author: HILLMAN, District Judge.

text:
    FIRST SECURITY BANK, Plaintiff, v. Ronald H. McMILLAN and William Kellogg, jointly and severally, Defendants.
    No. G84-1332CA1.
    United States District Court, W.D. Michigan, S.D.
    Dec. 20, 1985.

      McShane & Bowie by John R. Grant, Grand Rapids, Mich., for plaintiff.
    Barron, Serafín & Devlin by Robert Dev-lin, Houston, Tex., Linsey, Strain & Wors-fold by Patrick D. Murphy, Grand Rapids, Mich., for defendants.
   OPINION RE MOTIONS TO DISMISS

HILLMAN, District Judge.

Plaintiff, First Security Bank, brings this diversity action against defendants, Ronald H. McMillan and William Kellogg, to recover damages for breach of two guaranty contracts. Currently before the court are defendants’ motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(2) for lack of personal jurisdiction or, in the alternative, to transfer this action to the United States District Court for the Southern District of Texas.

FACTUAL BACKGROUND

Plaintiff’s action arises from several guaranty contracts that defendants signed in 1980. On March 7, 1980, defendants signed contracts guaranteeing “all existing and future indebtedness” owed to plaintiff by Quality Tape, a Michigan partnership located at 134 Weston, S.W., in Grand Rapids, Michigan. On March 10, 1980, defendant Ronald McMillan signed a second guaranty contract for “all existing and future indebtedness” owed to plaintiff by Mary McMillan. Through an affidavit signed by its president, Harry R. Larkin, plaintiff alleges that defendants signed the Quality Tape guaranty contract at plaintiff’s offices in Ionia, Michigan. Defendant Kellogg does not dispute this allegation. Defendant McMillan, however, states by affidavit that he signed the Quality Tape guaranty contract in Houston, Texas. The parties have failed to discuss whether defendant McMillan signed the second guaranty contract on March 10, 1980, in Michigan or Texas.

Plaintiff asserts that Quality Tape and Mary McMillan have defaulted on loans that defendants’ 1980 guaranty contracts cover. Plaintiff, therefore, now seeks to recover those outstanding loans from defendants on the basis of defendants’ 1980 guaranty contracts.

DISCUSSION

Defendants move to dismiss under Fed.R.Civ.P. 12(b)(2) for lack of personal jurisdiction. Plaintiff carries the burden of establishing personal jurisdiction over defendants. Welsh v. Gibbs, 631 F.2d 436, 438 (6th Cir.1980). Plaintiff, however, must only show a prima facie case of personal jurisdiction over defendants where, as here, the court decides the jurisdictional issue solely on the basis of written materials. Id. Furthermore, the court should consider such documents concerning jurisdictional facts in the light most favorable to plaintiff. Id. at 439; Bialek v. Racal-Milgo, Inc., 545 F.Supp. 25, 33 (S.D.N.Y.1982).

Under Fed.R.Civ.P. 4(e), a federal court has personal jurisdiction over a nonresident defendant to the extent allowed by the long-arm statute of the forum state. In addition, the due process clause of the fourteenth amendment to the United States Constitution limits a court’s assertion of in 'personam, jurisdiction over a nonresident defendant. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S.Ct. 559, 564, 62 L.Ed.2d 490 (1980); International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Accordingly, a federal court must undertake a two-party inquiry when presented with a motion to dismiss for lack of personal jurisdiction. First, the court must consider whether personal jurisdiction exists in accordance with the statutory requirements of the forum state. Second, the court must consider whether the “exercise of personal jurisdiction is consistent with due process.” Scullin Steel Co. v. National Railway Utilization Corp., 676 F.2d 309, 312 (8th Cir.1982).

■ In this case, the applicable Michigan long-arm statute is M.C.L.A. § 600.705(1). Section 600.705(1) specifies the following:

“The existence of any of the following relationships between an individual or his agent and the state shall constitute a sufficient basis of jurisdiction to enable a court of record, of this state to exercise limited personal jurisdiction over the individual and to enable the court to render personal judgments against the individual or his representative arising out of an act which creates any of the following relationships:
(1) The transaction of any business within the state.”

Michigan courts have interpreted section 600.705(1) to expand a court’s in personam jurisdiction over a nonresident defendant to the extent permissible under the due process clause of the fourteenth amendment to the Constitution. Sifers v. Horen, 385 Mich.App. 195, 188 N.W.2d 623 (1971); City Suburban Agency, Inc. v. Dade Helicopter Services, Inc., 141 Mich.App. 241, 366 N.W.2d 259 (1985). See also Hertzberg & Noveck v. Spoon, 681 F.2d 474, 478 (6th Cir.1982); American Business Overseas v. Methods Research Products, Inc., 593 F.Supp. 1, 3 (W.D.MI.1983); First National Monetary Corp. v. Chesney, 514 F.Supp. 649, 651-52 (E.D.MI.1980). Consequently, with regard to defendants’ motions to dismiss for lack of personal jurisdiction, this court must only determine whether assertion of in personam jurisdiction over these defendants comports with due process.

The United States Supreme Court in a series of cases has outlined the due process limitations to in personam jurisdiction over nonresident defendants. In International Shoe Co., 326 U.S. at 316, 66 S.Ct. at 158, the Court held that an exercise of in personam jurisdiction over a nonresident defendant not present within the forum state requires that the nonresident defendant “have certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” The Court in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. at 292, 100 S.Ct. at 564, explained that the concept of “minimum contacts” (1) “protects the defendant against the burdens of litigating in a distant or inconvenient forum” and (2) “ensure[s] that the States, through their courts, do not reach beyond the limits imposed on them by their status as coequal sovereigns in a federal system.”

From these principles, the Court of Appeals for the Sixth Circuit has adopted a three-step analysis to determine whether an exercise of personal jurisdiction, pursuant to a state long-arm statute, complies with due process:

“First, the defendant must purposefully avail himself of the privilege of acting in the forum state or causing a consequence in the forum state. Second, the cause of action must arise from defendant’s activities there. Finally, the acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum to make the exercise of jurisdiction over the defendant reasonable.”

Southern Machine Company v. Mohasco Industries, Inc., 401 F.2d 374, 381 (6th Cir.1968). The Sixth Circuit has cautioned that the first two elements of the test simply involve a search for the specific types of contacts which have been held to be essential to the maintenance of jurisdiction. The third element must be applied with the flexibility of the underlying International Shoe test and demands “an appraisal of the overall circumstances of each case if jurisdiction is to be found.” In Flight Devices Corp. v. Van Dusen Air, Inc., 466 F.2d 220, 226 (6th Cir.1972).

Several courts have considered the question presented in this case — whether assertion of in personam jurisdiction over nonresident guarantors satisfies the requirements of the due process clause. See, e.g., Casad Jurisdiction in Civil Actions ¶ 4.02[l][a][xi]. For example, the Court of Appeals for the Sixth Circuit in National Can Corp. v. K Beverage Co., 674 F.2d 1134, 1138 (6th Cir.1982), found that the lower court sitting in Kentucky had in personam jurisdiction over five nonresident guarantors. In National Can, the guarantors executed the guaranty contracts in North Dakota and mailed them to plaintiff in Illinois. Three of the guarantors were shareholders in the debtor corporation which had its principal place of business in Kentucky. The remaining two guarantors were not shareholders but had “propriety interest in the [debtor corporation] through the marital property laws.” The Court of Appeals in National Can held that the guarantors’ economic interest in the debtor corporation furnished the necessary minimum contacts with Kentucky, the forum state. Id. at 1137.

In Lazzaro v. Charlevoix Lakes, 108 Mich.App. 120, 310 N.W.2d 295 (1981), the Michigan State Court of Appeals found that the Michigan long-arm statute, M.C.L.A. § 600.705(1), allowed application of in personam jurisdiction over four nonresident guarantors. In Charlevoix Lakes, the plaintiff was a Massachusetts Business Trust and the underlying debtor was an Ohio joint venture. Two of the guarantors were the prime movers behind the joint venture formed to develop a real estate project in Michigan. The two remaining guarantors were spouses of the other guarantors. The guarantors signed the guaranty contracts in Ohio. Given those facts, the court held that:

“the acts of the individual defendants in guaranteeing the loan agreement by which the purchase, development and security of the condominium project in Michigan was made possible and out of which this action arises [are] within the scope of being ‘transaction of any business within the state,’ so as to confer limited personal jurisdiction pursuant to M.C.L. § 600.705(1).”

Id. at 310 N.W.2d 295, 297.

In light of the three criteria outlined in Southern Machine and the reasoning in National Can and Charlevoix Lakes, this court clearly has in personam jurisdiction over defendants with regard to plaintiff’s claim to recover on the Quality Tape guaranty contracts. First, defendants availed themselves of the privilege of transacting business in the State of Michigan. The defendants voluntarily signed the guaranty contracts on March 7, 1980. Regardless of the place of execution, those guaranties were intended to assist a Michigan business — Quality Tape. In fact, defendant Kellogg was an officer of Quality Tape at the time he signed the guaranty contract. Furthermore, plaintiff’s cause of action arises from the guaranty contracts, which provide the connection between defendants and the State of Michigan. Finally, the Quality Tape guaranty contracts have a substantial enough connection with Michigan to make the exercise of in -personam jurisdiction over defendants reasonable. Defendants knew that their guaranties would allow Quality Tape to continue business operations in Michigan. They guaranteed repayment of loans made by a Michigan bank to a Michigan business. Exercise of in personam jurisdiction over these defendants is neither unfair nor unreasonable. Plaintiff has established a prima fa-cie showing that this court has limited in personam jurisdiction over defendants with regard to plaintiff’s claims under the Quality Tape guaranty contracts.

Consequently, defendants’ motions to dismiss Count I of plaintiff’s complaint for lack of personal jurisdiction is denied.

Defendant McMillan also moves to dismiss Count II of plaintiff’s complaint for lack of personal jurisdiction. In Count II, plaintiff seeks to recover on defendant Ronald McMillan’s guaranty contract for indebtedness owed to plaintiff by Mary McMillan. As with defendants’ motions to dismiss Count I, plaintiff must establish a prima facie showing that assertion of in personam jurisdiction over defendant McMillan with respect to the “Count II guaranty contract” would satisfy due process requirements.

Neither plaintiff nor defendant has submitted an affidavit concerning the Count II guaranty contract. Plaintiff has submitted the loan agreement between itself and Mary McMillan and the guaranty contract of defendant Ronald McMillan allegedly guaranteeing repayment of that loan. On April 5, 1980, plaintiff loaned Mary McMillan $15,000.00. On March 10,1980, defendant Ronald McMillan apparently signed the guaranty contract guaranteeing “payment when due ... of all existing and future indebtedness to the [plaintiff] of Mary McMillan.” Plaintiff has offered no showing whether defendant Ronald McMillan executed the Count II guaranty contract or whether the parties negotiated that guaranty contract in Texas or in Michigan. Although the loan to Mary McMillan appears to be for personal or household use, plaintiff has made no showing whether the loan was intended for use in Texas or Michigan. Furthermore, the loan agreement lists Houston, Texas, as Mary McMillan’s address.

Defendant McMillan may have availed himself of the privilege of transacting business in the State of Michigan by signing the Count II guaranty contract with plaintiff. In addition, plaintiff’s cause of action arises from that guaranty contract, which provides the connection between defendant and the forum state. Nonetheless, “courts [should] avoid resort to artificial guidelines which simplify decision making, but obscure the realities of the situation. The courts must consider each long-arm question in relation to traditional notions of fair play which mark the outer limits of due process.” In-Flight Devices Corp. v. Van Dusen Air, Inc., 466 F.2d 220, 236 (6th Cir.1972).

In this case, plaintiff has failed to demonstrate that the acts of defendant McMillan have a substantial enough connection with Michigan to make the exercise of in personam jurisdiction over the defendant reasonable. Plaintiff has not shown any facts that would indicate that defendant McMillan should have expected to be summoned into a Michigan court in a dispute concerning the Count II guaranty contract. See id. at 233. Additionally, plaintiff has not shown that the State of Michigan has any significant interest in resolving this contract dispute. Plaintiff has not shown that the loan to Mary McMillan was to be used in Michigan. See id. at 232 (explaining the importance of the forum state’s interest in resolving whether assertion of in 'personam jurisdiction would be reasonable). The guaranty agreement does not indicate that the money was due and payable in Michigan. See Hertzberg & Noveck v. Spoon, 681 F.2d 474, 479 (6th Cir.1982). On the basis of the current record, plaintiff has failed to make a prima facie showing that assertion of in personam jurisdiction over defendant McMillan with respect to Count II satisfies the due process clause of the fourteenth amendment.

Consequently, defendant McMillan’s motion to dismiss Count II of plaintiff’s complaint for lack of personal jurisdiction is granted.

MOTION TO TRANSFER

In addition to their motions to dismiss for lack of personal jurisdiction, defendants move to transfer this action to the United States District Court for the Southern District of Texas. Defendants rely on 28 U.S.C. § 1404(a) to support their motions to transfer.

Section 1404(a) provides:
“For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.”

Section 1404(a) revises the common law principle of forum non conveniens. The Supreme Court has explained that this provision “embodies in an expanded version the common law doctrine of forum non conveniens, under which a court in appropriate circumstances may decline to exercise its jurisdiction in the interest of the ‘easy, expeditious, and inexpensive’ resolution of a controversy in another forum.” Burger King Corp. v. Rudzewicz, — U.S. -, 105 S.Ct. 2174, 2185 n. 20, 85 L.Ed.2d 528 (1985). District courts have “more discretion to transfer under § 1404(a) than they had to dismiss on grounds of forum non conveniens.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 253, 102 S.Ct. 252, 264, 70 L.Ed.2d 419 (1981). Nonetheless, defendants carry the burden to show the need for transfer. “The Court must give foremost consideration to the plaintiff’s choice of forum, and the balance must weigh ‘strongly in favor of a transfer’ before the Court should grant a § 1404(a) motion.” Priess v. Fisherfolk, 535 F.Supp. 1271, 1279 (S.D.OH.1982). See also Nicol v. Koscinski, 188 F.2d 537 (6th Cir.1951).

Defendants in this case have not offered any specific justifications in support of their motion to transfer venue. The only apparent factor in favor of transfer is defendants’ residences in Texas. Standing alone that factor is insufficient to justify transferring this civil action to another district court pursuant to section 1404(a).

Consequently, defendants’ motions to transfer are denied.

SUMMARY

Defendants’ motions to dismiss Count I of plaintiff’s complaint pursuant to Fed.R. Civ.P. 12(b)(2) for lack of personal jurisdiction are denied.

Defendant Ronald McMillan’s motion to dismiss Count II of plaintiff’s complaint pursuant to Fed.R.Civ.P. 12(b)(2) for lack of personal jurisdiction is granted.

Defendants’ motions to transfer this action under 28 U.S.C. § 1404(a) are denied.

      . In his answer to plaintiffs complaint, defendant McMillan asserts the following:
      "This Defendant does not respond to Count II of the Plaintiff's Original Complaint, [which concerns the March 10, 1980 guaranty contract for plaintiffs loan to Mary McMillan,] as he has been lead [sic] to believe that Plaintiff has waived the allegations contained within said Count II.”
      Defendant McMillan’s motion to dismiss or, in the alternative, to transfer fails to distinguish between Count I and Count II of plaintiffs complaint. Furthermore, plaintiff has not notified the court that it has voluntarily dismissed Count II. Accordingly, this court must consider defendant McMillan’s motion with regard to Count I and Count II of plaintiffs complaint.

      . But see Hapner v. Rolf Brauchli, Inc., 404 Mich. 160, 273 N.W.2d 822 (1978) (Levin, J„ opinion for remand) (disagreeing with the contention that the Michigan long-arm statute expands limited personal jurisdiction to the fullest extent of due process).

      . Although recognizing that the Michigan Supreme Court had interpreted the Michigan long-arm statute as coextensive with the due process clause, the court in Charlevoix Lakes found that the due process clause prevented assertion of in personam jurisdiction over two of the guarantors. That interpretation of the scope of the due process clause is illogical given the court's finding of in personam jurisdiction within the Michigan long-arm statute. A state’s long-arm statute cannot expand the reach of in personam jurisdiction beyond the constitutional limits of the due process clause. See Richardson & Mayes, Jurisdiction, 1982 Annual Survey of Michigan Law, 29 Wayne L.Rev. 357, 358-59 (1983). In any event, the scope of due process limitations upon in personam jurisdiction over nonresident defendants is a matter of federal law. And state court decisions on such matters of federal law are not binding on federal courts. Aftanase v. Economy Baler Co., 343 F.2d 187, 193 (8th Cir.1965).

      . See Stabler v. New York Times Co., 569 F.Supp. 1131, 1137-38 (S.D.TX 1983) (denying motion to transfer to district court of defendant’s home state).


source: Caselaw Access Project

author: GETZENDANNER, District Judge:

license: Public Domain

text:
    Robert GRANT, Plaintiff, v. BURLINGTON INDUSTRIES, et al., Defendants.
    No. 85 C 06391.
    United States District Court, N.D. Illinois, E.D.
    Dec. 20, 1985.
    Cornfield & Feldman, Chicago, Ill., for plaintiff.
    Carmell, Charone, Widmer & Mathews, Ltd., Chicago, Ill., for defendants.
   MEMORANDUM OPINION AND ORDER

GETZENDANNER, District Judge:

Plaintiff Robert Grant is a member of the local union formally named the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America Local 710 (“Local 710”). Grant was employed by Employer’s Resources, Inc. (“Employer’s”), and in such capacity performed work at Burlington Industries (“Burlington”) until certain events arose which resulted in Grant’s dismissal. Local 710 is affiliated with a body known as Joint Council 25, Teamsters, Chauffeurs, Ware-housemen and Helpers of America (“Joint Council”). Joint Council is an intermediary union body having the responsibility of reviewing the conduct of the officers and agents of Local 710. Grant has brought this action pursuant to Section 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185, and 28 U.S.C. §§ 1331, 1337 against Employer’s, Burlington, Local 710, and Joint Council. Against Employer’s and Burlington, Grant charges that the manner in which he was discharged from employment violated the terms of the collective bargaining agreement existing between Local 710 and those two defendants. Grant charges that Local 710 and Joint Council violated the duty of fair representation owed to Grant by not properly handling Grant’s grievance filed in protest of his discharge. Presently before the court is Joint Council’s motion to dismiss Grant’s claim against it for failure to state a claim upon which relief can be granted. Specifically, Joint Council maintains that since it is not a labor organization, nor Grant’s collective bargaining representative, nor a party to any collective bargaining agreement with Grant’s employers, it does not owe Grant a duty of fair representation or, for that matter, a federally-based labor contract obligation. Joint Council has also asked the court to award it attorney’s fees and costs incurred in connection with this action on the grounds that Grant’s claim against it was brought unreasonably or in bad faith. For the reasons stated below, I agree that Grant does not state a claim against Joint Council under the facts alleged in the complaint, but decline to impose a sanction of fees and costs against Grant.

The complaint alleges the following further facts. Local 710, Grant’s union, is a party to a collective bargaining agreement with Employer’s and Burlington covering employees performing functions for Burlington at its Oak Lawn facility. Grant is one of the employees covered by the agreement. On January 9, 1985, Grant was informed of his immediate termination from employment for allegedly refusing to follow a work instruction by an agent of Burlington on January 8, 1985. On January 10, 1985, Grant filed a grievance with Local 710 protesting his discharge as lacking just cause. On or about January 14, 1985, Grant received a notice from Local 710 and Alex Kern, a business agent employed by Local 710 to represent employees of Employer’s at Burlington like Grant with respect to filed grievances, that a hearing would be held on his grievance before a joint Employer and Union Commit-, tee on January 30. The hearing was held as scheduled and after twenty minutes given to review Grant’s grievance, the joint Employer-Union Committee upheld Grant’s discharge. Grant then filed charges before Joint Council, claiming that the joint Employer-Union Committee failed to adequately and fairly consider Grant’s grievance. The Joint Council sustained the action of the Local 710 members of the joint Employer-Union Committee.

Discussion

In order for Grant to state a claim against Joint Council, he must establish either that Joint Council is a labor organization and party to a contract with Grant's employer, or that Joint Council owes Grant a duty of fair representation. If the former theory is true, then Section 301(a), which gives federal courts jurisdiction over “[sjuits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce” would provide Grant with a basis for his claim. If only the latter theory is true, then Sections 1331 and 1337, authorizing jurisdiction over claims involving federal laws, would provide jurisdiction. The relevant “law” in this latter case (the claim for unfair representation) would be 29 U.S.C. § 159(a). This statute, from which the duty of fair representation has been implied, describes the congressional grant of exclusive recognition accorded the labor organization selected by a majority of the employees in an appropriate bargaining unit. This duty imposes on the statutory representative an obligation to serve the interests of all bargaining unit émployees without hostility to any. See Steele v. Louisville & Nashville Railroad, 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944). Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). I address these two theories separately.

The Labor Organization Theory

Grant cannot predicate his claim on Section 301 because I find that Joint Council is not a labor organization within the meaning of the National Labor Relations Act (“NLRA”), and therefore it is not amenable to a suit for violation of a contract between an employer and labor organization. The NLRA defines “labor organization” as follows:

(5) The term “labor organization” means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.

29 U.S.C. § 152(5). As Joint Council correctly points out, in order for it to be a labor organization, it must be both an entity “in which employees participate” and exist for the purpose of dealing with employers concerning employee wages, hours or conditions of employment. The uncon-tradicted affidavit of Robert N. Meidel, Secretary-Treasurer of Joint Council, states clearly that neither of these two conditions is met: “Local unions affiliated with the International Union, not employees, participate in [Joint Council].” Meidel Aff. 114. Furthermore, Joint Council “does not represent employees for purposes of collective bargaining with employers.” Id. Finally, even if Joint Council were deemed a labor organization, it is in any event “not a party to any collective bargaining agreement with Burlington Industries, or Employer’s Resources, Inc....” Id. Therefore, Grant can state no claim against Joint Council based on the breach of a collective bargaining agreement. In short, the labor organization theory for a claim against Joint Council is unavailing.

The Fair Representation Theory

The duty of fair representation arises from a labor organization’s exclusive status as the sole representative of employees who have, by majority vote, selected it. Ford Motor Co. v. Huffman, 345 U.S. 330, 337, 73 S.Ct. 681, 685, 97 L.Ed. 1048 (1952). In order for an entity to be subject to the duty of fair representation, it must therefore enjoy this exclusive representative status. Kuhn v. National Association of Letter Carriers, Branch 5, 528 F.2d 767, 770 (8th Cir.1976). When an entity is neither the bargaining representative for an employee nor a party to the collective bargaining agreement under which the employee receives her or his rights then it clearly cannot serve as the employee’s exclusive representative and should not be subject to the fair representation duty. Baker v. Newspaper and Graphic Communications Union, Local 6, 628 F.2d 156 (D.C.Cir.1980) (fair representation action against international union could not be brought when international was neither bargaining representative nor party to collective bargaining agreement); Teamsters Local Union No. 30 v. Helms Express, Inc., 591 F.2d 211, 217 (3d Cir.), cert. denied, 444 U.S. 837, 100 S.Ct. 74, 62 L.Ed.2d 48 (1979) (similar); Neiger v. Sheet Metal Workers International Association, 470 F.Supp. 622, 630 (W.D.Mo.1979) (similar). This rule applies with equal force to a council of unions, the entity involved in this case. See Teamsters Local Union No. 30 v. Helms Express, Inc., 591 F.2d at 217 (conference of local unions not party to collective bargaining agreement and not statutory representative of any employee; no fair representation claim could be stated against it).

The facts here bring this case within the rule established by the preceding authorities. As stated before, the Meidel affidavit states that Joint Council was neither a bargaining representative for Grant nor a party to the bargaining agreement under which Grant claims his rights. The complaint never even alleges that Joint Council is a bargaining representative for Grant, let alone the exclusive one. The only bargaining representative for Grant referred to in the complaint is Local 710, and because of the exclusive status accorded the Local by 29 U.S.C. § 159(a), it can be Grant’s only bargaining representative for the job dispute at issue here. Local 710 is therefore the only body which should be charged with the duty of fair representation; a claim for the breach of that duty can be stated only against it.

Motion for Sanctions

Despite this conclusion, the court does not believe that the case law is so entirely unambiguous that plaintiff should be taxed with costs and attorney’s fees under Fed.R.Civ.P. 11. There does seem to be some warrant in the law for the position Grant takes in his memorandum opposing the motion to dismiss. Grant’s position runs as follows. First, Grant argues that Joint Council has the power under the relevant bylaws to remedy his claim. Second, under Clayton v. United Auto Workers, 451 U.S. 679, 101 S.Ct. 2088, 68 L.Ed.2d 538 (1981), a condition precedent to a fair representation suit against a local union is the exhaustion of those internal union procedures capable of remedying a plaintiff’s claim. Therefore, Grant concludes, if the Joint Council administers those internal procedures in an unfair manner, it, along with the local union, can be charged with breach of the duty of fair representation. In effect, Grant is asking this court to hold that whenever an internal union procedure that must be exhausted is improperly administered, the body responsible for administering that procedure is subject to the duty of fair representation even if that body is not the exclusive bargaining representative for the employees and was not a party to any bargaining agreement. Grant cites the court no cases squarely holding this. The strongest language this court has found suggesting the possibility of this rule is in Gutierrez v. Puritan Bakery, Inc., 104 L.R.R.M. (BNA) 2356 (C.D.Cal.1980). In Gutierrez, the court held that the duty of fair representation did not apply to a joint council of local unions because

[i]n order for such a duty to arise, plaintiff must have requested a hearing before the Joint Council concerning his grievance. However, it is undisputed that plaintiff never went beyond the first step of the grievance procedure as set out in the collective bargaining agreement and the local union by-laws.

104 L.R.R.M. (BNA) at 2358. From this langugage, it could be reasonably inferred that the Gutierrez court would have found the duty to attach if the plaintiff there had exhausted the internal procedures. However, the court did not state what, if any, other conditions must be met for the duty to attach. Because of the emphasis that other courts have uniformly placed on requiring the defendant to be the exclusive bargaining agent, I find it difficult to believe that Gutierrez, by its silence on the issue, meant to hold that the defendant need not be the bargaining representative for the employee. Indeed, one noted treatise on the subject regards exhaustion and exclusive representative status as dual conditions for a duty of fair representation suit. See C. Morris, The Developing Labor Law, at 1305 (1983) (“Nor may a council of unions be liable for breach of the duty if it was not the bargaining representative and the plaintiff-employees had not sought the council’s action on their behalf.” (emphasis added)). This conclusion has sound policy implications. As Joint Council points out, a holding that a body which administers an internal union remedy is, because of that administration, amenable to a fair representation suit, would have the effect of discouraging those bodies from providing such remedies for fear of being subject to litigation. Of course, the inadequacy with which Joint Council administers its remedial procedures may be a factor in favor of Local 710's liability on a fair representation theory if Local 710 can be charged with unfairly enlisting the use of Joint Council. But that issue is not before the court.

Another reasonable, but ultimately unavailing basis for Grant’s inclusion of Joint Council as a defendant could be rooted in an agency theory. Under that theory, when a body, such as Joint Council, exercises principal-like authority over the local union so that the body directs the local, gets the local to act for it, and supplants all the authority that would otherwise be vested in the local, then that body can be held liable in a fair representation suit. See, e.g., Alexander v. International Union of Operating Engineers, 624 F.2d 1235, 1241 (5th Cir.1980); Snipes v. Douglas Aircraft Co., 114 L.R.R.M. (BNA) 2512 (C.D.Cal.1983). Generously construing the complaint, it is not unreasonable to read the complaint as supporting this theory. Paragraph 16 of the complaint charges- both Local 710 and Joint Council with the same omissions: arbitrarily failing to investigate plaintiff’s grievance and arbitrarily upholding plaintiff’s discharge. Grant’s charging both parties with the same misconduct suggests that Grant may have had some reason to believe that Joint Council somehow controlled Local 710.

As it turns out, however, there is no evidence to support this claim and Joint Council has supplied the court with an un-contradicted affidavit affirming that Joint Council played no role in Local 710’s actions in this case. See Affidavit of Robert N. Meidel II4 (“Joint Council ... did not recieve or participate in any grievance filed by Brother Grant concerning his discharge which is the subject of the lawsuit.”). There being no genuine issue of material fact whether Joint Council participated at all, let alone controlled Local 710’s actions, this agency theory of liability cannot withstand Joint Council’s motion to dismiss, which motion is construed as a motion for summary judgment because of the affidavit supplied to the court. See Fed.R.Civ.P. 12.

Since Joint Council has not established any sort of bad faith in Grant’s prosecution of this suit, the only possible basis for the sanction of fees and costs would be Fed.R. Civ.P. ll’s proscription of complaints which are not “warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.” I find that the two theories just discussed were not frivolous and that there was some warrant for them in existing law. The exhaustion argument had some support in Gutierrez and the agency theory had support in the law, but was clearly unavailable in fact in this case. Therefore, an imposition of sanctions in this case would be inappropriate.

Conclusion

Joint Council’s motion to dismiss for failure to state a claim is granted. Joint Council’s motion for attorney’s fees and costs is denied.

It is so ordered.


author: FRANK A. KAUFMAN, Chief Judge.

text:
    UNITED STATES of America v. The AMERICAN DRUGGISTS’ INSURANCE COMPANY.
    Civ. No. K-85-955.
    United States District Court, D. Maryland.
    Dec. 23, 1985.

      Christopher K. Barnes, U.S. Atty., Nicholas J. Pantel, Asst. U.S. Atty., Robert W. Kern, Robin L. Greenhouse and Will McLeod, Washington, D.C., for plaintiff.
    Lorraine K. Phillips, Cincinnati, Ohio and Danny B. O’Connor, Smith, Somerville & Case, Baltimore, Md., for defendant.
   FRANK A. KAUFMAN, Chief Judge.

Hi-Lo Industries, Inc. (“Hi-Lo”) was the prime contractor with respect to two government construction projects at Fort Belvoir, Virginia. Pursuant to 40. U.S.C. § 270a, American Druggists’ Insurance Company (“ADI”) executed performance bonds as surety for Hi-Lo and its President in connection with those projects.

Herein, the United States seeks to recover from ADI, as surety, withholding and FICA taxes which Hi-Lo failed to pay in connection with the Fort Belvoir projects. The within action was originally filed in the United States District Court for the Southern District of Ohio. In that Court, ADI filed motions to dismiss for lack of subject matter jurisdiction, improper venue, and lack of joinder of needed parties. In the alternative, ADI sought a stay or transfer of the action. On February 26, 1985, Judge Spiegel, of the Southern District of Ohio, transferred this case to this Court without ruling on ADI’s other pending motions.

Following that transfer, during a hearing in this Court in connection with each and all of ADI’s said motions, counsel for ADI agreed that its motion to dismiss for lack of venue was mooted by the transfer of the within case to this Court. In any event, venue in this Court is appropriate under 28 U.S.C. § 1396 since the taxpayer, Hi-Lo, has its principal place of business in this District.

In its motion to dismiss for lack of joinder, ADI contended that Hi-Lo and its President were indispensable parties under Federal Civil Rule 19. That contention may not prevail because since a surety’s liability is independent of that of the principal, the principal is therefore not an indispensable party. See United States v. Peerless Insurance Company, 374 F.2d 942 (4th Cir.1967); Jardine, Stephenson, Blewett & Weaver v. United States Fidelity & Guaranty Company, 91 F.R.D. 284, 287-88 (D.Mont.1981); see also Horton Company v. International Telephone & Telegraph Corporation, 85 F.R.D. 369 (W.D.Pa.1980). In any event, “dismissal [for lack of joinder] is warranted only when the defect cannot be cured.” 5 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 1359 at 628 (1969). Hi-Lo has its principal place of business in Maryland and its President is a Maryland resident. Both are thus subject to service of process in this District and may be joined by ADI as third-party defendants in the within litigation.

ADI’s motion to stay is based on pending litigation between ADI and the United States in the United States Court of Claims. Although that litigation is factually related to the within case, the outcome of that case will have no effect on the within litigation; nor will the outcome of the within case affect ADI’s claims in the Court of Claims. Thus, ADI’s motions to dismiss for lack of joinder or for a stay of this proceeding may not prevail and will be denied.

Plaintiff alleges subject matter jurisdiction under 28 U.S.C. § 1340 and alternatively under 28 U.S.C. § 1345. Plaintiffs primary position is that although this is in form a suit against a surety on a performance bond, it is in substance a suit for the collection of taxes brought pursuant to 26 U.S.C. §§ 7401 and 7402, and 28 U.S.C. § 1340. ADI argues that because the claim in this suit is based upon rights arising from a performance bond, it is a contract action—not a suit for the collection of taxes—and that sections 7401, 7402 and 1340 do not provide a basis for subject matter jurisdiction.

26 U.S.C. § 7401 grants authority to certain officers within the executive branch of the federal government to bring an action for the collection of taxes and 26 U.S.C. § 7402(a) and (f) confers jurisdiction upon the district courts of the United States to entertain such actions “as may be necessary or appropriate for the enforcement of the internal revenue laws.” 28 U.S.C. § 1340 provides that “[t]he district courts shall have original jurisdiction of any civil action arising under any Act of Congress providing for internal revenue _” The question arises as to whether an action on a performance bond brought against the surety to enable the United States to collect federal taxes owed by the principal constitutes the type of internal revenue action covered by sections 7401 and 7402, or 1340.

In United States v. Hill, 123 U.S. 681, 8 S.Ct. 308, 31 L.Ed. 275 (1887), construing an earlier statute, Chief Justice Waite wrote:

the term “revenue law,” when used in connection with the jurisdiction of the Courts of the United States, means ... a law providing in terms for revenue; that is to say, a law which is directly traceable to the power granted to Congress by § 8, Art. I, of the Constitution, “to lay and collect taxes, duties, imposts, and excises.”

Id. at 686, 8 S.Ct. 311.

The jurisdiction [granted by section 1340] embraces all acts directly attributable to the power granted to Congress by the Constitution to lay and collect taxes, duties, imposts, and excises, but this grant of jurisdiction does not extend to matters arising under state tax laws. It includes actions by the United States to collect taxes.

13B C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure: Jurisdiction § 3580 at 277 (2d ed. 1984) (footnotes omitted).

The Miller Act, 40 U.S.C. §§ 270a-270d, requires the prime contractor on a government contract to provide, inter alia, “[a] performance bond with a surety ... for the protection of the United States.” 40 U.S.C. § 270a(a)(l). Section 270a further requires that the performance bond provide coverage for taxes owed by the prime contractor and authorizes the United States to sue on the bond for such taxes:

(d) Every performance bond required under this section shall specifically provide coverage for taxes imposed by the United States which are collected, deducted, or withheld from wages paid by the contractor in carrying out the contract with respect to which such bond is furnished. However, the United States shall give the surety or sureties on such bond written notice, with respect to any such unpaid taxes attributable to any period, within ninety days after the date when such contractor files a return for such period, except that no such notice shall be given more than one hundred and eighty days from the date when a return for the period was required to be filed under the Internal Revenue Code of 1954. No suit on such bond for such taxes shall be commenced by the United States unless notice is given as provided in the preceding sentence, and no such suit shall be commenced after the expiration of one year after the day on which such notice is given.

40 U.S.C. § 270a(d).

Subsection d was adopted as part of the Federal Tax Lien Act of 1966, Pub.L. No. 89-719, § 105(b), 80 Stat. 1125, 1139 (1966). Its purpose was to protect the government’s revenues by permitting the United States to sue on a performance bond for such taxes:

[SJureties can protect themselves against any losses attributable to withholding taxes by including this risk of liability in establishing their premiums, and lenders by their including the amounts in their loans and taking adequate security. Where they do so, losses now borne by the Government will fall (as it should) on the employers in the form of a larger bonding, or other fee or cost they must pay. Since the withholding taxes are, in true character, a part of the wages, it seems only appropriate that this cost be borne by the employers in the same manner as is true of the net wage costs. Because of this, your committee has concluded that, in the case of a contractor having a public works contract with the Federal Government, it is appropriate that the performance bond required by the Government specifically provide coverage for the withholding taxes payable by the contractor in carrying out the contract. The bill amends the Miller Act to achieve this result.
Under the bill, a surety is obligated to pay the withholding taxes only if the Government gives him a written notice of the contractor’s failure to pay the taxes. Separate notices are required for each taxable period. The Government must give the surety notice of a contractor’s failure to pay the withholding taxes within 90 days after the contractor files his return, or, if the contractor fails to file this return, files it late, or obtains an extension of time for filing, the Government must in any event give the surety this notice within 180 days of the time the return was first required to be filed. In addition, the Government, if it is to bring suit for the failure on the part of the surety to pay the withholding taxes, must do so within 1 year of the time the notice is given to the surety of the unpaid tax liability.

S.Rep. No. 1708, 89th Cong., 2d Sess. (1966), reprinted in 1966 U.S.Code Cong. & Ad.News 3722, 3744-45.

The Federal Tax Lien Act “was the first comprehensive revision and modernization of the provisions of the internal revenue laws concerned with the relationship of Federal Tax liens to the interests of other creditors.” Id. at 3722. While neither the statute nor the legislative history expressly indicates that the Act was adopted pursuant to Congress’ taxing powers, a conclusion that such was the case is implicit in the title and nature of the Act. Furthermore, the legislative history suggests that Congress saw an action of the type brought herein as being a way for the United States to collect taxes owed to it by the principal contractor. Thus, while this Court has not been referred to and has no knowledge of any case authority so holding, there seems little question but that subject matter jurisdiction herein is conferred by sections 7401, 7402 and 1340.

Alternatively, plaintiff’s assertions of jurisdiction under 28 U.S.C. § 1345 would also appear to be sound. That section’s grant of subject matter jurisdiction is very broad, and provides:

Except as otherwise provided by Act of Congress, the district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States, or by any agency or officer thereof expressly authorized to sue by Act of Congress.

That statute is, in effect, a safety net. “Although other special jurisdictional provisions also may give the district court jurisdiction over some cases brought by the United States, the government need not have specific statutory authorization for a particular action inasmuch as general jurisdiction is conferred by Section 1345.” 14 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure: Jurisdiction § 3651 at 153 (2d ed. 1985) (footnotes omitted).

ADI seeks to avoid application of section 1345 by arguing that under 28 U.S.C. § 1346, jurisdiction over the within case lies in the Court of Claims, not the District Court. But that argument fails because, by its own terms, section 1346 applies to actions “against the United States” (emphasis added). Nothing in section 1346 places any limitations on a District Court’s jurisdiction over claims brought by the United States under section 1345.

Section 1346(c) provides that jurisdiction under section 1346 extends to “any set-off, counterclaim, or other claim or demand whatever on the part of the United States against any plaintiff commencing an action under this section.” 28 U.S.C. § 1503 grants the Court of Claims jurisdiction over counterclaims and set-offs brought by the United States in an action against it. The United States is not barred from bringing such a counterclaim because it has previously filed an action in district court, asserting the same claims. Universal Fiberglass Corporation v. United States, 537 F.2d 393, 399, 210 Ct.Cl. 206 (1975). Thus, while the United States seemingly could have filed a counterclaim in the Court of Claims action brought by ADI, seeking the taxes the United States seeks in the within litigation, the question arises as to whether the United States was required to do so.

Where a counterclaim is compulsory, Court of Claims Rule 13(a) requires that it be pleaded in the party’s answer. In United States v. Eastport Steamship Corporation, 255 F.2d 795 (2d Cir.1958), Judge Waterman held that where the United States failed to plead a compulsory counterclaim in a Court of Claims action, it could not subsequently bring suit on that cause of action. See id. at 801-06. However, Court of Claims Rule 13(a) also provides that “the answer need not state the claim if at the time the action was commenced the claim was the subject of another pending action.” That language is almost identical to that of Federal Civil Rule 13(a)(1), under which the “defendant need not assert any counterclaim that already is before another federal court or before a state court at the time plaintiff institutes his action.” 6 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 1411 at 58 (1971). Federal Civil Rule 13(a)(1) “is not mandatory; it merely provides defendant with the option of continuing his prior action rather than advancing it as a counterclaim in the second action without fear of it being barred by res judicata if the second action results in a judgment before the claim has been adjudicated in the first action.” Id. at 59.

The within action was filed on October 25, 1984. ADI filed its action in the Court of Claims on December 5, 1984. Accordingly, the United States was not required to bring the within action as a counterclaim in the Court of Claims, and its failure to do so does not bar the within case from going forward in this Court.

In summary, because subject matter jurisdiction exists in the within case under both 28 U.S.C. § 1340 and § 1345, ADI’s motion to dismiss for lack of subject matter jurisdiction will be denied.


author: FITZGERALD, Chief Judge.

text:
    UNITED STATES of America, Plaintiff, v. Donnie D. CAMPBELL, Defendant.
    No. A85-15 Cr.
    United States District Court, D. Alaska.
    Dec. 24, 1985.
    Decision Amended Jan. 24, 1986.

      Michael Spaan, U.S. Atty., James Swartz, Asst. U.S. Atty., Anchorage, Alaska, for plaintiff.
    Richard B. Collins, Anchorage, Alaska, for defendant.
   AMENDED OPINION

FITZGERALD, Chief Judge.

Defendant Donnie D. Campbell was arrested on January 22, 1985 and charged with possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (1982). Campbell moves to suppress about a pound of cocaine that was found in a search of his luggage, conducted pursuant to a search warrant at the Anchorage airport. He contends that his fourth amendment rights were violated by his initial questioning and detention, as well as by the detention of his luggage for purposes of a dog-sniff, that his fifth amendment rights were violated by the failure to give him Miranda warnings, and that the detention of him and his luggage by Alaska state officers violated Alaska law. I deny Campbell’s motion to suppress.

ANALYSIS

Campbell contends that the government’s motion to reconsider my original decision on his motion was untimely, and challenges the legality of his initial questioning and detention, the detention of his luggage, the failure to give him Miranda warnings, and the conduct of the Alaska state law enforcement officers who detained him and his luggage.

A. The Government’s Motion to Reconsider

It is undisputed that the government filed its motion to reconsider my September 24, 1985 decision on October 23, 1985 — twenty-nine days afterward. Campbell contends, as a threshold matter, that the motion to reconsider is untimely under this district’s local rules, which require that such ^notions be filed within ten days of the court’s original order. See District of Alaska Gen.RuIe 5(J)(1).

However, the Ninth Circuit and the Supreme Court have indicated that motions for reconsideration brought by the government in criminal cases, concerning matters on which the government could appeal under 18 U.S.C. § 3731 (1982), are timely if filed within thirty days. See In re Grand Jury Subpoenas (Kiefaber), 774 F.2d 969, 973-74 (9th Cir.1985); see also United States v. Dieter, 429 U.S. 6, 7-9, 97 S.Ct. 18, 19-20, 50 L.Ed.2d 8 (1976); United States v. Healy, 376 U.S. 75, 78, 84 S.Ct. 553, 555, 11 L.Ed.2d 527 (1964). Since this thirty-day time limitation is based upon the Ninth Circuit’s and Supreme Court’s interpretations of section 3731, which is a federal statute, it must control in spite of this district’s local rule. See In re Grand Jury, 774 F.2d at 974. The government’s motion to reconsider is therefore timely.

B. Initial Questioning of Campbell

Campbell contends that his initial questioning by Alaska State Trooper Canter violated his fourth amendment rights. I disagree. The fourth amendment does not prohibit a law enforcement officer from approaching an individual in a public place and asking the individual if he or she is willing to answer some questions. Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983); United States v. Mendenhall, 446 U.S. 544, 553-54, 100 S.Ct. 1870, 1876-77, 64 L.Ed.2d 497 (1980); Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968). The person approached need not answer any questions and remains free to walk away. Royer, 460 U.S. at 497-98, 103 S.Ct. at 1324; Mendenhall, 446 U.S. at 559, 100 S.Ct. at 1879. As long as a reasonable person would believe that he or she is free to leave, there is no intrusion upon any constitutionally-protected interest. Mendenhall, 446 U.S. at 554-55, 100 S.Ct. at 1877; United States v. Patino, 649 F.2d 724, 726-27 (9th Cir.1981).

Thus, Canter did not require any predicate when she initially approached Campbell and asked if he would speak with her. Campbell responded that he would and voluntarily moved a few feet out of the traffic area. Within a few minutes, Canter ascertained Campbell’s name from his Oklahoma driver’s license and learned that he had just arrived on a plane travelling through Seattle. She asked to see his plane ticket and Campbell voluntarily produced it. Canter noticed that it was a one-way ticket from Houston, Texas to Anchorage, that it was in the name of Larry Thomas, and that it had been purchased for cash. When she asked Campbell about the discrepancy in names, he responded that he had bought the ticket from a man in Houston.

Asking for Campbell’s driver’s license and plane ticket and examining them when he voluntarily complied did not violate Campbell’s fourth amendment rights. See Royer, 460 U.S. at 501, 103 S.Ct. at 1326. The fact that Campbell was not told that he could refuse to stop and answer questions does not change this. See Mendenhall, 446 U.S. at 555, 100 S.Ct. at 1877. I find that under these circumstances, a reasonable person would have believed that he was free to end the conversation and walk away. There was no fourth amendment violation at this stage.

C. Terry-Type Detention of Campbell

Campbell contends that at a certain point, Canter’s initial questioning of him ripened into a Terry-type detention, and that the detention violated his fourth amendment rights. Although I agree that by the time it was concluded, the questioning of Campbell had become a Terry -type detention, I do not agree that this detention violated the fourth amendment.

It is clear that “reasonable suspicion of criminal activity” warrants a temporary Terry -type detention for questioning. Royer, 460 U.S. at 498-99, 103 S.Ct. at 1324; United States v. Brignoni-Ponce, 422 U.S. 873, 881-82, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607 (1975). The scope of the intrusion permitted will vary from case to case, but it must last no longer than is necessary to effectuate the purpose of the stop. Royer, 460 U.S. at 500, 103 S.Ct. at 1325.

Canter’s initial observations of Campbell and Campbell’s responses to her first few questions revealed that: (1) Campbell had travelled to Anchorage from Houston, Texas, which is considered by drug enforcement authorities as a “drug-source” city; (2) he deplaned early; (3) he was travelling alone; (4) upon entering the airport he scanned the crowd in a furtive manner; (5) he carried a carry-on bag over his shoulder; (6) he left the gate area quickly; (7) he appeared nervous while waiting at the baggage claim area and while answering questions; (8) his plane ticket was in a name different from that on his driver’s license; and (9) his plane ticket had been purchased with cash. From her training at a seminar sponsored by the Drug Enforcement Administration (DEA) at Chicago’s O’Hare Airport, Canter concluded that these characteristics satisfied the drug-courier profile. I conclude that these factors, in combination, supplied Canter and Sergeant Grimes with “reasonable suspicion” that Campbell was carrying concealed drugs, and therefore justified a temporary detention under Terry. See id. at 502, 103 S.Ct. at 1326. The troopers were justified in detaining Campbell and his luggage temporarily while they attempted to verify or dispel their suspicion. See id.

In an effort to confirm or dispel their suspicion, Canter asked Campbell whether he was carrying any drugs. Campbell said he was not. Canter indicated that the troopers were conducting a drug investigation at the airport and were looking to intercept a large quantity of narcotics, but were not concerned with a small amount of drugs. Campbell then produced a small bag of loose marijuana from one pocket and a bag containing two partially used marijuana cigarettes from another pocket. Canter asked Campbell what was in his luggage. Campbell responded that he did not know, and said it might be paraphernalia for his uncle’s head shop. I find that Canter’s additional questions were within the scope of a Terry -type detention.

By the end of their conversation with Campbell, therefore, the troopers had added two more observations to the nine enumerated previously: (1) Campbell was carrying a small quantity of marijuana, and (2) he claimed that his luggage contained paraphernalia for his uncle’s head shop. The presence of these factors strengthened the troopers’ reasonable suspicion that Campbell was carrying concealed drugs.

The entire conversation between the troopers and Campbell lasted about ten minutes, from 3:45 p.m. to 3:55 p.m. I find that this brief detention of Campbell for questioning did not exceed the permissible scope of a Terry-type seizure based on reasonable suspicion.

D. Detention of Campbell’s Luggage For a Dog-Sniff

Campbell contends that the troopers’ detention of his luggage in order to subject it to a dog-sniff constituted an unreasonable seizure under the fourth amendment. I disagree. The Supreme Court has held that for an investigative detention of an individual’s luggage to pass muster under the fourth amendment, it must meet the same standards as a Terry-type investigative stop. See United States v. Place, 462 U.S. 696, 708-09, 103 S.Ct. 2637, 2645, 77 L.Ed.2d 110 (1983); see also United States v. Sharpe, — U.S. -, 105 S.Ct. 1568, 1574-75, 84 L.Ed.2d 605 (1985). I conclude that the troopers’ investigative detention of Campbell’s luggage fully satisfied these Terry standards.

Near the close of their conversation, Canter asked Campbell if he had any objection to having the troopers search his luggage. Campbell responded that he did. Canter then told Campbell that the troopers would detain his luggage for a dog-sniff: she indicated that the dog-sniff would occur that day, but did not provide a specific time-frame. She informed Campbell that the dog-sniff would take place in the troopers’ office at the airport, and that his luggage would be stored in the evidence locker at that office whenever it was not in the troopers’ actual custody.

Campbell was informed that he could remain with his luggage or that he could leave and the troopers would contact him later. Campbell chose to leave. Grimes and Campbell exchanged phone numbers and other information. Campbell was told that he would be contacted about the result of the dog-sniff. If the dog did not alert, the troopers would contact Campbell to return his luggage to him. If there were a positive alert, the troopers would continue to detain the luggage and apply for a search warrant.

After Campbell left the airport at 3:55 p.m., the troopers returned to their office at the airport, and telephoned Sergeant Bowman at home at 4:12 p.m. Bowman arrived with the narcotics-detection dog at 4:28 p.m. and prepared the dog for duty. The dog alerted to the presence of drugs in Campbell's luggage at 4:52 p.m. About one hour elapsed between the time the troopers seized Campbell’s luggage and the time the dog alerted.

Campbell claims that the investigative detention of his luggage violated the fourth amendment because of the length of time that elapsed before the dog-sniff was conducted and because Canter gave Campbell no clear indication of when the dog-sniff would occur. To determine whether the investigative detention of Campbell’s luggage satisfied the requirements of Terry, I must examine

whether the [detention] was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.

Sharpe, 105 S.Ct. at 1573 (quoting Terry, 392 U.S. at 20, 88 S.Ct. at 1879).

I conclude that the troopers’ detention of Campbell’s luggage was “justified at its inception,” based on Canter’s observations of and discussions with Campbell, including Campbell’s suspicious-sounding response about the contents of his luggage. To determine whether the detention was also “reasonable” in its scope, I must consider its duration, the law enforcement purposes it served, and the time reasonably needed to effectuate those purposes. Id.; United States v. Hensley, — U.S. -, 105 S.Ct. 675, 683-84, 83 L.Ed.2d 604 (1985); Place, 462 U.S. at 703-04, 103 S.Ct. at 2642-43; Michigan v. Summers, 452 U.S. 692, 700 & n. 12, 101 S.Ct. 2587, 2593 & n. 12, 69 L.Ed.2d 340 (1981). In light of these considerations, I conclude that the detention was reasonable in its scope.

The Supreme Court has recently indicated that “[i]n assessing whether a detention is too long in duration to be justified as an investigative stop, [courts must determine] whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant [or his property].” Sharpe, 105 S.Ct. at 1575. The Supreme Court has cautioned that courts performing this analysis “should not indulge in unrealistic second-guessing” of the police:

A creative judge engaged in post hoc evaluation can almost always imagine some alternative means by which the objectives of the police might have been accomplished. But “[t]he fact that the protection of the public might, in the abstract, have been accomplished by ‘less intrusive’ means does not, in itself, render the [police conduct] unreasonable.”

Id. at 1576 (citations omitted). As the Court explained, “[t]he question [in such cases] is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it." Id. (emphasis added).

Campbell contends that the one-hour detention of his luggage at the airport prior to subjecting it to a dog-sniff was unreasonably long. He relies upon the Supreme Court’s decision in United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), which held that a ninety-minute investigative detention of a defendant’s luggage for purposes of a dog-sniff was unreasonable. See id. at 709-10, 103 S.Ct. at 2645-46. Campbell recognizes that at the time of his stop and detention, the troopers had only one narcotics-detention dog available to them, and that when he arrived at the airport, the dog and its handler, Sergeant Bowman, were not on duty. Nevertheless, he contends that the delay in administering the dog-sniff was unreasonable. Campbell notes that when the troopers stopped him, they had been waiting specifically for a narcotics shipment about which they had been informed. He argues that in light of their purpose for being at the airport and the likelihood that a dog-sniff might be required, it was unreasonable for them not to bring their detection dog with them in order to minimize any possible intrusion to individuals they would stop. See Sharpe, 105 S.Ct. at 1575; Place, 462 U.S. at 709, 103 S.Ct. at 2645. He also maintains that even if the troopers’ own dog was not available to be at the airport with them, they should have borrowed a narcotics-detection dog from the Municipality of Anchorage or some other agency, or should have acquired a second dog of their own.

I cannot accept Campbell’s contentions. The Supreme Court has explicitly rejected the notion that a “rigid time limitation” can be imposed in determining the reasonableness of Terry detentions. See Sharpe, 105 S.Ct. at 1575; Place, 462 U.S. at 709 & n. 10, 103 S.Ct. at 2646 & n. 10. Moreover, in assessing the reasonableness of the detention of Campbell’s luggage, I cannot conclude, based on the record in this case, that the troopers “were dilatory in their investigation,” or that there was “any delay unnecessary to the legitimate investigation of the law enforcement officers.” Sharpe, 105 S.Ct. at 1576. After their discussion with Campbell, Carter and Grimes promptly returned to their office at the airport and called Bowman, who immediately came to the airport with the narcotics-detection dog. Bowman arrived within about thirty minutes of Campbell’s departure. Once Bowman arrived, approximately another twenty minutes was required to prepare the detection dog to perform the dog-sniff. The record indicates that this preparation period is not unusual when the dog has not previously been on duty, and was not attributable to any dilatoriness on the part of the troopers.

As to Campbell’s claim that the troopers should either have brought their detection dog to the airport earlier that day, borrowed another detection dog, or maintained more than one detection dog of their own, the Supreme Court has expressly cautioned courts against indulging in such second-guessing of police conduct. See id. Although adopting any of these options would clearly “have minimized the intrusion on [Campbell’s] Fourth Amendment interests,” Place, 462 U.S. at 709, 103 S.Ct. at 2645-46, I cannot agree with Campbell, based on the present record, that it was “unreasonable” for the troopers not to pursue any of them. See Sharpe, 105 S.Ct. at 1576; see also U.S. v. West, 731 F.2d 90, 92-94 (1st Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 956, 83 L.Ed.2d 963 (1985).

Campbell also contends that the detention of his luggage was unreasonable because when the troopers initially detained the luggage, they failed to give him a precise time when the dog-sniff would occur. Canter indicated only that the dog-sniff would occur that same day. Although the Supreme Court has suggested that law enforcement officers should be as precise as possible in informing individuals about the timing and procedures that will be followed when their luggage is detained for a dog-sniff, see Sharpe, 105 S.Ct. at 1576; Place 462 U.S. at 710, 103 S.Ct. at 2646, I conclude that the troopers’ failure to provide a precise time-frame in Campbell’s case was not unreasonable under the fourth amendment. The troopers were extremely explicit in describing to Campbell the procedures they intended to follow, and they provided him with a telephone number where he could contact them. I cannot conclude that their failure to provide a precise time for the dog-sniff, in the absence of any question or request by Campbell, constituted a fourth amendment violation.

For all these reasons, I conclude that the troopers’ investigatory detention of Campbell’s luggage was not “unreasonable” under fourth amendment standards. See United States v. Borys, 37 Crim.L.Rep. (BNA) 2331-32 (7th Cir. June 27, 1985) (holding that 75-minute detention of suspected drug courier’s luggage in airport pending arrival of narcotics-detection dog was not unreasonable under fourth amendment), cert. denied, — U.S.-, 106 S.Ct. 852, 88 L.Ed.2d 893 (1986).

E. Seizure of Campbell’s Luggage Pending Search-Warrant Application

Although Campbell has not directly challenged the troopers’ retention of his luggage between the completion of the dog-sniff on Saturday, January 19, 1985, and their formal application to the federal magistrate for a search warrant on Monday, January 21, 1985, I conclude that this also did not violate the fourth amendment. Once the dog-sniff of Campbell’s luggage was completed, the troopers were no longer holding the luggage merely “for purposes of an investigation”; their retention of the luggage pending application for a search warrant constituted a full-scale seizure. See United States v. Licata, 761 F.2d 537, 540-41 (9th Cir.1985). Therefore, to satisfy fourth amendment standards, the retention of the luggage must have been supported by both probable cause and exigent circumstances. See id. at 541-44.

I find that both these requirements were satisfied following the completion of the dog-sniff. The detection dog’s alert, combined with Campbell’s suspicious responses to questions concerning the contents of his luggage, was sufficient to provide the troopers with probable cause to search the luggage. See id. at 542; see also United States v. Spetz, 721 F.2d 1457, 1464 (9th Cir.1983). Moreover, Campbell’s nervous demeanor and evasive answers were sufficient to lead the troopers to believe that exigent circumstances existed, and that retention of Campbell’s luggage was “necessary to prevent the destruction of relevant evidence or prevent other consequences that [might] improperly frustrate legitimate law enforcement efforts.” Licata, 761 F.2d at 543. Following the dog-sniff, the troopers’ only alternatives were to retain the luggage themselves or to return it to Campbell pending their application for a search warrant. Based on the record, I conclude that it was necessary for them to retain the luggage in order to prevent “loss or possible destruction of ... contraband by the owner.” Id. Therefore, the troopers’ retention of Campbell’s luggage was supported by both probable cause and exigent circumstances.

I also note in passing that the two-day duration of the troopers’ retention of Campbell’s luggage pending their application for a federal search warrant was not unreasonable under the fourth amendment. See Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 3390 & n. 8, 82 L.Ed.2d 599 (1984) (dictum). The record indicates that the troopers attempted to contact the federal magistrate early on the evening of Saturday, January 19, only a few hours after the dog-sniff had been completed, but learned then that the magistrate was unavailable. They appeared before the magistrate to apply for a search warrant on the next business day: Monday, January 21. Under the circumstances, I cannot conclude that their conduct was unreasonable under fourth amendment standards. See id.

F. Failure To Give Carnpbell A Miranda Warning

Campbell contends that his fifth amendment rights were violated because the troopers failed to give him a Miranda warning when questioning him at the airport. Miranda requires that when an individual is subjected to custodial interroga-, tion, he must be warned that he has the right to remain silent, that anything he says can be used against him, that he has the right to an attorney, and that an attorney will be appointed if he cannot afford one. Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 1629-30, 16 L.Ed.2d 694 (1966). Given my explicit finding that the troopers’ questioning of Campbell did not constitute a custodial interrogation, Miranda does not apply to his case. Therefore, I reject Campbell’s fifth amendment challenge.

G. Alaska Law Violations By State Troopers

Finally, Campbell contends that the cocaine seized from his luggage must be suppressed because the troopers, as state officers, violated Alaska law in stopping him at the airport and detaining his luggage for a dog-sniff. Campbell maintains that the troopers’ actions violated the Alaska-law principles enunciated in Coleman v. State, 553 P.2d 40, 43 (Alaska 1976), and Ebona v. State, 577 P.2d 698, 700 (Alaska 1978).

I do not agree. The Ninth Circuit has recently held that “[ejvidence obtained in violation of neither the Constitution nor federal law is admissible in federal court proceedings without regard to state law.” United States v. Little, 753 F.2d 1420, 1434 (9th Cir.1984) (citations omitted and emphasis original). Moreover, two recent Alaska cases clearly indicate that the troopers’ actions in stopping and detaining Campbell and in detaining his luggage for a dog-sniff did not violate the principles of Coleman or Ebona or violate Alaska law in general. See Pooley v. State, 705 P.2d 1293, 1305-11 (Alaska Ct.App.1985); see also Givson v. State, 708 P.2d 708, 710-11 (Alaska Ct.App.1985).

Therefore, I reject Campbell’s challenge based on Alaska law.

CONCLUSION

• Based on this analysis, I reject Campbell’s contentions that the troopers violated his rights under the fourth and fifth amendments and Alaska law. I hereby deny Campbell’s motion to suppress the cocaine seized from his luggage.

      . A memorandum and order on Campbell’s motion to suppress was filed on September 24, 1985. The government moved for reconsideration of that decision on October 23, 1985. The September 24, 1985 order is hereby withdrawn, and replaced with this amended decision.

      . Campbell’s motion to suppress was referred to the Magistrate for recommendation, and he recommended that it be denied. Campbell has filed objections to that recommendation with this court.

      . The government originally conceded that the troopers did not have probable cause to seize Campbell’s luggage prior to subjecting it to a dog-sniff, see Government’s Response to Defendant’s Memorandum In Support of Motion to Suppress, p. 15, but now argues in its motion for reconsideration that its seizure of the luggage was justified based upon probable cause. Because of my ruling on Campbell’s motion to suppress, I need not reach this issue.

      . The record indicates that the troopers added a second narcotics-detection dog to their kennel in April, 1985.

      . Campbell notes that a state magistrate denied an application by the troopers for a warrant to search Campbell’s luggage on January 19, 1985. He claims that this denial indicates that the troopers violated Alaska law in stopping and detaining Campbell and in detaining his luggage for a dog-sniff. I do not agree.
      The transcript of the hearing on the search warrant application suggests that the state magistrate found that there was no probable cause to search Campbell’s luggage. The denial was not based on a finding that the troopers had violated Alaska law by detaining Campbell and his luggage. The transcript also suggests that the state magistrate may have misapplied Alaska and federal law principles in denying the application for a search warrant.