourke claims that the Bail Reform Act of 1984 is an ex post facto law under Article I, sec. 9 of the Constitution. Until October 12, 1984, the relevant statutory rules regarding bail pending appeal were as follows:

A person ... who has been convicted of an offense and is either awaiting sentence or sentence review under section 3576 of this title [18 USCS § 3576] or has filed an appeal or a petition for a writ of certiorari, shall be treated in accordance with the provisions of section 3146 [18 USCS § 3146] unless the court or judge has reason to believe that no one or more conditions of release will reasonably assure that the person will not flee or pose a danger to any other person or to the community. If such a risk of flight or danger is believed to exist, or if it appears that an appeal is frivolous or taken for delay, the person may be ordered detained____

18 U.S.C. § 3148 (repealed). As the Seventh Circuit stated recently in United States v. Molt, 758 F.2d 1198 (1985) (Posner, J.): “[T]he change in the standard for bail pending appeal is not an ex post facto law. ‘Even though it may work to the disadvantage of a defendant, a procedural change is not ex post facto citing Dobbert v. Florida, 432 U.S. 282, 293, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977); see e.g., United States ex rel Massarella v. Elrod, 682 F.2d 688, 689 (7th Cir.1982) (extending the statute of limitations); Dunn v. Maggio, 712 F.2d 998, 1001-02 (5th Cir.1983) (per curiam) (repealing pardon statute). It appears that the recent circuit decisions construing the Bail Reform Act of 1984 are in accord with the view, see, e.g. United States v. Crabtree, 754 F.2d 1200, 1201-02 (5th Cir.1985) (one judge); United States v. Miller, 753 F.2d 19, 21 (3rd Cir.1985). The Court follows these cases and rejects the ex post facto claim.

III.

Rourke also claims that the Bail Reform Act of 1984 is a prospective law, inapplicable to those admitted to bail prior to its effective date on October 12, 1984.

The Supreme Court has ruled that federal courts must apply the law in effect at the time it renders a decision, unless such a decision would result in manifest injustice or where legislative history or statutory direction is to the contrary. Bradley v. Richmond School Board, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974); See National Posters, Inc. v. N.L.R.B., 720 F.2d 1358, 1363 (4th Cir.1983). The Court here addresses the Congressional intent and the issue of “manifest injustice”.

Rourke was admitted to bail in the amount of Twenty-Five Thousand Dollars ($25,000.00) in the Northern District of Oklahoma on July 30, 1984. The Bail Reform Act of 1966 was then in effect. He was free on bail at the effective date of the Bail Reform Act of 1984, yet the government made no attempt to seek his detention under the new statute’s standards. However, after the jury returned a guilty verdict at his third trial, the government moved for his immediate detention. Under the new Act, 18 U.S.C. § 3143(b), the Court ordered Rourke’s detention for the many reasons revealed in the transcript of the post-verdict detention hearing held on March 14, 1985.

This Court reads 18 U.S.C. § 3143(b) as speaking in terms of conviction as the triggering event, i.e., “a person ... found guilty ... and sentenced to a term of imprisonment ... who has filed an appeal ... [is] detained, unless____” Rourke’s conviction occurred on March 14, 1985 and his sentencing was on May 3, 1985. Upon sentencing, the Court must review the defendant’s status under the criteria of 3143(b). A defendant’s conviction and a finding of guilty by a jury is a markedly different status from presumed innocence and release on bail prior thereto. The statute recognizes the different status.

The defendant in United States v. Zannino, 761 F.2d 52 (1st Cir.1985), was admitted to bail before the Act’s effective date. However, after its effective date, and before trial, the government moved for his detention under the “dangerous” defendant provisions of the new Act. See 18 U.S.C. § 3143(a). The district Court affirmed the U.S. Magistrate, who refused to revoke bail under the Bail Reform Act of 1984, and the First Circuit reversed.

The First Circuit in Zannino noted that even under the prior Bail Reform Act of 1966, bail terms were “subject to review when changed circumstances require that the release be reappraised.” Zannino, supra, at 55. The Court cited 18 U.S.C. § 3146(e), repealed by 18 U.S.C. § 3142(c), which reads in part:

A judicial officer ordering the release of a person on any condition specified in this section may at any time amend his order to impose additional or different conditions of release.

Id. Although Rourke is a sentenced and convicted defendant unlike Zannino, who was a pre-trial defendant, Rourke was equally subject to the repealed subsection above by virtue of repealed § 3148, which states that those “awaiting ... sentence review ... shall be treated in accordance with the provisions of section 3146 unless [there exists] a risk of flight or danger is believed to exist, or if it appears that an appeal is frivolous or taken for delay____” The Zannino court went on to state:

Thus the release on bail allowed under the 1966 Act was not an absolute grant; defendants were given notice that a change in conditions or terms could bring about the revocation of the release. That statute, furthermore, created no expectation that conditions would not change.
What has actually occurred with the passage of the pretrial detention provision may be considered a statutorily mandated change in those conditions ____ We hold that defendants released under the 1966 Bail Act must show their continued eligibility for bail by meeting the newly imposed conditions if this issue is affirmatively raised by the Government.

Zannino, supra, at 55-56. It is plain that even under the prior Bail Reform Act of 1966 release on bail was modifiable and never a vested right; hence, Rourke would not profit from its applicability.

Under the rationale of Zannino, or under an interpretation that the Bail Reform Act of 1984 is a prospective law effectuating a procedural change which fully applied to Rourke upon his sentencing, the Court holds that no manifest injustice results in ordering Rourke to begin serving his sentence pending appeal. There is no indication of any kind in the legislative history of the Bail Reform Act of 1984 that Congress intended it to apply to certain classes of defendants and not to others, nor of the Act’s retroactivity or prospectivity. Furthermore, since the Act had an obvious impact on pretrial detainees and post-conviction defendants, any limitation on its applicability would have been expressed by Congress. See generally Zannino, supra, at 56-57.

The Court recognizes that in United States v. Mitchell, 600 F.Supp. 164 (N.D.Cal.1985) Judge Patel held that the Bail Reform Act of 1984 was inapplicable to defendants admitted to bail under the prior, repealed Bail Reform Act of 1966. This Court is unable to discover any other reported decision to date following Mitchell. Indeed, in United States v. Allen, 605 F.Supp. 864 (W.D.Pa.1985), Judge Diamond rejected an “ex post facto law” challenge and a “retroactivity” attack on the Bail Reform Act of 1984, by pre-trial detainees alleged to have committed crimes prior to the Act’s passage. In another case, the First Circuit Court of Appeals rejected the “retroactivity” argument with respect to one charged before the new Act was effective and who sought pre-trial release. See United States v. Angiulo, 755 F.2d 969, 973-74 (1st Cir.1985).

The Court therefore holds that the Bail Reform Act of 1984 is not an ex post facto law as applied to Rourke; that the Act is intended to apply to pending criminal matters such as the instant case and that a conviction by a jury is a substantial change in status of the defendant. Rourke shall remain incarcerated pending appeal.

IT IS SO ORDERED.


author: GARRITY, District Judge.

text:
    CAMPANELLA CORPORATION, Plaintiff, v. LYNDON REALTY TRUST et al., Defendants.
    Civ. A. No. 77-3805-G.
    United States District Court, D. Massachusetts.
    June 21, 1985.

      Michael Gardner, R. Robert Popeo, Paul Wilson, H. Joseph Hameline, Robert M. Gault, Mintz, Levin, Cohn, Glovsky & Popeo, Boston, Mass., for plaintiff.
    Kenneth R. Berman, F. Anthony Mooney, Hale & Dorr, Boston, Mass., for defendants.
   MEMORANDUM AND ORDER ON DEFENDANTS’ MOTIONS TO DISMISS COMPLAINT AND FOR PARTIAL . SUMMARY JUDGMENT AND ON PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT

GARRITY, District Judge.

This action involves a lease agreement between plaintiff lessee and defendant lessors of adjacent concrete and asphalt plants in Hyannis, Massachusetts. Jurisdiction is based on 28 U.S.C. § 1332 (diversity of citizenship). Defendants have moved to dismiss the complaint for lack of subject matter jurisdiction and for failure of the real party in interest to prosecute. They also have moved for partial summary judgment. Plaintiff has filed a motion for partial summary judgment as well. After hearing oral argument and considering the briefs and affidavits submitted by the parties, the court denies defendants’ motions and grants plaintiff’s motion.

I. Statement of Facts

In 1971, plaintiff leased adjacent concrete and asphalt plants in Hyannis from defendants for a period of ten years. Both leases provided that “[t]he lessee will not assign this lease nor underlet the whole or any part of said leased premises without first obtaining the consent in writing of the lessor, which consent shall not be unreasonably withheld.” The leases also contained numerous covenants concerning the care and maintenance of the plants.

On January 21, 1975, plaintiff entered into a Purchase and Sale Agreement with Simeone Corporation (“Simeone”), in which plaintiff sold to Simeone a number of its assets, including its interest in the leases in question, subject to the terms of a so-called Lease Letter Agreement (“Agreement”). The Agreement, dated January 21, 1975, provided that plaintiff was to use all reasonable efforts to effect a valid and binding assignment of its leases, including obtaining the consent of defendants. It also stated that if defendants refused to consent to the assignment, plaintiff was to operate the plants for Simeone, in accordance with its instructions, at its expense, and that all net proceeds were to be delivered to Simeone. The Agreement further provided that if defendants instituted any litigation against plaintiff, “... by reason of the purported assignment of said leases to buyer at the closing or by reason of the seller’s operation of the businesses on the leased premises for the benefit of Buyer ... ”, Simeone would pay for and control the defense for plaintiff.

On February 13, 1975 and again on April 18, 1975, plaintiff wrote to defendants requesting their consent to the assignment of the leases. When defendants did not respond to plaintiff’s request for approval of the assignment, Simeone instructed plaintiff to operate both plants in accordance with the Agreement. According to plaintiff, it sent its employees and two representatives of Simeone to operate the plants on April 25, 1975, but they were locked out by defendants who ordered them off the premises. On the same date, defendants also sent plaintiff a letter in which they terminated the leases as of April 22, 1975 due to asserted breaches of the lease agreements.

Plaintiff subsequently brought this action for breach of contract, conversion and trespass. Defendants counterclaimed for breach of contract.

II. Defendants’ Motion to Dismiss the Complaint

Rule 17(a), F.R.Civ.P.,- requires that all actions be prosecuted in the name of the real party in interest. Defendants have moved to dismiss this action for lack of subject matter jurisdiction and for failure of the real party in interest to prosecute, claiming that Simeone, rather than plaintiff, is the real party in interest with respect to plaintiff’s three damage claims: the value of personal property allegedly converted, lost profits for the years 1975 through 1980, and loss of prepaid rent for 1975.

We hold that plaintiff is a real party in interest to this action, mainly because the Agreement between plaintiff and Simeone did not constitute an assignment or underlet of plaintiff’s leasehold interests in violation of its lease from defendants. Plaintiff’s promise to assign its leasehold interests to Simeone was conditioned upon the consent of defendant lessors, as stated explicitly in the January 21, 1975 Purchase and Sale Agreement as well as in the Agreement of the same date. The Agreement did provide that if defendants should refuse to consent to the assignment Simeone would exercise some degree of control over plaintiff’s business and its operation of the plants and also provided that Simeone would receive all of the net proceeds of such operation. However, this arrangement does not amount to an assignment since plaintiff retained the right to possess and use the leased premises and remained obligated to defendant lessors under the leases. See Restatement (Second) of Property, § 1.2; 51C C.J.S., § 2(2)(c); Ames v. B.C. Ames Co., 1957, 335 Mass. 511, 140 N.E.2d 654.

Plaintiff is a real party in interest with respect to its specific damage claims as well. Plaintiff is entitled to bring an action for conversion of the personal property on the leased premises, although title to the property passed to Simeone in January, 1975, since plaintiff had the right to immediate possession of the property at the time of the alleged conversion. Restatement (Second) of Torts, § 224; Mazeikis v. Sidlauskas, 1963, 346 Mass. 539, 194 N.E.2d 409. According to the Agreement, plaintiff was to operate the plants for Simeone’s benefit if defendants did not consent to the assignment. To do so, plaintiff would have had to use the personal property which it sold to Simeone. Therefore, plaintiff necessarily had possession of the property and may pursue this cause of action. Plaintiff also is entitled to sue defendants for loss of profits due to defendants’ alleged breach of the lease agreements. Although plaintiff agreed to transfer its proceeds from the operation of the plants to Simeone, its rights as against defendants remained unchanged; how plaintiff chose to dispose of its proceeds is not relevant to its right to earn them under the leases. The same is true of plaintiff’s claim concerning the 1975 prepaid rent. Plaintiff paid the rent to defendants and may sue for its return regardless of the fact that plaintiff and Simeone adjusted the purchase price paid to plaintiff to reflect the fact that these rents had been paid. That Simeone may have a cause of action against plaintiff for any money it recovers for the 1975 rent does not affect plaintiff’s right to sue defendants for the rent it paid. See Wright, Law of Federal Courts § 70 (4th ed.) (“The ‘real party in interest’ is the party who, by substantive law, possesses the right sought to be enforced, and not necessarily the person who will ultimately benefit from the recovery.”); Oliver B. Cannon and Son, Inc. v. Fidelity and Casualty Co., D.Del.1981, 519 F.Supp. 668.

Furthermore, dismissal of this action for failure of the real party in interest to prosecute would not further the purposes of Rule 17(a). “The basic purpose of Rule 17(a)’s insistence that every action be prosecuted in the name of the real party in interest is to protect a defendant from facing a subsequent similar action brought by one not a party to the present proceeding and to ensure that any action taken to judgment will have its proper effect as res judicata.” Prevor-Mayorsohn Caribbean v. Puerto Rico Marine Management, Inc., 1 Cir.1980, 620 F.2d 1, 4. Because any action brought against defendants by Simeone would be time barred, defendants are protected against the possibility of exposure to a second suit. Id. at 5. Therefore, dismissal under Rule 17(a) is not warranted. See also Wright, Law of Federal Courts § 70 (4th ed.).

III. Defendants’ Motion for Partial Summary Judgment

Defendants’ motion for partial summary judgment raises essentially the same issues, viz., whether the Agreement constituted an assignment of plaintiff’s lease such that plaintiff no longer has causes of action against defendants for conversion, lost profits, and loss of prepaid rent. As stated ante, the court finds that the Agreement was not an assignment. Consequently, plaintiff can maintain these damage claims against defendants and defendants’ motion is denied.

IV. Plaintiffs Motion for Partial Summary Judgment on Defendants’ Counterclaim

As a part of the leases, plaintiff agreed to purchase its requirements of aggregate (sand and stone used in the manufacture of asphalt and concrete) from defendant lessors or Hyannis Sand and Gravel, Inc. (“HS & G”). HS & G, a corporation owned at that time by Louis and Lila Lorusso, was located adjacent to the asphalt and concrete plants and produced aggregate.

Defendants’ counterclaim alleges numerous breaches of the asphalt and concrete plant leases, but it does not assert that plaintiff breached the leases by failing to purchase aggregate from defendant lessors or HS & G. However, plaintiff learned through discovery that defendants seek recovery for profits lost by HS & G for the two years following the termination of the leases, during which time HS & G was unable to sell aggregate.

According to plaintiff, HS & G, but not defendants, may bring an action to recover lost profits from plaintiff due to its failure to purchase aggregate during 1975 and 1976. If defendants were acting as agents for HS & G when the parties entered into the lease agreements, as defendants argue, then they are entitled to bring this claim for damages suffered by their principal, Mitsui & Co. v. Puerto Rico Water Resources Authority, D.P.R.1981, 528 F.Supp. 768, 776, provided that they are currently authorized by HS & G to assert this claim. Id. at 777, see also 2 S. Williston, A Treatise on the Law of Contracts § 293 (3d ed.) Defendants have presented no evidence that they have been so authorized. Therefore, plaintiff’s motion is granted.

V. Summary

Defendants’ motions to dismiss the complaint and for partial summary judgment are denied. Plaintiff’s motion for partial summary judgment is granted.

      . Defendant Louis Paul Lorusso was the lessor of the concrete plant; defendant Lyndon Realty Trust, with defendants Louis Paul Lorusso and Lila L. Lorusso as trustees, was the lessor of the asphalt plant. For simplicity, defendants will be referred to collectively as defendant lessors.

      . Defendants claim that plaintiff breached numerous provisions of the leases, particularly those obligating plaintiff to maintain and repair the premises and those obligating plaintiff to operate the plants in compliance with air pollution laws.

      . Were Simeone to be substituted as plaintiff, this court would lack subject matter jurisdiction since Simeone and defendants are citizens of Massachusetts and, therefore, diversity of citizenship would be lacking.

      . Simeone is not subrogated to the rights of plaintiff concerning the 1975 rent because of the purchase price adjustment. “Subrogation is an equitable adjustment of rights that operates when a creditor or victim of loss is entitled to recover from two sources, one of which bears a primary responsibility." Frost v. Porter Leasing Corp., 1982, 386 Mass. 425, 426, 436 N.E.2d 387. Plaintiff is not entitled to seek recovery of the rental payment from Simeone, but only from defendants.

      . Defendants also argue that plaintiff is not entitled to lost profits from the operation of the concrete plant because Simeone did not ask plaintiff to operate that plant after defendants failed to consent to the assignment. Whether plaintiff, acting on its own or on Simeone’s behalf, intended to operate the concrete plant is a question of fact.

      . Plaintiff argues that defendants’ counterclaim violates Rule 8, F.R.Civ.P., because it fails to allege specifically their claim for lost profits from the sale of aggregate. However, defendants seek these damages not as a result of plaintiffs breach of its promise to purchase aggregate, but as foreseeable damages from plaintiffs supposed breaches of the leases. Therefore, defendants’ counterclaim states the facts constituting its cause of action sufficiently for the purposes of notice pleading.

      . That defendants no longer have an ownership interest in HS & G is further indication that they are not authorized to act as its agent.

      . If, as plaintiff argues, defendants were acting as promisees of a third party beneficiary contract in which HS & G was a donee beneficiary, defendants are not entitled to recover damages suffered by HS & G. Restatement (Second) of Contracts § 307.


author: EDWARD WEINFELD, District Judge.

text:
    BROADCAST MUSIC, INC., Plaintiff, v. ALL-INDUSTRY TELEVISION STATION MUSIC LICENSE COMMITTEE, Leslie G. Arries, Jr., as Chairman of All-Industry Television Station Music License Committee, King Broadcasting Co., Meredith Corporation, Stauffer Communications, Inc., Taft Broadcasting Co., and Tribune Broadcasting Co.-WGN Continental Broadcasting Co., Defendants.
    No. 85 Civ. 4507 (EW).
    United States District Court, S.D. New York.
    June 21, 1985.

      Hughes Hubbard & Reed, New York City, for plaintiff; Robert J. Sisk, Norman C. Kleinberg, Michael E. Salzman, Jacqueline D. Gilbert, William H. Voth, New York City, of counsel.
    Weil, Gotshal & Manges, New York City, for appearing defendants and counterclaim plaintiff King Broadcasting Co.; Ira M. Millstein, James W. Quinn, R. Bruce Rich, Kenneth L. Steinthal, Lois Peel Eisenstein, Evie C. Goldstein, New York City, of counsel.
   OPINION

EDWARD WEINFELD, District Judge.

This litigation is the sequel to the failure of the parties after months of negotiation to agree upon the amounts and terms of licensing fees to be paid by defendants and other broadcasters to plaintiff, Broadcast Music, Inc. (“BMI”), for copyrighted musical compositions. Before the Court are cross-motions for preliminary injunctions which, in essence, center about the question whether or not a special shareholder meeting of plaintiff should be enjoined.

BMI is one of the two principal music performing rights licensing organizations in the United States. On behalf of composers and music publishers, it licenses performances of copyrighted music on radio and television. All shares of BMI’s stock are owned by members of the broadcasting industry and, thus, its shareholders are also its licensees. The defendants are representatives of or individual broadcaster/BMI shareholders: All-Industry Television Station Music License Committee (“the Committee”), and its Chairman, Leslie G. Arries, Jr., represent the local television station industry; the corporate defendants are all broadcaster/shareholders.

BMI moves, pursuant to Rule 65, Fed.R. Civ.P., to restrain the defendants from (1) taking any steps to call a special meeting of shareholders of BMI; (2) soliciting proxies from other shareholders; (3) communicating with other television broadcasters who are BMI licensees concerning proposed or existing licenses between BMI and its television station licensees; and (4) otherwise interfering with BMPs efforts to deal with its television licensee customers. It contends that defendants seek to “manipulate” the corporate machinery of BMI for anticompetitive purposes, i.e., “to force BMI to deal only through the Committee, to prevent BMI from individual licensing of its affiliates, and to fix the rates paid to BMI at an artificially low level.” In short, it is BMPs claim that defendants are engaged in a “garden variety” price fixing conspiracy and that the call for the meeting and the actions proposed thereat are in furtherance of the conspiratorial objectives.

After plaintiff and defendants’ representatives failed to reach an agreement, BMI informed its television licensees that their licenses, voluntarily extended during the pendency of other litigation, would expire on June 30, 1985, and that it would send them new proposed licenses for their consideration. Then followed the demand by defendants for plaintiff to call a special shareholder meeting.

Defendants oppose plaintiff’s motion for a preliminary injunction prohibiting the calling of such a meeting on grounds that plaintiff’s antitrust charge is simply “a tactic designed to delay [BMI’s] obligation under the BMI by-laws ... to call the Special Meeting requested by BMPs shareholders.” Accordingly, defendant/shareholders cross-move for a preliminary injunction ordering plaintiff to call the meeting pursuant to the due demand of the five shareholder/defendants. In addition, they seek to compel plaintiff to produce a shareholder list based upon a demand therefor, and an order restraining BMI from taking any actions pri- or to the holding of a special meeting which would frustrate the purposes of such a meeting.

Plaintiffs Motion for a Preliminary Injunction

It is well established in this Circuit that a party seeking preliminary injunctive relief must establish that such relief is “necessary to prevent irreparable harm” and that there is a likelihood of success on the merits of the underlying controversy. “In the alternative, [a party] may demonstrate irreparable injury and the presence of sufficiently serious questions going to the merits as to make them a fair ground for litigation, together with a balance of hardships tipping decidedly toward the movant.”

It is significant that, up to the time of the breakdown of negotiations, no claim is made that defendants wére engaged in conduct violative of the antitrust laws. The charges are based solely upon the demand by the shareholders that a meeting be called to consider their proposed resolutions. Other than the conjectures of BMI’s counsel and President as to the motives of defendants in the call for the meeting and the action that may be taken on the matters to be presented to the shareholders, there is not the slightest evidential support for plaintiff’s charges and concern for resulting antitrust conduct. Upon argument of these motions it was acknowledged that the sole evidence upon which plaintiff relies to show defendants’ anticompetitive purposes is the fact that defendants have demanded a shareholder meeting for the purpose of placing before BMPs shareholders certain resolutions and amendments to the bylaws and Certificate of Incorporation. Thus, in response to a question put by the Court as to whether the request for the calling of the meeting is sufficient in and of itself to establish plaintiff’s likelihood of success on the merits of its antitrust claims, counsel responded: “Exactly.”

Even if, however, plaintiff had made a showing of likelihood of success on the merits, it has patently failed to make the requisite showing of “irreparable harm” that would result from the failure to enjoin the calling of the meeting. Not only is it difficult to understand how the exercise of shareholders’ corporate franchise would constitute, in and of itself, an antitrust violation, it is equally difficult to understand what irreparable harm would be sustained by BMI. While plaintiff claims that it will suffer a “disastrous” loss of composers and authors and will be exposed to potential antitrust liability, such claims of “irreparable harm” are founded upon assertions which assume the ultimate facts to be established if plaintiff is to prevail.

First, plaintiff’s claims of irreparable injury are predicated upon an assumption that the resolutions it claims will result in price fixing will in fact be passed. However, that is by no means a foregone conclusion. Based upon its contention that the broadcaster defendants here are motivated solely by their self-interest in depressing the prices of licenses, plaintiff apparently assumes that a majority of shareholders will concur in defendants’ views. However, it was conceded upon the oral argument that the very members of the Board of Directors who voted to institute this action and to deny the demand for a special shareholder meeting are themselves broadcasters. It is therefore apparent that there is disagreement among broadcasters as to the wisdom of the defendants’ proposals.

Plaintiff’s claims of irreparable harm not only assume that the shareholders will adopt the resolutions, but also that the Board will approve them. The shareholder resolutions which form the principal basis of plaintiff’s price fixing claim are merely precatory in nature. They have no force in and of themselves. They “request and recommend” to the Board that it adopt a rate court procedure for resolving licensing disputes with local television broadcasters, and, pending the implementation of such a procedure, maintain the current license relationships with the stations. These recommendations do not have any force in terms of the actual implementation of pricing or licensing policy absent Board approval. Thus, even if the Court were to assume that the proposals would be passed, it would also have to assume Board approval, an assumption which is at once challenged by the refusal of the Board to call the requested meeting.

But plaintiff’s claims of irreparable harm not- only assume that the shareholder proposals will be passed, and that the Board would accord its approval, but also a loss of composers and authors or the institution by third parties of antitrust litigation. Any claim of the necessity of a preliminary injunction is repelled by such a chain of contingencies to the claimed irreparable harm. Moreover, it is difficult to understand why, if the parties’ abortive negotiations up to May 21 did not constitute antitrust conduct, the demand for and the holding of a special shareholder meeting and the prospect of passing resolutions including a rate court, whether realized or not, suddenly triggers antitrust conduct.

Finally, and entirely apart from plaintiff’s failure to establish irreparable injury if the requested meeting is held, is the issue of the shareholders’ right to exercise their franchise. Plaintiff seeks to silence its shareholders and to deny them their undoubted rights as shareholders of BMI. Under the bylaws of the corporation as well as the laws of the State of New York, the shareholders are entitled to express their views about the direction in which management should take the company. As this Court has stated in another context: shareholders have “a right to make their own decisions in matters pertaining to their economic self-interest, whether consonant with or contrary to the advice of others, whether such advice is tendered by management or outsiders or those motivated by self-interest.” Plaintiff’s contention that the demand for a special meeting is not an exercise in corporate democracy, but rather that its “sole purpose” is to fix prices simply assumes the ultimate question to be proven upon a trial.

Accordingly, plaintiff’s motion for a preliminary injunction is denied.

Defendants’ Motion for a Preliminary Injunction

Entities owning more than ten percent of the stock of BMI having made due demand upon the Secretary of the corporation, the Court directs plaintiff forthwith to call a special shareholders meeting, pursuant to the bylaws, upon at least ten days notice, and in accordance with the requirements of the New York Business Corporation Law. The Court also directs that plaintiff forthwith produce a shareholder list to defendants, plaintiff having failed to establish any grounds upon which such a request may be validly denied.

However, the Court sees no ground upon which to justify an order, as defendants request, compelling plaintiff either (1) to refrain from negotiating directly with individual broadcaster/licensees; or (2) to hold the meeting prior to June 30. Since defendants disavow any antitrust purpose in their demand for the shareholder meeting and the actions to be considered thereat, there is no reason to prohibit, during the pendency of the meeting, BMI from negotiating directly with other broadcasters with respect to licensing terms upon expiration of their present contracts. So, too, there is no reason to prevent these defendants or any other television broadcasters from communicating with one another, providing, of course, such communications are not for the purpose of antitrust activity.

Finally, it should be noted that the Court’s proposal, pursuant to Fed.R.Civ.P. 65(a)(2), that the matter be disposed of on the merits was foreclosed by the parties’ positions.

Submit order.

      . Wall v. Coughlin, 754 F.2d 1015, 1025 (2d Cir.1985); see, e.g., Citytrust, N.A. v. Citytrust, 756 F.2d 273, 275 (2d Cir.1985); Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979) (per curiam).

      . The proposed shareholder resolutions that are the focus of plaintiffs price-fixing charge read as follows:
      RESOLVED, BMI having previously agreed in principle to adopt and consent to a modification of its consent decree to provide for a “rate court” (i.e., provisions for a judicial resolution of a fair and reasonable BMI license fee in circumstances where a negotiated fee has not been reached between BMI and its licensees and related provisions for interim BMI licenses) in relation to its license relationship with radio broadcasters, the shareholders of BMI request and recommend: (i) that management and the Board of Directors develop and implement a similar provision adopting and/or consenting to a modification of BMI’s consent decree to provide for a rate court in relation to BMI’s license relationships with television broadcasters, and (ii) that management be directed to immediately commence discussions with representatives of BMI’s local television broadcast licensees relating to the development and implementation of such rate court provisions.
      RESOLVED, until such time as the BMI consent decree is amended to provide for a rate court for BMI’s television broadcast licensees (or, failing approval by the Government of a joint, consensual proposal for such an amendment, such time as BMI shall enter into a written agreement with representatives of BMI's local television broadcast licensees providing for an alternative mechanism for determining BMI license fees and matters pertaining to interim licenses in circumstances where BMI and its television broadcast licensees are unable to reach agreement), the shareholders of BMI request and recommend that management and the Board of Directors (i) maintain the status quo with respect to BMI’s license relationships with its local television broadcast licensees, whereby the station licensees pay BMI 58 percent of any payments for license fees as are made to ASCAP, and (ii) refrain from forwarding, without the consent of the industry-wide representatives of BMI’s local television broadcast licensees, any proposed license agreements) (or renewals of license agreements] to any actual or prospective local television broadcast licensees of BMI with the exception of television broadcasters coming on the air after the date hereof, which shall be governed by the same practices as have been in effect for new stations since February 1, 1983).
      The proposed bylaw that plaintiff also relies upon provides:
      The Corporation shall take no action with respect to procuring or entering into any license agreements or contracts (or renewal or non-renewal of any license agreements or contracts) between the Corporation and any broadcaster, except by the approval of a vote of three-quarters in number of the Board of Directors then in office (and no such action may be taken by any officer or committee of the Board of Directors), provided that the Board of Directors may authorize any officer to enter into any agreement or license approved by the Board of Directors as provided herein, but only with respect to all material terms approved by the Board and on substantially the same terms as approved by the Board. This Section shall not be amended, altered or repealed except by the holders of a majority in number of the issued and outstanding shares of the Corporation.
      Although defendants have not apparently amended their original demand, they concede that this bylaw must be passed as an amendment to BMI’s Certificate of Incorporation.

      . Hearing Transcript at 17.

      . The rate court procedure is one whereby licensees and a licensing organization may have their fee disputes judicially determined.

      . American Crystal Co. v. Cuban-American Sugar Co., 276 F.Supp. 45, 50 (S.D.N.Y.1967); see also Conoco, Inc. v. Seagram Co., Inc., 517 F.Supp. 1299 (S.D.N.Y.1981); Applied Digital Data Systems v. Milgo Electronic Corp., 425 F.Supp. 1163 (S.D.N.Y.1977); Armour & Co. v. General Host Corp., 296 F.Supp. 470 (S.D.N.Y.1969).


author: BENJAMIN F. GIBSON, District Judge.

text:
    Kendall COBB, et al., Plaintiffs, v. Judge Timothy M. GREEN, et al., Defendants.
    No. G83-285 CA.
    United States District Court, W.D. Michigan, S.D.
    June 21, 1985.
    Kenneth A. Birch, Birch, Dean & Preston, East Lansing, Mich., for plaintiffs.
    George H. Weller, Asst. Atty. Gen., Lansing, Mich., for Green and Steinman.
    Larry A. Salstrom, Cohl, Salstrom, Stoker & Aseltyn, Lansing, Mich., for 13th Judicial Cir. Court, et al.
   OPINION

BENJAMIN F. GIBSON, District Judge.

In Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the Supreme Court held that, absent “extraordinary circumstances,” considerations of comity and federalism require the federal courts to abstain from enjoining pending criminal proceedings in state court. In subsequent cases, the Court extended the doctrine of Younger to require abstention when the relief sought in federal court would interfere with ongoing state civil proceedings involving matters of special concern to the states. See, e.g., Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979) (child abuse proceedings); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) (civil contempt proceedings).

Before the Court now are motions asking the Court to reconsider its previous determination that “extraordinary circumstances” exist in this case which warrant a departure from Younger’s general rule of abstention. In order to understand the Court’s previous ruling and the grounds for defendants’ motions for reconsideration, a review of the procedural history of the case is required.

Plaintiff Kendall Cobb filed the initial complaint in this case on March 22, 1983, on behalf of himself and all other similarly situated individuals “to challenge the Defendants’ practice ... of refusing to appoint counsel to represent indigent defendants at hearings on charges of contempt of court for failure to comply with child support orders.” Complaint, Cobb v. Green, No. G83-285, Tí 1. Plaintiff urged that the due process clause of the fourteenth amendment requires representation by counsel during such contempt hearings. The initial complaint named as defendants Timothy M. Green, Judge of the 29th Judicial Circuit Court of the State of Michigan, and Colleen M. Steinman, Friend of the Court in the 29th Judicial District. Plaintiff’s complaint sought certification of the case as a class action, a preliminary injunction, and permanent injunctive and declaratory relief on behalf of the class.

On April 11, 1983, after a hearing, this Court issued its decision on the matter of preliminary relief. The Court enjoined defendants Green and Steinman from “incarcerating, threatening to incarcerate or ordering incarceration of [plaintiff Cobb] for non-payment of child support, unless and until plaintiff is advised of his right to appointed counsel if he is unable to afford representation at a hearing on the subject of such non-payment and is provided with such counsel if appropriate____”

One issue before the Court at that time was whether the doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), required the Court to abstain from deciding this case on its merits. In its decision not to abstain, this Court closely considered the case of Parker v. Turner, 626 F.2d 1 (6th Cir.1980), where the Sixth Circuit held that abstention under Younger was appropriate because no “extraordinary circumstances” existed to indicate that plaintiffs had no adequate means of redress in the state courts. In considering the question whether plaintiffs had an adequate means of redress, the Court of Appeals noted that it had

great difficulty accepting the argument that a person jailed for civil contempt for non-support in the state of Tennessee has no right of appeal. ... We note, however, that federal relief is not foreclosed forever. Should the Tennessee appellate courts be unable or unwilling to correct continuing unconstitutional conduct by the Juvenile Court judges, plaintiffs would then be in a position of showing “exceptional circumstances” which would warrant federal injunctive relief. Alternatively, the plaintiffs always have the remedy of federal habeas corpus available in individual cases.

626 F.2d at 10.

After carefully considering the Sixth Circuit’s rationale, this Court concluded that Parker did not govern the facts of this case. The “extraordinary circumstances” that were lacking in Parker were found to be present in this case because the issue raised here by plaintiff had already been decided against his interests by the Michigan Supreme Court. In Sword v. Sword, 399 Mich. 367, 249 N.W.2d 88 (1976), the Michigan Supreme Court held that no general due process right to counsel exists in civil non-support contempt proceedings. Given the holding of Sword, this Court found little reason to believe that the Michigan courts would reach a different result should plaintiff here appeal his case through the Michigan system. For that reason, this Court found that the “extraordinary circumstances” discussed in Younger existed and that abstention was therefore inappropriate.

Defendants now move for reconsideration, arguing that the recent Sixth Circuit decision in Sevier v. Turner, 742 F.2d 262 (6th Cir.1984), conclusively establishes that abstention under the Younger doctrine is required on the facts of this case. Plaintiff Sevier, like the plaintiff in this ease, was jailed after being found guilty of civil contempt for failure to pay child support. At his contempt hearing, as in the present case, Sevier was not advised of a right to counsel, either retained or appointed. Because the facts of Sevier are very similar to those presently before the Court, it is a case that must be closely considered. In particular, there are two aspects of the opinion that are important.

First, the Sevier court clearly held that plaintiff’s constitutional rights were violated because he was incarcerated as a result of a civil contempt hearing where he was not advised of his right to counsel, either appointed or retained. 742 F.2d at 267. Defendants argue that this was not a holding of Sevier, but was merely the court’s statement of plaintiff’s claim. A close analysis of the Sevier opinion, however, convinces this Court that the Sixth Circuit intended this as its holding.

In the portion of its opinion dealing with plaintiff's claims for monetary relief, the Sixth Circuit stated that:

Since Sevier was incarcerated for sixteen days as a result of the civil contempt hearing, he was entitled to have the assistance of counsel during that proceeding. See Lassiter v. Department of Social Services, 452 U.S. 18, 25-26, 101 S.Ct. 2153, 2158-59, 68 L.Ed.2d 640 (1981); Mastin v. Fellerhoff 526 F.Supp. 969 (S.D.Ohio 1981); Young v. Whitworth, 522 F.Supp. 759 (S.D.Ohio 1981). As indicated by the Supreme Court in Lassiter, the relevant question in determining if a defendant is entitled to counsel during this type of contempt proceeding is not whether the proceeding be denominated civil or criminal, but rather is whether the court in fact elects to incarcerate the defendant.

742 F.2d at 267. Although it dealt with the issue in one short paragraph, it is clear that the Sixth Circuit did in fact hold that plaintiff’s constitutional rights had been violated, resting its holding on the rationales of Lassiter, Mastín, and Young. That this was the holding is made clear by the fact that Sevier was remanded to the district court for trial on the issue of damages resulting from the violation of plaintiff’s constitutional rights. 742 F.2d at 271, 273.

Although this first aspect of the Sevier opinion is of some relevance, it appears in the portion of the opinion dealing with plaintiffs claims for monetary relief. Plaintiffs here have not sought damages, but injunctive and declaratory relief. Thus, this Court must turn to the portion of Sevier dealing with the equitable claims of the plaintiff. In that portion of the opinion, after having concluded that plaintiffs constitutional rights had been violated, the Sixth Circuit nevertheless held that the Younger abstention doctrine precluded the district court from issuing declaratory or injunctive relief.

This latter portion of the Sevier opinion further clarifies Sixth Circuit law on the pivotal issue in this case, the kind of “extraordinary circumstances” under which the district courts should deviate from Younger’s general rule of abstention. More accurately stated, because the Sevier court concluded that “extraordinary circumstances” did not exist in that case, the opinion clarifies what does not justify an exception to Younger’s general rule of abstention.

Plaintiff Sevier first argued that, because a Tennessee Court of Appeals had already held that indigent fathers had no right to counsel in contempt hearings involving child support arrearages, it would be fruitless to require an appeal through the state appellate courts. The Sixth Circuit rejected this argument, noting that the Tennessee case to which plaintiff referred was one decided prior to both the Lassiter opinion of the United States Supreme Court and the Parker decision of the Sixth Circuit. Further, the court noted that there were other Tennessee cases from which the court could infer that, once the right to counsel at such proceedings had been clearly established, the Tennessee courts would overturn any contempt sentence rendered without the opportunity for representation by counsel.

Plaintiffs second argument rested on the fact that his requests for leave to appeal his contempt sentence to the Tennessee Court of Appeals and the Tennessee Supreme Court had been denied. This, he contended, should surely constitute the kind of “extraordinary circumstances” contemplated by Younger. The Sixth Circuit, however, held that it did not. The court noted that plaintiffs request for interlocutory appeal may have been denied by the appellate courts on procedural, rather than substantive, grounds. Thus, the state courts may not have had an adequate opportunity to consider plaintiffs claim on its merits.

Given this interpretation of the “extraordinary circumstances” exception, this Court must reconsider its previous decision that it would not abstain. As previously explained, that decision rested on the Court’s recognition that the Supreme Court of Michigan decided in 1976 that a parent cited with civil contempt for non-support had no right to counsel. Sword v. Sword, 399 Mich. 367, 249 N.W.2d 88 (1976). Like the Tennessee case to which plaintiff Sevier referred, Sword was decided prior to the Supreme Court’s Lassiter decision and the Sixth Circuit’s Parker decision. Also similar to the facts the Court deemed important in Sevier, case law from the Michigan appellate courts suggests that, once an absolute right to counsel is recognized, those courts would overturn a finding of civil contempt if the parent has not been afforded the opportunity to be represented by counsel at his or her contempt hearing. See Gonzalez v. Gonzalez, 121 Mich.App. 289, 291, 328 N.W.2d 365, 366 (1982). Thus, under Sevier, this Court cannot assume that, simply because of the existence of the Sword case, an appeal to the state appellate courts would be unavailing. Instead, the Court must assume that, if a similar case was presented to the Michigan Supreme Court today, the result could be different.

In this regard, the Court notes further a change that has occurred since its previous ruling that makes it likely that the Michigan Supreme Court may not feel bound by Sword when a similar case arises. In Sword, the plaintiff was held in contempt under section 552.201 of Michigan Compiled Laws. See Mich.Comp.Laws Ann. § 552.201 (West 1967). That statutory provision was repealed shortly after this Court’s previous ruling. It was replaced by provisions of the “Support and Visitation Enforcement Act” which was passed in 1982 and became effective July 1, 1983. See Mich.Comp.Laws Ann. §§ 552.633, 552.635, 552.637 (West Supp.1985). Because the statutory framework has changed since Sword was decided, the Michigan appellate courts may no longer feel bound by that decision.

Further, the fact that plaintiffs did not attempt an appeal within the Michigan state courts suggests that abstention is appropriate. Unlike Sevier, there is no evidence in this case that any plaintiffs have attempted to appeal their contempt citations through the state appellate court system. In Sevier, the court found that “extraordinary circumstances” did not exist when plaintiff appealed but was not heard on the merits. It is difficult for this Court to rule that “extraordinary circumstances” are presented by this case, when no state appeals were sought.

In summary, this Court is unable to conclude that the facts of this case are any more “extraordinary” than the facts of Sevier. If anything, because plaintiffs did not even attempt a state appeal, they are less compelling. Accordingly, Sevier directs this Court to abstain from reaching the merits of this case.

Admittedly, the result reached here seems a harsh one. Plaintiffs are in federal court asking for relief because they have been denied the right to the assistance of counsel before being incarcerated on contempt charges. This federal court refuses to hear their claim telling them instead that, despite the fact that they cannot afford representation, they must appeal their case through the state appellate courts.

Yet the result the Court reaches is required if the federal courts are to honor the principles of comity and federalism that underlie the Younger doctrine. Under that doctrine, the federal courts are not to interfere with state court processes unless the state appellate courts have exhibited an unwillingness to enforce plaintiff’s federal constitutional rights. Sevier, 742 F.2d at 271; Parker, 626 F.2d at 10. This Court can only assume that the Michigan courts will correctly apply the constitutional principles set forth in Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), if plaintiffs appeal their claims in those courts. Especially in a case like this, where plaintiffs ask a federal court to grant equitable relief that will affect the day-to-day conduct of state trial courts and possibly require ongoing supervision of state trial court judges, a federal court should not interfere when less intrusive avenues of relief are available. Parker, 626 F.2d at 7, 8. Plaintiffs have not carried their burden of proving that the state appellate process will not provide such an avenue in this case. Accordingly, the Court hereby grants defendants’ motion to dismiss.

      . See Cobb v. Green, 574 F.Supp. 256 (W.D.Mich.1983).

      . Anthony Hufnagel, Sheriff of Clinton County, was also named as a defendant but was dismissed by order of this Court on April 11, 1983.

      . After the preliminary injunction was issued on behalf of plaintiff Cobb, the Court heard arguments on class certification. On November 14, 1983, the Court certified a class comprised of “all individuals who have been or will be summoned to appear in the Clinton County Circuit Court or other Michigan Circuit Courts to' answer charges that they are in contempt of court by reason of failing to pay child support, and who face incarceration thereof, and who are unable to afford to retain counsel to represent them in such proceedings." Shortly thereafter, plaintiff amended his complaint to include claims of five other class members who were receiving public assistance from the State of Michigan, who were jailed for contempt of a state court’s support order, and who were not advised of any right to be represented by counsel at their contempt hearings. On July 18, 1984, the Court granted leave to amend the complaint to include Ygnacio Bermudez as an additional plaintiff and Judge Robert Holmes Bell and Susan Howard as additional defendants.

      . Besides challenging the civil contempt proceedings, plaintiff Sevier also challenged the criminal proceedings which had been instigated against him simultaneously with the civil proceedings. Because plaintiffs in this case have not alleged that they are the subjects of criminal proceedings, the portions of the Sevier opinion dealing with the Massiah and Miranda doctrines are not relevant to this case.