author: STAGG, Chief Judge.

text:
    MOORE BUSINESS FORMS, INC. v. Marvin SEIDENBURG, d/b/a Moore Business Forms and Systems.
    Civ. A. No. 85-2356.
    United States District Court, W.D. Louisiana, Shreveport Division.
    Sept. 27, 1985.

      Charles G. Tutt, Cook, Yancey, King & Galloway, Shreveport, La., Robert A. Van-derhye and James T. Hosmer, Cushman, Darby & Cushman, Washington, D.C., for plaintiff.
    Marvin Seidenburg, pro se.
   MEMORANDUM RULING

STAGG, Chief Judge.

Moore Business Forms, Inc. (hereafter referred to as “Moore”) has sued defendant, Marvin Seidenburg, alleging violations of the Lanham Trademark Act, 15 U.S.C. §§ 1114(1), 1116, 1125(a) and La.R.S. 51:223.1. Moore has requested injunctive relief. A hearing was held on Wednesday, September 25, 1985, in conformity with Fed.R.Civ.P. 65. Based upon the evidence and the applicable law, this court determines that injunctive relief is appropriate.

This court has subject matter jurisdiction pursuant to 15 U.S.C. § 1121 and 28 U.S.C. § 1338. The state law claim against the defendant is cognizable in this court under diversity jurisdiction, 28 U.S.C. § 1332, and under the theory of pendent jurisdiction.

I PARTIES

Moore Business Forms, Inc. is a subsidiary of Moore Corporation Ltd., a Canadian corporation. Moore Business Forms, Inc. is incorporated in Delaware and has been doing business in the United States since 1946 under that name. Moore Business Forms, Inc. is a publicly-held corporation whose stock is traded on the New York Stock Exchange.

Moore Corporation Ltd. and its subsidiaries are known as “Moore” or “Moore’s” in the business community. This corporation was started in 1882 by Samuel J. Moore. It is the largest manufacturer of business forms in the world. It has 1 million customers in the United States, and Moore Business Forms, Inc. accounted for $1.4 billion in sales in 1984 alone.

Defendant Seidenburg is a 57-year-old entrepreneur who has resided in Shreveport since 1975. Prior to that time he resided in Little Rock, Arkansas. He has owned and operated numerous businesses including a television news publication and a “Pen-Mar” or “Penmar” Business Forms company which brokered business forms manufactured by others and sold by him. The “Pen-Mar” business was discontinued upon defendant’s divorce from his wife.

Defendant indicated that he continued to sell business forms under the name “Marv’s Business Forms & Systems” after the demise of the “Pen-Mar” venture.

II FACTUAL BACKGROUND

A Plaintiff’s use of “Moore”

Plaintiff has been doing business in the United States for over 100 years, using the name “Moore.” Plaintiff has been doing business in Shreveport under that name since 1944 and currently has offices located at 2924 Knight Street in this city. Plaintiff has several registered trademarks and service marks of the name “Moore,” pursuant to 15 U.S.C. §§ 1051-1054. Registration No. 1,281,875 is a service mark registration of the name “Moore” for leasing and rental of form-handling equipment. Registration No. 1,281,565 is a trademark registration of the name “Moore” for various types of business form machines. Registration No. 1,232,705 is a trademark registration of the name “Moore” for business forms. Registration No. 1,204,543 is a trademark registration of a large “M” with the name “Moore” beneath it. This trademark is reserved for business forms. All the subsidiaries of Moore Corporation Ltd., including Moore Business Forms, Inc., use the words “Moore Business ...” as the first two words of the corporate name. Moore has spent literally millions of dollars to promote the identity of the word “Moore” with business forms and business machinery. In the last 10 years, over $7 million has been spent in advertising. In 1984, $1 million was spent in advertising Moore products.

B Defendant’s use of “Moore”

Defendant first began using the name “Moore Business Forms & Systems” in connection with the sale of business form products in August 1984. Defendant alleges that he was given permission to use this name by Ray Stump Jr. Apparently Mr. Stump sought incorporation under this name from the State of Louisiana. There is no proof that this attempt at incorporation was ever finalized under Louisiana law. Defendant is not an employee of Ray Stump, and admits no connection to Ray Stump other than his granting permission to use the name “Moore Business Forms & Systems.” Defendant does business under the name “Moore Business Forms & Systems” from his apartment located at 3201 Knight Street, only two blocks from plaintiff’s place of business. Defendant also conducts business under the name “Moore Printing & Mailing Inc.” This business is apparently owned by Fashion Plus, a business concern which defendant alleges to be in bankruptcy. Defendant states that James S. Noel, on behalf of the stockholders of Fashion Plus, authorized defendant’s use of the name and phone number of “Moore Printing & Mailing Inc.” in return for a percentage of sales. Moore Printing & Mailing offers the same services (primarily business forms) as defendant’s other business, Moore Business Forms & Systems. In fact, when the listed number for Moore Printing & Mailing is dialed, there is a recording by South Central Bell which indicates that the number has been changed. This new number is the same phone number for Moore Business Forms & Systems.

Several invoices and business cards have been attributed to defendant. One invoice, sent to Ivan Smith Furniture Company, indicates that it was sent from Marv’s Business Forms & Systems, but also has the notation “AKA Moore Business Forms & Systems,” in the upper right-hand corner. Another invoice sent to the Northwest Louisiana Vo-Tech School indicates that remittance should be made to “Moore Business Forms & Systems” at 3201 Knight Street, Shreveport, LA (defendant). Defendant’s business card bears the inscription “Moore Business Forms & Systems, Inc.” The defendant answers his phone “The Moore Company” or “The More Company.”

Ill CLAIMS IN CONTENTION

Plaintiff has three contentions. First, plaintiff contends that defendant’s use of the names “Moore” and “More” infringes upon plaintiffs registered trademark in contravention of 15 U.S.C. § 1114:

(1) Any person who shall, without the consent of the registrant—
(a) use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; or
(b) reproduce, counterfeit, copy, or eolorably imitate a registered mark and apply such reproduction, counterfeit, copy, or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used in commerce upon or in connection with the sale, offering for sale, distribution, or advertising of goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive.
shall be liable in a civil action by the registrant for the remedies hereinafter provided____

Second, plaintiff contends that defendant’s use of “Moore Business Forms & Systems” and “Moore Printing & Mailing” constitutes unfair competition or trade dress violation since it misrepresents the plaintiff as the origin of goods rather than the defendant. The governing statute is 15 U.S.C. § 1125, which provides, in pertinent part:

(a) Any person who shall affix, apply, or annex, or use in connection with any goods or services, or any container or containers for goods, a false designation of origin, or any false description or representation, including words or other symbols tending falsely to describe or represent the same, and shall cause such goods or services to enter into commerce, and any person who shall with knowledge of the falsity of such designation of origin or description or representation cause or procure the same to be transported or used in commerce or deliver the same to any carrier to be transported or used, shall be liable to a civil action by any person doing business in the locality falsely indicated as that of origin or in the region in which said locality is situated, or by any person who believes that he is or is likely to be damaged by the use of any such false description or representation.

Third, plaintiff alleges a violation of Louisiana’s Trademarks and Tradenames Statute, La.R.S. 51:223.1. This statute provides, in pertinent part:

Likelihood of injury to business reputation or of dilution of the distinctive quality of a mark or trade name shall be a ground for injunctive relief in cases of infringement of a mark registered or not registered or in cases of unfair competition notwithstanding the absence of competition between the parties or the absence of confusion as to the source of goods or services.

Plaintiff seeks a preliminary injunction and specifically requests an order enjoining defendant from using the name “Moore” or “More” in any form, that the infringing products be destroyed pursuant to 15 U.S.C. § 1118, that an intercept operator be set up, and that defendant take steps to remove the infringing name from the next issue of the telephone directory.

IV INJUNCTION

In order to secure a preliminary injunction, plaintiff has the burden of proving four elements: “(1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury if the injunction is not issued; (3) that the threatened injury to the movant outweighs any damage the injunction might cause to the opponent; and (4) that the injunction will not disserve the public interest.” Enterprise International, Inc. v. Corporacion Estatal Petrolera Ecuatoriana, 762 F.2d 464, 471 (5th Cir.1985) (citing Apple Barrel Productions, Inc. v. Beard, 730 F.2d 384, 386 (5th Cir.1984)).

V SUCCESS ON THE MERITS/SUBSTANCE OF LAW

A. INFRINGEMENT

A cause of action for the infringement of a registered trademark in violation of 15 U.S.C. § 1114 “exists where a person uses (1) any reproduction, counterfeit, copy or colorable imitation of a mark; (2) without the registrant’s consent; (3) in commerce; (4) in connection with the sale, offering for sale, distribution or advertising of any goods; (5) where such use is likely to cause confusion, or to cause mistake or to deceive." Boston Professional Hockey Association v. Dallas Cap & Emblem Mfg., 510 F.2d 1004, 1009-10 (5th Cir.1975). The “essential question” in a claim of trademark infringement is the “likelihood of confusion” concerning the identify or association between plaintiff and Moore Business Forms & Systems or Moore Printing & Mailing due to their common use of the name “Moore Business Forms____”

See Sun Banks of Florida v. Sun Federal Savings & Loan Assn., 651 F.2d 311, 314 (5th Cir.1981).

Plaintiff has established the first four elements of a cause of action under 15 U.S.C. § 1114(1). Plaintiff has proven the existence of a registered trademark and service mark for the name “Moore.” Defendant’s use of the trade name/trademark/service mark “Moore” is without plaintiff’s consent since defendant refused to comply with a “cease and desist” letter sent to him by plaintiff. (Affidavit of Laurence B. Oppenheimer.) The use of the name “Moore” is made in commerce as the defendant has used this designation as a means to sell products to customers in the Shreveport area. The use of the name “Moore” is made in connection with goods and services. Not only has the defendant used this designation as a means to sell various types of business forms to customers in the Shreveport area (affidavits of Ann James, Frank Orton and Carol Terry), but “the law is settled that a trademark can be infringed by the use of a mark solely as the tradename of another.” Exxon Corporation v. Humble Exploration Company, 524 F.Supp. 450, 458 (N.D.Tex. 1981).

The final element — likelihood of confusion — is established by an “amalgam of factors.” Sun-Fun Products, Inc. v. Suntan Research & Development, Inc., 656 F.2d 186, 189 (5th Cir.1981). These factors include: “type of service mark, similarity of design, similarity of service, identity of service facilities and customers, similarity of advertising media used, defendant’s intent and actual confusion.” Sun Banks, 651 F.2d at 314; Amstar Corporation v. Domino’s Pizza, Inc., 615 F.2d 252, 259 (5th Cir.1980).

1. Type of Trademark

The first factor to consider is whether “Moore” is a “strong” or a “weak” mark. Trademark strength may be generally defined although the “concept of trademark strength and weakness is, at best, amorphous and not susceptible of easy definition.” R. Callmann, The Law of Unfair Competition Trademarks and Monopolies § 20.43 at 261 (4th ed. 1983). “A strong trademark is one that is rarely used by parties other than the owner of the trademark, while a weak trademark is one that is often used by other parties. In short, the more distinctive a trademark, the greater its ‘strength.’ ” Exxon Corporation v. Texas Motor Exchange of Houston, Inc., 628 F.2d 500, 504 (5th Cir.1980). In a suit based on infringement, there is no distinction between the various forms of marks, e.g., a trademark, a service mark, or a business name (trade name). Callmann, supra § 21.08 at 27.

Under the applicable jurisprudence, there are four categories of marks:

A strong mark is usually fictitious, arbitrary or fanciful and is generally inherently distinctive. It is afforded the widest ambit of protection. See Amstar Corp. v. Domino’s Pizza, Inc., 615 F.2d at 259, quoting Lunsford, Trademark Basics, 59 Trademark Rep. 873, 878 (1969). A descriptive mark tells something about the product; it is protected only when secondary meaning is shown. See Vision Ctr. v. Opticks, Inc., 596 F.2d 111 (5th Cir.1979), cert. denied, 444 U.S. 1016, 100 S.Ct. 668, 62 L.Ed.2d 646 (1980); Miss Universe, Inc. v. Patricelli, 408 F.2d 506 (2d Cir.1969). But see Hesmer Foods, Inc. v. Campbell Soup Company, 346 F.2d 356 (7th Cir.), cert. denied, 382 U.S. 839, 86 S.Ct. 89, 15 L.Ed.2d 81 (1965) (barbecue beans used as a description, not as a trademark). In contrast to the above is the suggestive mark, which subtly connotes something about the service or product. Although less distinctive than a fictitious, arbitrary or fanciful mark and therefore a comparatively weak, mark, a suggestive mark will be protected without proof of secondary meaning. See Soweco, Inc. v. Shell Oil Co., 617 F.2d 1178, 1184 (5th Cir.1980) (“if used as a trademark for refrigerators, the term ‘Penguin’ would be suggestive.”) Lastly, there are generic terms, which communicate “information about the nature or class of an article or service,” America Heritage Life Ins. Co. v. Heritage Life Ins. Co., 494 F.2d 3, 11 (5th Cir.1974), and therefore can never become a service or trademark.

Sun Banks, 651 F.2d at 315.

The mark at issue in this case is a common English surname, “Moore.” As such, it does not easily fit into the traditional pigeonholes outlined by the Sun Banks court above. A trademark infringement ease involving a firm name involves special considerations:

In an infringement case, a firm name is to be treated as a composite trademark of which the name of an individual is a part. An individual name is rather similar to a descriptive word, in the sense that it might properly be regarded as a convenient description of the fact that the named individual is or was affiliated with the firm. Its scope of protection will therefore be as variable as that which is afforded to the descriptive words. No protection will be available if the name is merely descriptive; it may, however, enjoy the greatest scope of protection if its primary meaning is less significant than the secondary meaning. A name that has acquired a secondary significance, however descriptive it may once have been, constitutes one of the most valuable and potent marks in trade.

Callmann, supra, § 21.36 at 145-46.

This court determines that “Moore” is a strong mark. This determination is made on the basis of the strong secondary meaning which has attached to the name “Moore” in connection with the sale of business forms and machinery. The concept of “secondary meaning” was first developed as part of the common-law of trademarks. It has been described as follows:

[Descriptive terms, geographical place names, and family surnames are not inherently distinctive and do not alone identify any particular company’s product. They were not protected as trademarks unless they had acquired distinctiveness through extensive use by a single supplier, so that the public would recognize them as identifying the source of the product. This consumer identification is known as “secondary meaning.”

Chevron Chemical Co. v. Voluntary Purchasing Groups, Inc., 659 F.2d 695, 702 (5th Cir.1981). Plaintiff has been engaged in business in the United States for over 100 years. It has over 1 million customers in the United States, and has invested substantial sums of money in advertising to promote the recognition of its name in the business community. Through the passage of time and the expenditure of dollars, “Moore” has come to mean to business forms what “Campbell” means to soup, “Mrs. Paul” means to frozen fish and what “Scott” means to paper towels. Campbell, Paul and Scott are all common American surnames, but through their ready identification with soup, frozen fish, and paper towels, respectively, a newcomer cannot use these names to sell the same type of goods without running afoul of the prohibition against trademark infringement.

The fact that other business concerns may use the name “Campbell,” or “Paul,” or “Scott” on other types of products does not diminish the amount of protection which these names have earned for soup, fish and paper towels. “The third-party uses and registrations ... merely limit the protection to be accorded plaintiffs mark outside the uses to which plaintiff has already put its mark.” Amstar, 615 F.2d at 260. Both plaintiff and defendant are engaged in substantially the same business: the marketing of business forms. Thus, the mark “Moore” will be protected within this sphere against defendant’s use of the same name, even though the mark “Moore” may not be entitled to such strong protection in another type of market.

2. Similarity of Design

Similarity of design is “determined on the basis of the total effect of the designation, rather than on a comparison of individual features.” Sun Banks, 651 F.2d 317-18 (citing Restatement of Torts § 729, Comment B (1938)). This factor has also been described as “really nothing more than a subjective eyeball test.” Texas Motor Exchange, 628 F.2d at 504 (quoting 2 J. McCarthy, Trademarks and Unfair Competition § 237:7 (1973)). Absolute identity is not required in order to establish an infringement under 15 U.S.C. § 1114. See Humble Exploration, 524 F.Supp. at 460. The mark “Moore” and all of its legitimate variants, Moore Business Forms, Inc., Moore Business Systems, Moore Business Centers, all subsidiaries of the parent corporation, Moore Corporation Ltd., are very similar on their face. Given the strong secondary meaning of the “Moore” mark, there is little or no distinction between the legitimate variants of the “Moore” mark and defendant’s Moore Business Forms & Systems.

At the hearing, defendant informed the court that he would agree not to use the name “Moore” but that he wanted to continue to do business as “The More Company.” This change in spelling is not enough to alter the fundamental similarity, and potential confusion, between plaintiff’s mark and defendant’s trade name. One noted commentator has remarked:

Word marks may appeal to the eye, the ear or the mind; thus, there may be similarities of appearance, sound or meaning between them. If such similarity creates a probability of confusion, infringement can be found. Similarity in itself, however, is not the test. Whether the similarity is likely to provoke confusion is the crucial question. On the other hand, mere dissimilarity in one or more of these respects will not, by itself, negate the probability of confusion.

Callmann, supra, § 20.13 at 67. The dissimilarity between the spelling of M-O-OR-E and M-O-R-E does not change the potential for confusion between the two names. The two words are phonetically identical and, in this case, “misspelling does not absolve the offender where there is similarity in ... sound____” Id. This phonetic similarity is especially important when the competitors in the market rely on phone orders as do plaintiff and defendant:

Confusion, attributable to similarity in pronunciation is minimized when the product is purchased in self-service departments and not by requests of sales clerks. Conversely, similarity in sound is of special significance where the goods are sold by name over the counter, advertised over the radio or ordered by telephone.

Callman, supra, § 20.13 at 68.

3. Similarity of Products

“The greater the similarity between the products and services, the greater the likelihood of confusion.” Texas Motor Exchange, 628 F.2d at 505. In this case, there is a complete identity of products. Both plaintiff and defendant offer business forms to the Shreveport market. In fact, at the hearing defendant acknowledged the similarity in products and the fact that he was in direct competition with plaintiff.

4. Identity of Retail Outlets

“Dissimilarities between the retail outlets for and the predominant consumers of plaintiffs and defendant’s goods lessen the possibility of confusion, mistake, or deception.” Id. (citing Amstar Corp., 615 F.2d at 252). In the instant case, there is a striking similarity in the advertising media used by the two parties. Both rely upon listings in the local phone directory to generate sales. The defendant is listed immediately below the plaintiff in the local phone directory. Defendant, the newcomer to the market, is located on the same street within a few blocks of the plaintiff. This striking similarity in phone directory advertising has been a direct cause of confusion to plaintiff’s customers. [See affidavits of Ann James and Carol Terry.) At the hearing, Carol Terry testified that based upon the listings in the telephone directory, she “assumed that one was a division of the other.” The importance of the phone orders was shown by the testimony of Sam Flood, plaintiff’s district sales manager. He testified that 80 per cent of plaintiff’s business is “repeat business.” These repeat customers, like Carol Terry who testified that she has used plaintiff’s products for over seven years, typically pick up the phone book and reorder by calling one of plaintiff’s salesmen.

5. Defendant’s Intent

“That a latecomer adopts another’s name or mark, deliberately seeking to capitalize on the other’s reputation and benefit from the confusion, is an important factor for any court.” Sun Banks, 651 F.2d at 318-19. In fact, “[ejvidence of intentional deception carries special weight in the calculus of determining likelihood of confusion. Indeed, proof that a defendant chose a mark with the intent of copying plaintiff’s mark, standing alone, may justify an inference of confusing similarity, Exxon, 628 F.2d at 506; Amstar Corp., 615 F.2d at 263.” Sun-Fun Products, 656 F.2d at 190. This court finds that there was an intent on the part of the defendant to cause confusion and thereby cash in on the good will of plaintiff’s name. Defendant has done nothing to distinguish itself from the plaintiff when Shreveport customers have contacted defendant and indicated verbally that they believed they were dealing with plaintiff. (See affidavit of Ann James.) In fact, defendant has taken affirmative actions to ensure that business customers in Shreveport would be deceived into believing that defendant and plaintiff were one and the same company. On one occasion, a representative of defendant informed Carol Terry, one of plaintiff’s customers, that her “file must have been lost in [defendant’s] recent move.” Defendant’s representative also told Miss Terry that one of plaintiff’s current salesmen, Bill Babers, no longer works for Moore. (See also affidavit of Frank Orton.) These statements were made to create the illusion that the defendant was the “Moore Company” with which these customers had been dealing for a number of years.

The finding that defendant intended to create the impression that he was connected to plaintiff is bolstered by defendant’s own testimony. Defendant testified that he first knew of the existence of plaintiff in 1966. He did not, however, assume the name “Moore” in his own business dealings until August 1984. Defendant admits that when he decided to use the name “Moore,” he was informed by two different individuals, James S. Noel and B.J. Woods, that there might be a problem with the use of that name but that defendant “probably could get away with” or “most likely could use” that name. Defendant did not seek out an attorney’s advice, but rather admits that he has obtained business by trading off of plaintiff’s good will.

6. Actual Confusion

The final factor to consider is actual confusion. “The best evidence of likelihood of confusion is provided by evidence of actual confusion.” Texas Motor Exchange, 628 F.2d at 506 (citing Roto-Rooter Corp. v. O’Neal, 513 F.2d 44 (5th Cir. 1975)). “In determining the likelihood of confusion, however, a court must consider all of the evidence, including countervailing circumstances which lessen the impact of asserted instances of confusion.” Sun Banks, 651 F.2d at 319. Plaintiff has outlined a number of instances of actual confusion in which numerous individuals and companies have mistaken defendant for plaintiff. Ann James and Carol Terry, two long-term customers of plaintiff, both phoned defendant with the mistaken impression that they were phoning plaintiff, in order to make a purchase with plaintiff. Plaintiffs district manager, Sam Flood, testified that he and his receptionist have received many calls from customers who have been confused by the similarity in name between plaintiff and defendant. Both the post office and UPS have confused plaintiff and defendant.

Weighing all of the factors which Fifth Circuit jurisprudence requires to be considered, this court finds that there is a strong likelihood of confusion, if not actual confusion, which justifies injunctive relief to prevent further violations of 15 U.S.C. § 1114.

B. TRADE DRESS/UNFAIR COMPETITION

Plaintiff also seeks relief on the grounds that defendant’s use of the mark “Moore” or “More” constitutes a misrepresentation of origin in violation of 15 U.S.C. § 1125. “Section 1125(a) does not specifically create a cause of action for trademark and trade name infringement. Instead, it is broadly worded to describe (1) the use of words or symbols (2) tending to falsely describe or represent (3) the source of origin (4) of goods or services (5) in commerce.” Humble, 524 F.Supp. at 456. When a trademark used by the plaintiff is so associated with its products, the use of the same mark by another company constitutes a representation that its goods come from the same source. Id. at 457; Boston Professional Hockey Association, 510 F.2d at 1010. Like claims of trademark infringement, the basic test for claims under 15 U.S.C. § 1125 is the likelihood of confusion. Chevron, 659 F.2d at 703; Amstar, 615 F.2d at 258. Once a finding of confusion is made under § 1114, a finding of false representation of origin is made under § 1125. Boston Pro Hockey Assn., 510 F.2d at 1013. This court has found a likelihood of confusion under plaintiff’s infringement claim and, likewise, finds a likelihood of confusion under plaintiff’s trade dress/unfair competition claim. The use of the name “Moore” or “More” by defendant is likely to create the false impression that the goods sold originate with plaintiff rather than some other supplier. As such, plaintiff is entitled to injunctive relief under 15 U.S.C. § 1125(a).

C. STATE LAW CLAIMS

Plaintiff’s state law claim does not merit lengthy consideration. The injunction entered against defendant “as .a result of its violation of [the Lanham Trademark Act] will be at least as broad as any that could be justified under [state] law.” Chevron, 659 F.2d at 706. Plaintiff would be entitled to no greater relief under Louisiana law. Consequently, this court will not address the res nova issue of the interpretation of the recently-enacted La.R.S. 51:2231.

VI IRREPARABLE INJURY

Trademark and trade dress infringement cases involve a unique threat of irreparable injury. “Because plaintiff may not control the quality of defendant’s goods [plaintiff] has lost and faces future losses of its own reputation and good will. This loss of control ... constitutes immediate, irreparable harm.” American Rice, Inc. v. Arkansas Rice Growers Cooperative, 532 F.Supp. 1376, 1389 (S.D.Tex.1982).

Sam Flood testified that defendant’s activities had interrupted plaintiff’s sales system by breaking the cycle of repeat, quality service provided by Moore which in turn generates repeat requests for additional Moore products. When defendant has provided goods to plaintiff’s customers, ill will has been created when (1) plaintiff’s customers realized that they were not dealing with the right party, and (2) when the products were more expensive.

VII THREAT OF HARM TO PLAINTIFF GREATER THAN THREAT OF HARM TO DEFENDANT

Given that plaintiff has been in business for over 100 years and has a strong reputation in the community, the threat of injury to plaintiff is greater than that to defendant who is a late-comer to the market and whose products have not been heavily promoted. See American Rice, 532 F.Supp. at 1389.

VIII NOT ADVERSE TO PUBLIC INTEREST

An injunction in trademark infringement and trade dress/unfair competition cases is not adverse to the public interest. The Fifth Circuit has recently noted: “the trademark laws exist not to ‘protect’ trademarks but ... to protect the consuming public from confusion, concomitantly protecting the trademark owner’s rights to a nonconfused public____ By ensuring correct information in the market place, the laws reduce losses caused by misunderstanding and deceit and thus permit consumers and merchants to maximize their own welfare confident that the information presented is truthful.” Falcon Rice Mill, Inc. v. Community Rice Mill, Inc., 725 F.2d 336, 348 (5th Cir.1984).

Having determined that plaintiff has met each requirement for the issuance of an injunction, this court now considers the scope of the relief to which plaintiff is entitled. The Fifth Circuit has recently noted that in unfair competition cases or cases involving trademark infringement, the district court should fashion relief broad enough to protect the plaintiff’s interests:

[A] competitive business, once convicted of unfair competition in a given particular, should thereafter be required to keep a safe distance away from the margin line — even if that requirement involves a handicap as compared with those who have not disqualified themselves.

Chevron, 659 F.2d at 705 (citing Broderick & Bascom Rope Co. v. Manoff, 41 F.2d 353, 354 (6th Cir.1930).)

In order to keep Marvin Seidenburg “away from the margin line,” this court will allow plaintiff its requested relief in its entirety.

An Order consistent with the terms of this Memorandum Ruling shall issue herewith.

ORDER

Based upon the reasons expressed in the foregoing Memorandum Ruling,

IT IS ORDERED that defendant Marvin Seidenburg, and all those in active concert and participation with him who receive notice, refrain from using the trade name, trademark, service mark, or trade designation “Moore Business Forms & Systems,” “Moore Business Forms,” “Moore Business Systems,” “Moore Printing & Mailing, Inc.,” “The Moore Company,” “The More Company,” and “Moore” or “More” in any form, in association with the solicitation, marketing, or sales of business forms, paper, envelopes, sales books, or any like products.

IT IS FURTHER ORDERED that all invoices, business cards, stationery, or any other documents, in the possession of defendant or anyone in active concert with him who receives notice, which use the words “Moore” or “More” be delivered up to plaintiff and destroyed.

IT IS FURTHER ORDERED that an intercept operator be set up at defendant’s expense, to answer defendant’s telephone numbers 318/865-5207 and 318/222-9229 to advise all callers that if it was their intention to reach Moore Business Forms, Inc., they have reached the wrong party and that the correct number for Moore Business Forms, Inc. in Shreveport is 318/868-3615.

IT IS FURTHER ORDERED that defendant advise the appropriate company in Shreveport, Louisiana, to refrain from listing “Moore Business Forms & Systems,” “Moore Printing & Mailing, Inc.,” “The More Company,” or any business containing the words “Moore” or “More” in any form, in the next issuance of the Shreveport-Bossier City telephone directory.


source: Caselaw Access Project

author: MISHLER, District Judge.

license: Public Domain

text:
    Ronald RIZZO, Barbara Walberg, and Kim Walberg, Plaintiffs, v. Elaine TERENZI, Defendant.
    No. CV 85-2572.
    United States District Court, E.D. New York.
    Sept. 30, 1985.

      Ronald Rizzo, Barbara Walberg, and Kim Walberg, pro se.
    Raymond J. Dearie, U.S. Atty., E.D.N.Y., Susan M. Rogers, Asst. U.S. Atty., Brooklyn, N.Y., for Elaine Terenzi.
   Memorandum of Decision and Order

MISHLER, District Judge.

Plaintiffs, pro se, bring this action for injunctive relief and monetary damages on the ground that defendant United States Probation Officer Elaine Terenzi, acting under color of federal law, deprives them of their constitutional rights by refusing to permit them to travel outside this district. Plaintiffs ask this court to compel defendant to grant plaintiff Rizzo’s request that he be permitted to travel to Florida for a period of thirty days. While plaintiffs characterize their claim as a Bivens action, the court construes this action for injunc-tive relief as an action in the nature of mandamus pursuant to 28 U.S.C. § 1361 (1982). Defendant moves to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b), or, in the alternative, for summary judgment pursuant to Fed.R. Civ.P. 56.

FACTS

Plaintiff Ronald F. Rizzo was convicted on a charge of importing heroin and served approximately four years of a federal prison term before being released from custody. Plaintiff Barbara Walberg, convicted on charges of conspiracy to import heroin, importation of heroin, and possession with intent to distribute heroin, was released from custody after serving approximately eighteen months of a federal term. Upon their release Rizzo and Walberg each executed a standard certificate acknowledging the conditions of their parole, which include a requirement that they “work regularly unless excused by [their] probation officer,” and prohibit them from leaving the Eastern District of New York “without written permission from [their] probation officer.” Defendant Probation Officer Elaine Terenzi was assigned to supervise Rizzo and Walberg at all times relevant to this action.

Shortly after his release Rizzo orally requested permission from Terenzi to travel to Florida for a period “not to exceed thirty days.” According to Officer Terenzi, Rizzo sought to vacation and to investigate a possible job opportunity. Officer Terenzi denied Rizzo’s request, explaining that she would consider granting a request for a shorter trip. No such request was ever made.

Since his release Rizzo has failed to demonstrate any legitimate employment or a verifiable source of regular income. He has made no attempt to seek regular employment. It is the position of Officer Ter-enzi that three days would be adequate time to investigate the job opportunity proposed by Rizzo, and that a thirty day vacation is not warranted in light of Rizzo’s poor employment history and the difficulty of maintaining close supervision while in Florida. The location plaintiffs seek to visit is in a remote area, approximately one hundred miles from the closest United States Probation Office.

Walberg, although joining in this action to compel Terenzi to grant permission, has never taken steps to request permission for the proposed thirty day trip.

Plaintiff Kim Walberg is Barbara Wal-berg’s eleven year old daughter. Kim Wal-berg is not under parole supervision and is joined in this suit to protest the denial of Rizzo’s permission to travel which, it is claimed, deprives the plaintiffs of their rights to liberty and property without due process of law.

DISCUSSION

The plaintiffs ask this court to direct Probation Officer Terenzi to grant permission for a thirty-day trip to Florida. Because this action seeks to compel an officer of the United States to perform a duty, we construe it as an action in the nature of mandamus. 28 U.S.C. § 1361 (1982). While the plaintiffs’ allegations are sufficient to confer jurisdiction upon this court to consider issuance of a writ, we find there is no genuine issue of material fact and defendant is entitled to judgment as a matter of law.

A writ of mandamus may issue only where the plaintiff establishes a clear right to the relief sought; a plainly defined and peremptory duty on the defendant’s part to do the act in question; and lack of another available, adequate remedy. Billiteri v. United States Bd. of Parole, 541 F.2d 938, 946 (2d Cir.1976). Where, as here, the allegations in the complaint adequately set forth the failure of such a duty, the court has jurisdiction under § 1361. See id. at 946-47; see also Soberal-Perez v. Schweiker, 549 F.Supp. 1164, 1170 (E.D.N. Y.1982), aff'd, 717 F.2d 36 (2d Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 1713, 80 L.Ed.2d 186 (1984). Because the pleadings and supporting materials demonstrate that none of the required elements are met, however, plaintiffs’ claim must fail.

That plaintiffs have no “clear right” to the relief sought is beyond question. As parolees, Rizzo and Walberg are subject to the express terms of their release, which include the condition that they “shall not leave the limits fixed by [the] certificate of parole. without written permission from the probation officer.” 28 C.F.R. § 2.40(3) (1985). Absent such permission, Rizzo and Walberg are restricted to the Eastern District of New York under their respective certificates. While the right to travel from state to state is indeed constitutionally protected, Shapiro v. Thompson, 394 U.S. 618, 629, 89 S.Ct. 1322, 1329, 22 L.Ed.2d 600 (1969), an individual’s right to travel, extinguished by conviction and subsequent imprisonment, is not revived upon parole. Bagley v. Harvey, 718 F.2d 921, 924 (9th Cir.1983).

It is well established that a parolee enjoys “only conditional liberty properly dependent on observance of special parole restrictions,” Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972), and that the government may “properly [subject] him to many restrictions not applicable to other citizens.” Id. at 482, 92 S.Ct. at 2601. The viability of the parole system depends upon certain restrictions, among them the ability to monitor and control travel. See Berrigan v. Sigler, 499 F.2d 514 (D.C.Cir.1974). In the absence of approval from their probation officer, Rizzo and Walberg have no “right” to travel.

For the same reasons, the claimed “duty” on the part of defendant is in fact discretionary. The court may compel compliance with a constitutional duty only “after determining its substance.” Soberal-Perez v. Schweiker, 549 F.Supp. 1164, 1170 (E.D.N.Y.1982), aff'd, 717 F.2d 36 (2d Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 1713, 80 L.Ed.2d 186 (1984); see also Davis v. United States Dept. of Health, Ed. & Welfare, 416 F.Supp. 448 (S.D.N.Y.1976). Discretion as to whether to grant travel permission is vested in the probation officer. See 28 C.F.R. § 2.41(a) (1985) (“The probation officer may approve travel outside the district. . . .) (emphasis added). As we have already noted, this comports with constitutional requirements. Mandamus is not available to direct or influence the exercise of discretion, as the legislative history of § 1361 makes clear. See S.Rep. No. 1992, 87th Cong., 2d Sess., reprinted in 1962 U.S.Code Cong. & Ad. News 2784. Because Officer Terenzi’s decision to deny approval rests on legitimate governmental interests in supervising and rehabilitating plaintiffs, it was not arbitrary or capricious and the court will not substitute its judgment for that of the Probation Office. See Birzon v. King, 469 F.2d 1241, 1243 (2d Cir.1972) (government may impose parole restrictions “that are reasonably and necessarily related” to governmental interests); cf. Queenan v. Heckler, 581 F.Supp. 1216, 1218 (S.D.N.Y.1984) (mandamus appropriate where agency decision “so clearly contradicted by the record” as to constitute abuse of discretion).

Finally, plaintiffs do not lack available, adequate remedies. It is uncontradicted that plaintiff Walberg has failed to request travel permission" from her probation officer. Plaintiff Rizzo, although having discussed the request at issue with a supervisory probation officer, has yet to make a formal, properly documented request encompassing all of the claimed objectives of his trip. Clearly, plaintiffs have not exhausted the administrative remedies available to them.

Because there is no genuine issue of material fact and the material on record demonstrates that none of the elements required to support a writ of mandamus are met, defendant is entitled to judgment as a matter of law.

Plaintiffs' claim for money damages likewise fails. Plaintiffs seek damages based upon their assertion that defendant Terenzi, acting under color of federal law, violated their constitutional rights under the Fifth Amendment by refusing to permit the requested travel. Constitutional deprivations by federal officers acting under color of federal authority may indeed give rise to a cause of action for damages. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). As we have already noted, however, the events complained of do not constitute a constitutional violation because Rizzo and Walberg, as parolees, no longer enjoy a right to unrestricted travel.

We note further that Rizzo was not constitutionally entitled to an evidentiary hearing on his travel request. As the Supreme Court has repeatedly determined governmental decisions do not automatically invoke due process protection. Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2104, 60 L.Ed.2d 668 (1979). Whether due process requirements apply in a given instance turns on the nature of the private right affected by the governmental action. Morrissey, supra, 408 U.S. at 481, 92 S.Ct. at 2600. Where, as here, there is no established right to the freedom sought, the constitution does not mandate due process protection. As Judge Friendly has explained, “ ‘there is a human difference between losing what one has and not getting what one wants.’ ” Friendly, Some Kind of Hearing, 123 U.Pa.L.Rev. 1267, 1296 (1975), quoted in Greenholtz, supra, 442 U.S. at 11, 99 S.Ct. at 2105.

This crucial distinction is best illustrated by comparing the due process considerations inherent in the parole revocation context with the stark absence of such protection in the initial parole release decision. Where the parolee has been granted the freedom of parole, his interest in continued liberty mandates constitutional protection. Morrissey, supra, 408 U.S. at 481-82, 92 S.Ct. at 2600-01. Where no interest in conditional liberty has yet been created, however, the mere possibility of parole is not protected by due process. Greenholtz, supra, 442 U.S. at 9-11, 99 S.Ct. at 2104-05. The parolee released from confinement has been granted but conditional liberty, and his liberty interest is defined by the terms of his release. Because he is already subject to geographic restriction, a decision not to relax that restriction does not invoke due process considerations.

In the absence of a right to unrestricted travel, plaintiffs are not entitled to due process protection for their desire to travel together to Florida. Because there is no genuine issue of material fact, we find that defendant is entitled to judgment as a matter of law.

CONCLUSION

Defendant’s motion for summary judgment is granted, and it is

SO ORDERED.

The Clerk of the Court is directed to enter judgment in favor of defendant dismissing the complaint.

      . While Rizzo was mandatorily released, he is released "as if on parole," pursuant to 18 U.S.C. § 4164 (1982), until his six-year special parole commences on February 8, 1986. Walberg was mandatorily released in June, 1984, and her eight-year special parole commenced on July 8, 1984.

      . As set forth by Rizzo, the reason for the thirty-day request is to provide adequate time to visit family; make repairs to plaintiffs’ Florida property; make plans for relocating to Florida; and investigate an offer of employment. Plaintiff has been informed by Stephen Rackmill, Supervising United States Probation Officer for the Eastern District of New York, that the Probation Department will consider granting travel permission for up to two weeks for these purposes provided such a request is made and supported with a detailed itinerary and financial information. To date Rizzo has not made such a request.

      . As defendant’s brief correctly notes, while plaintiffs characterize their Fifth Amendment rights as the right to vacation as a family, visit family, and use and maintain family property located in Florida, determination of the right to travel issue necessarily disposes of the other issues.

      . In addition, Rizzo has not applied for permission to relocate to Florida, one avowed purpose of his proposed trip, and has not petitioned the United States Parole Commission for modification of his parole conditions. See 18 U.S.C. § 4209(d)(2) (1982).

      . There is an additional reason why the decision at issue in this case is closer to the initial release decision than it is to the revocation proceeding. While the decision to revoke parole turns on the "wholly retrospective factual question” of whether an individual has violated parole conditions, Morrissey, supra, 408 U.S. at 479-80, 92 S.Ct. at 2599, the initial release decision "depends on an amalgam of elements, some of which are factual but many of which are purely subjective.” Greenholtz, 442 U.S. at 10, 99 S.Ct. at 2105. The travel decision, too, is largely subjective, as it is based at least in part on an assessment of what will best contribute to the parolee’s rehabilitation. See Morrissey, supra, 408 U.S. at 478-79, 92 S.Ct. at 2599. Just as in the release decision, “there is no set of facts which, if shown, mandate a decision favorable to the individual." Greenholtz, supra, 442 U.S. at 10, 99 S.Ct. at 2105. Accordingly, imposition of procedural protections is unlikely to reduce the risk of "error” in the probation officer’s determination.


author: STANLEY S. HARRIS, District Judge.

text:
    Russell Wayne ANDERSON, Plaintiff, v. USAIR, INC., Defendant.
    Civ. A. No. 85-523.
    United States District Court, District of Columbia.
    Sept. 30, 1985.

      Mary P. Porter, Washington, D.C., for plaintiff.
    William F. Sheehan, Washington, D.C., for defendant.
   MEMORANDUM OPINION AND ORDER

STANLEY S. HARRIS, District Judge.

This case now is before the Court on cross-motions for summary judgment. Before the Court also is the plaintiffs motion to amend his complaint. The plaintiff, Russell Wayne Anderson, challenges the rule of the defendant, USAir, Inc., which excludes blind persons from the emergency exit row seats on USAir’s commercial aircraft. The Court concludes that the plaintiff has failed to show that the seating rule violates the Rehabilitation Act, the Federal Aviation Act, or those portions of the Constitution upon which he has based his claims. The Court also concludes that the plaintiff has asserted no state law claim upon which he may recover. In light of the untimeliness and superfluity of the plaintiff’s motion to amend his complaint, the Court finds that it should be denied.

The Court readily can understand the desire of blind people to be treated equally with sighted persons to the greatest extent feasible. Nevertheless, there are situations in everyone's life in which a degree of autonomy must be given over to others in the interest of the safety and well-being of oneself and of others. This case presents such a situation. In this, the worst year in civil aviation history from the standpoint of the number of fatalities, the interest in air safety demands that every air passenger defer to the expertise of air transportation safety authorities and relinquish a measure of autonomy.

Facts

On February 6, 1985, Mr. Anderson and three companions boarded USAir Flight 371 at Washington National Airport. Mr. Anderson was assigned seat 12-C, which is located in the row which serves the overw-ing emergency exit on DC-9 aircraft. As he attempted to take his seat, a flight attendant advised him that the seat was in an emergency exit row and requested him to move to a seat in a non-emergency exit row. Mr. Anderson contends that he was told that he could not sit in the emergency exit row because he is blind. He also contends that he was told that there was a Federal Aviation Administration (FAA) policy prohibiting blind individuals from sitting in emergency exit rows. When Mr. Anderson refused requests to move by three USAir officials, he was arrested and left the plane. Mr. Anderson’s refusal to move and the ensuing discussions delayed the flight’s departure by 58 minutes.

Mr. Anderson was taken to the FAA police station, where USAir officials told him that he could travel to his destination that evening on the next available flight. He also was read a statement of USAir’s policy regarding emergency exit row seating, although he was never given a copy of the policy. Eventually, he requested a ticket for the next day on USAir, and he was released without charges.

On February 7, 1985, Mr. Anderson returned to the airport. He approached the USAir ticket counter and requested seat 12-C on the flight for which he had been issued a ticket the day before. He was accompanied by some 50 people; the media had been alerted of the possibility of a demonstration at the airport. A USAir ticket agent told Mr. Anderson that he could not sit in seat 12-C. When Mr. Anderson insisted, the agent read a statement of USAir’s policy. Mr. Anderson declined to sit elsewhere. Consequently, the agent refused to issue Mr. Anderson a boarding pass.

Mr. Anderson and the group with him attempted thereafter to board the plane without a boarding pass. When a USAir employee offered to get him a pass, Mr. Anderson asked for each of the five seats in the emergency exit row. He was told they were all assigned. Without having been issued a pass, he attempted to board when the boarding began, but he was stopped at the jetway. Eventually, the plane departed without Mr. Anderson. Mr. Anderson and his supporters returned to the ticket counter and staged a demonstration until 11:00 p.m., roughly six hours after they had come to the airport.

The complaint in this action was filed the next day, February 8,1985. Coincidentally with the filing of this suit, the National Federation of the Blind released to the press a statement that the suit had been filed and that a nationwide shutdown of USAir was planned to protest discriminatory seating policies.

Mr. Anderson’s claims are based on section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; section 404(a) of the Federal Aviation Act, 49 U.S.C. § 1374(a); 14 C.F.R. § 121.586(b) (1985); and the commerce clause and the due process clause of the Constitution. He also alleges a tort of outrage, breach of his contractual rights, and a violation of the obligation of USAir as a public carrier to provide equal and courteous service to all.

Claims Under the Rehabilitation Act

Section 504 of the Rehabilitation Act reads as follows:

No otherwise qualified handicapped individual ... shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance____

This section “seeks to assure evenhanded treatment and the opportunity for handicapped individuals to participate in and benefit from programs receiving federal assistance.” Alexander v. Choate, — U.S. —, 105 S.Ct. 712, 722, 83 L.Ed.2d 661 (1985). In this case, the program receiving federal assistance is air travel. The plaintiff does not assert that he was excluded from participation in or denied the benefits of air travel. Indeed, USAir made numerous offers to transport Mr. Anderson on flights of his choosing in non-emergency exit row seats. Mr. Anderson claims, rather, that he was subjected to discrimination in air travel within the meaning of § 504.

As enacted, § 504 did not provide for administrative implementation of its mandate against discrimination. The Civil Aeronautics Board began an extensive rulemaking process in 1979 which ultimately resulted in regulations that left a great deal of discretion to the airlines. The preamble to the regulations itself expressly suggested that it would be within an air carrier’s discretion to request “handicapped passengers, along with children and others who might have trouble opening an emergency exit, not to sit in exit rows,” even though able-bodied passengers would be permitted to sit there. 47 Fed.Reg. 25939 (June 16,1982). Although the CAB did not require such a request, it gave explicit approval for the adoption of such a policy by the airlines.

In addition to the preamble, the regulations require that a request by the air carrier be safety-related or necessary for the provision of air transportation. 14 C.F.R. § 382.3(c)(3)(ii) (1985). The request in this case is based on USAir’s policy, filed with the FAA pursuant to 14 C.F.R. § 121.586, which provides in relevant part:

During boarding, and throughout your flight, do not allow the following passengers to be seated in the Emergency Exit rows:
—incapacitated passengers
—children (12 and under)
—women/men with babies
—elderly/senile passengers
—prisoners
—blind passengers
—obese passengers

This policy was designed to comply with FAA requirements that (1) an air carrier must be able to evacuate the passengers on an aircraft within a period of 90 seconds, and (2) the carrier ensure that access to emergency exit windows is free from obstruction. See 14 C.F.R. §§ 121.291(a), 25.-803(c), 121.310(f)(3) (1985). It is clear that the policy is not directed toward discriminating against blind people, since the policy addresses any class of individuals which, in USAir’s opinion, would impede the evacuation of an aircraft.

The FAA’s Civil Aeromedical Institute conducted several studies related to seating and evacuating handicapped passengers, one of which resulted in the conclusion that

the average ambulatory handicapped passenger ... could be seated anywhere in the cabin except in an exit row or a primary overwing exit route, where he might impede the early stages of an evacuation or be injured by the rush of other passengers. Egress by way of ov-erwing exits on aircraft without wing-to-ground descent devices would expose handicapped passengers to injury.

Upon consideration of the study and hearings it held, the FAA recommended in an advisory circular that blind passengers “should be seated in areas in which evacuation would normally occur through a floor level, non-overwing exit.” See FAA Advisory Circular 120-32 (Mar. 25, 1977).

The DC-9 aircraft serving the USAir flights on which Mr. Anderson sought to travel are designed with emergency exit rows which lead to non-floor level, over-wing exits without wing-to-ground descent devices. There are three different procedures for opening the windows of USAir’s various aircraft. Once a passenger in an overwing exit row has opened the window, he or she must ascertain whether the wing is intact, not on fire, or otherwise unsafe. Once on the wing, he or she must determine whether descent can be made from the wing in light of the possibility that the plane may be resting on a cliff, there may be sharp objects on the ground, or there may be fire or water on the ground. It is not just the blind (or other handicapped) person’s safety the policy is designed to protect, but the safety of all passengers. Although Mr. Anderson’s filings have shown that there, are blind individuals who may be able to make these determinations in some circumstances, assuredly he has not shown that blind people as a class are so qualified. 14 C.F.R. § 121.586; 47 Fed. Reg. 25,939.

Under the CAB’s final regulations, § 504 protects only “qualified handicapped persons.” Paralyzed Veterans of America v. C.A.B., 752 F.2d 694, 719 (D.C.Cir. 1985). The study by the Civil Aeromedical Institute, the recommendation by the FAA, and the regulations all support USAir’s policy determination that safety requires the exclusion of blind passengers from emergency exit row seating. Because the policy against seating blind passengers in emergency exit rows is safety-related and is not discriminatory, the Court finds no violation of § 504 of the Rehabilitation Act.

Claims Under the Federal Aviation Act

Section 404(a) of the Federal Aviation Act, 49 U.S.C. § 1374(a), requires air carriers to provide safe and adequate service. Mr. Anderson claims that USAir’s policy regarding the seating of blind people violates this section.

There is no provision in the Federal Aviation Act for a private cause of action under § 404(a). The Department of Transportation and the FAA have the sole power to enforce the duty of providing safe and adequate service. 49 U.S.C. §§ 1421(a)(6), 1471, 1472, 1482(d)(3), 1487, 1511(a); 49 U.S.C. § 106(g) (1985 Special Pamphlet). See Hingson v. Pacific Southwest Airlines, 743 F.2d 1408, 1414 (9th Cir.1984) (no private cause of action under § 404(a) for airline’s arrest of blind person with guide dog for refusal to sit in bulkhead seat); Diefenthal v. C.A.B., 681 F.2d 1039, 1049 (5th Cir.1982), cert. denied, 459 U.S. 1107, 103 P.2d 732, 74 L.Ed.2d 956 (1983) (adequate service provision in § 404(a) did not create a private cause of action),

In that there is no private cause of action and Congress has given designated agencies enforcement authority, Mr. Anderson must look to the agencies for relief before looking to this Court. See Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463-64, 82 L.Ed. 638 (1983). Both the FAA and the Department of Transportation — as the successor to the CAB — have procedures in place for processing private complaints. See 14 C.F.R. § 13.5 (1985); 14 C.F.R. § 302.201-.206. Such procedures include filing a complaint about a violation of the Federal Aviation Act or an agency rule, investigation by the agency, and, in the case of the FAA, the issuance of cease and desist orders, compliance orders, civil penalties, or the seeking of enforcement in the district court. In the case of the Department of Transportation, formal enforcement proceedings may be instituted if a complaint is found to be based on reasonable grounds.

Mr. Anderson has not pursued his remedies with either administrative agency, each of which has jurisdiction over his claim. His claim must be dismissed since there is no private right of action under § 404(a) and he has failed to exhaust his administrative remedies.

Claim Under FAA Rule 121.586

Mr. Anderson apparently has conceded the failure of his original claim that USAir’s policy of excluding blind passengers from exit rows is inconsistent with the policies that USAir has filed with the FAA and therefore is in violation of 14 C.F.R. § 121.586. That issue was not addressed in the opposition to USAir’s motion and was dropped in plaintiff’s amended complaint. The Court addresses this claim, however, since the amended complaint will not be accepted.

The affidavit of Robert Berkebile, USAir’s director of customer service system (filed May 25, 1985) reveals that the policy regarding emergency exit rows has been contained in both USAir’s Flight Attendant Emergency Manual and its Passenger Service Manual. According to Mr. Berkebile’s affidavit, both of those manuals were filed with the FAA Air Carrier District Office 38, which is the FAA office charged with USAir’s inspection. Therefore, the exclusionary policy is the same policy filed with the FAA and could not be inconsistent with the filed policy of USAir under FAA Rule 121.586.

Constitutional Claims

In his complaint, Mr. Anderson states that USAir’s “exclusionary policy violates fundamental rights secured by the United States Constitution including the right to travel; the Commerce Clause and the Due Process Clause of the Fifth Amendment.” In addition, in his motion for summary judgment, Mr. Anderson raises a claim of equal protection.

In order to establish an equal protection claim under the fifth amendment and the commerce clause, Mr. Anderson would have to show the involvement of a state actor. USAir, a private corporation, privately funded, is not made an arm of the state or federal government by the fact that it holds a certificate to operate from the federal government. See Brown v. District of Columbia Transit System, Inc., 523 F.2d 725, 727 (D.C.Cir.), cert. denied, 423 U.S. 862, 96 S.Ct. 121, 46 L.Ed.2d 91 (1975). Regulation by the federal government does not transform USAir into a state actor. See Rendell-Baker v. Kohn, 457 U.S. 830, 841, 102 S.Ct. 2764, 2771, 73 L.Ed.2d 418 (1982); Blum v. Yaretsky, 457 U.S. 991, 1007-08, 102 S.Ct. 2777, 2787-88, 73 L.Ed.2d 534 (1982). USAir does not necessarily become a state actor by its receipt of federal or state assistance. See Rendell-Baker v. Kohn, 457 U.S. at 840, 102 S.Ct. at 2770-71. Finally, USAir’s request to the FAA police to remove Mr. Anderson from the airplane does not constitute state action. See Dahlberg v. Becker, 748 F.2d 85 (2d Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 1845, 85 L.Ed.2d 144 (1985). Therefore, Mr. Anderson has not shown the required state action to support his equal protection claim. Even had state action been shown, Mr. Anderson has not shown that blindness is a suspect classification requiring strict scrutiny under the fifth or fourteenth amendments. USAir’s policy satisfies the rational basis test on the basis of the safety considerations involved, the study regarding the seating of handicapped passengers, the recommendation of the FAA, and the CAB suggestions regarding blind passengers and emergency exit row seats.

With regard to Mr. Anderson’s claim under the commerce clause, the Court finds that there has been no showing as to how commerce has been burdened by USAir’s policy. The restriction applies to only two of 22 rows in this particular type of aircraft and is safety-related. Similarly, the Court finds that Mr. Anderson has not alleged specific facts to support his claim that his right to travel was denied. USAir offered a seat to Mr. Anderson on his choice of flights on both February 6 and 7 in any non-emergency exit row. At all times, USAir has stood ready to transport Mr. Anderson. Reasonable safety restrictions on the flights are permissible and have not curtailed Mr. Anderson’s right to travel. See United States v. Davis, 482 F.2d 893, 912-13 (9th Cir.1973) (airport searches do not violate right to travel). Accordingly, Mr. Anderson’s claims under the Constitution must be dismissed.

Claims Under State Law

In Count Five of his complaint, Mr. Anderson states that USAir’s policy and the efforts of its agents in procuring the arrest of Mr. Anderson constitute a “tort of outrage.” In Count Six, Mr. Anderson alleges that USAir’s policy and its agents’ actions violated his contractual rights and USAir’s “obligation as a public carrier to provide equal and courteous service to all.”

The Court finds first that Mr. Anderson has not set forth facts sufficient to state a cause of action for outrage in his complaint or in the pleadings filed thereafter. The tort of outrage requires that the underlying conduct be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” RESTATEMENT (SECOND) OF TORTS § 46 comment d (1965). It is for the Court to determine “in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery, or

whether it is necessarily so.” Id. at comment h. See also Hingson v. Pacific Southwest Airlines, 743 F.2d 1408, 1416 (9th Cir.1984). Nowhere in the filings is there alleged conduct satisfying any of those standards. Rather, USAir’s actions were in accord with both its published procedures and the FAA’s recommendations. Consequently, the Court finds that USAir is entitled to summary judgment on this claim.

The Court next turns to Mr. Anderson’s claim that USAir breached its contract of carriage in failing to transport him in an emergency exit row seat. No specific term or condition of the contract is alleged to have been breached, however. Furthermore, there is no provision in the contract between the parties specifying a passenger’s right to sit anywhere in the plane. The tickets issued by USAir incorporate by reference USAir’s Terms of Transportation under which “USAir may refuse to transport, or may remove from any flight, any passenger [who] ... (2) attempts to interfere with any member of the flight crew in the pursuit of his/her duties, ... or (4) engages in any action that might jeopardize the safety or comfort of other passengers.” Finally, the Terms of Transportation explicitly limit USAir’s liability for refusal to transport, stating that “USAir is not liable for its refusal to transport any passenger or for its removal of any passenger in accordance with the above paragraphs but USAir will provide the applicable involuntary refund.” Mr. Anderson received such a refund through a credit on a TWA ticket. Thus, the contract provided for Mr. Anderson’s removal when he attempted to interfere with the flight crew’s duties which were imposed by the Flight Attendant Emergency Manual and when he engaged in actions jeopardizing the safety of other passengers by refusing to comply with a policy based on safety considerations. Since USAir’s contract also limits its liability for refusing to carry Mr. Anderson -to a refund which he has received, Mr. Anderson cannot recover on this theory of liability.

The Court finally finds that Mr. Anderson’s claim that USAir’s policy violated USAir’s obligation as a common carrier to provide service is based on a state law duty that has been expressly preempted by Congress in an amendment to the Federal Aviation Act. The Act provides in pertinent part that:

[N]o State or political subdivision thereof ... shall enact or enforce any law, rule, regulation, standard, or other provision having the force and effect of law relating to rates, routes, or services of any air carrier having authority under subchap-ter IV of this chapter to provide interstate air transportation.

49 U.S.C. § 1305(a)(1). The legislative history is clear that this Act and regulations issued thereunder preempted any state laws relating to air carrier services. See H.Rep. No. 1211, 95th Cong., 2d Sess. 15-16 reprinted in 1978 U.S.Code Cong. & Ad.News 3737, 3751-52. Such services include the regulation of air carrier seating policies for handicapped passengers. See Hingson, 743 F.2d at 1415-16. Moreover, the common law of common carriers was not revived by the repeal of § 404(b) since the repeal was part of the same legislation which enacted the preemption provision. Thus, Mr. Anderson has no basis for his claims for USAir’s alleged violation of its obligation as a public carrier.

Motion for Leave To Amend the Complaint

The Court has considered Mr. Anderson’s motion for leave to file an amended complaint. Ordinarily, leave is freely given when justice requires it under Fed.R.Civ.P. 15. The Court finds in this case, however, that prejudice and expense would inure to the defendant without a significant offsetting benefit. Therefore, justice requires that the motion be denied.

As noted in the facts, this case was filed with unusual speed — on the day after the second of the deliberately planned precipitating incidents. Approximately a month later, a status conference was held, at which time the parties agreed to a discovery and briefing schedule. More than three months after the complaint was filed, discovery was closed; ten days thereafter plaintiff’s motion was filed with the parties’ cross-motions for summary judgment. If the amended complaint alleged facts unknown prior to completion of discovery, the delay in amending the complaint would be understandable. However, an analysis of the amended complaint shows that no new facts are alleged to justify adding four counts. Furthermore, a fifth additional count would require additional discovery and is only tangentially related to the incident upon which the complaint is based. Finally, the remaining changes are superfluous.

In light of the lateness of this motion, in that the parties had agreed to a schedule and were well on their way toward disposition, the unnecessary delay that would be caused by the amendment of the complaint, and the absence of new facts to justify the delay in moving to amend the complaint, the Court finds that the motion to file an amended complaint must be denied.

Conclusion

For the foregoing reasons, and upon consideration of Mr. Anderson’s motion for leave to file an amended complaint, the opposition thereto, and the reply, it hereby is

ORDERED, that the motion is denied.

Upon consideration of the defendant USAir’s motion for summary judgment, the plaintiff Russell Anderson’s motion for summary judgment, the respective responses thereto, and the entire record herein, it hereby is

ORDERED, that USAir’s motion for summary judgment on all claims is granted. The Clerk shall enter judgment for USAir and dismiss with prejudice all claims brought against it. It hereby further is

ORDERED, that Mr. Anderson’s motion for summary judgment is denied.

SO ORDERED.

      . The rulemaking procedure is discussed in extensive detail by the United States Court of Appeals for the District of Columbia Circuit in Paralyzed Veterans of America v. C.A.B., 752 F.2d 694, 696-703 (D.C.Cir.1985).

      . Section 404(b) had been held to provide a private right of action for discriminatory conduct in air transportation, but Congress repealed that section with no suggestion that thereby a private cause of action had been created under section 404(a). See Nader v. Allegheny Airlines, 512 F.2d 527, 537 (D.C.Cir.1975), rev'd on other grounds, 426 U.S. 290, 96 S.Ct. 1978, 48 L.Ed.2d 643 (1976).


author: CACHERIS, District Judge.

text:
    SPECIALIZED CARRIERS AND RIGGING ASSOCIATION, Plaintiff v. Harold C. KING, Commissioner, Virginia Department of Highways and Transportation, R.L. Suthard, Superintendent, Virginia Department of State Police, Defendants.
    Civ. A. No. 85-0711-A.
    United States District Court, E.D. Virginia, Alexandria Division.
    Oct. 1, 1985.
    Joseph L. Steinfeld, Jr., Robert B. Walker, Washington, D.C., for plaintiff.
    John M. McCarthy, Walter H. Ohar, Nan-cyellen Keane, Asst. Attys. Gen., Richmond, Va., for defendants.
   MEMORANDUM OPINION

CACHERIS, District Judge.

Plaintiff challenges the constitutionality of § 46.1-267 of the Code of Virginia which requires amber flashing lights, visible for at least 500 feet to be placed on top of any vehicle engaged in either escorting, or towing overdimensional materials, equipment, boats, or manufactured housing units. Va. Code Ann. § 46.1-267 (Cumm.Supp.1985). The statute also requires that a flashing light be mounted on the upper rear end of the overdimensional vehicle or load. The effective date of the statute was July 1, 1985. On June 26, 1985, the court granted plaintiffs Motion for a Temporary Injunction and then held a full hearing on the merits on July 23, 1985. For reasons set forth below, judgment is entered in favor of the defendants.

I

Findings of Fact

Plaintiff, Specialized Carriers & Rigging Association (“SC & RA”), is a not-for-profit association incorporated in the District of Columbia and authorized to do business in the Commonwealth of Virginia. SC & RA is composed of approximately 530 member companies, which are engaged in the transportation and rigging of heavy and oversized machinery, equipment, building materials and supplies.

Defendant, Harold C. King, is Commissioner of the Virginia Department of Highways and Transportation. He is responsible for issuing permits governing the use of highways and adjacent areas and thus for enforcing § 46.1-267 of the Code of Virginia.

Defendant, R.L. Suthard, is Superintendent of the Virginia Department of State Police, and as such is chief law enforcement officer in the Commonwealth of Virginia. State police officers under the Superintendent are charged with the enforcement of § 46.1-267 of the Code of Virginia.

Chapter 248 of the 1985 Virginia Acts of Assembly amended § 46.1-267 of the Code of Virginia to require the use of high intensity amber flashing lights visible for at least 500 feet on overdimensional loads. Pertinent portions of the statute are set forth as follows:

§ 46.1-267. Other permissible and required lights; police and fire-fighting vehicles, emergency vehicles, etc.; exceptions; penalty. — Any motor vehicle may be equipped with no more than two fog lamps, one passing lamp, one driving lamp, two side lamps of not more than six candlepower; interior light of not more than fifteen candlepower; vacant or destination signs and one steady-burning, white lamp for the nighttime illumination of exterior advertising, emitting a diffused light of such an intensity as not to project a glaring or dazzling light on vehicles operated as public carriers; and signal lamps____ High intensity amber flashing lights, visible for at least 500', as prescribed by the Superintendent, shall also be required for use on any vehicle which is engaged in either escorting, or towing overdimensional materials, equipment, boats or manufactured housing units by authority of a highway hauling permit issued pursuant to § 46.1-343 of the Code of Virginia. Such lights shall be mounted on the top of the escort and tow vehicles and on the upper rear end of the overdimensional vehicle or load for maximum visibility, front and rear.

Va.Code Ann. § 46.1-267 (Cumm.Supp. 1985).

On January 22, 1985, Chapter 248 was introduced in the Virginia General Assembly as House Bill 1643. It was unanimously reported by the House Committee on Roads and Internal Navigation and unanimously passed the House of Delegates. Subsequently, it was referred to the Senate Committee on Transportation for action. It was reported, by the Committee and passed the Senate, both unanimously. Governor Robb approved House Bill 1643 on March 14, 1985. (Defendants’ Exhibit No. 12).

House Bill No. 1643 was discussed by the Virginia General Assembly in open committee meetings. Representatives of the trucking industry and other interested groups were present at these meetings and voiced no opposition to the bill. (Testimony of J. Lynwood Butner).

Prior to the passage of House Bill No. 1643, § 46.1-267 of the Code of Virginia required the use of high intensity amber lights on any vehicle engaged in the towing of a manufactured housing unit and also on the upper rear end of such unit being towed. Amber flashing lights were not required on escort vehicles prior to passage of House Bill 1643, and amber lights were not required on manufactured housing units until passage of Chapter 311 of the 1978 Virginia General Assembly. (Chapter 311, 1978 Acts).

House Joint Resolution 41 of the Virginia General Assembly authorized the study of the movement of 14 foot wide manufactured housing units in Virginia in 1976. The study found that there were no major differences between the traffic and safety characteristics of 12-foot units and those units of 14-feet. The study noted that of 41 states questioned, 35 states required amber flashing lights on the unit or escort vehicle or both. The study also reviewed the manueverability problems of the 12 and 14-foot manufactured housing units. (Defendants’ Exhibit No. 9 — 1976 Evaluation of the Movement of Manufactured Housing Units).

Since 1976, state officials have recommended that the General Assembly require the use of amber flashing lights on all overdimensional vehicles or loads, as part of the administrative and statutory regulation of these oversize vehicles. The use of amber flashing lights was discussed at seminars held by the Virginia Department of Highways and Transportation for the trucking industry in 1979. The members of the Military-Civilian Transportation Safety Workshop have annually recommended, since 1981, the statutory enactment of the amber flashing light requirement for all overdimensional vehicles based on public safety concerns. (Testimony of Parker, Hanna-Defendants Exhibits-Workshop Minutes, 1979 Hauling Conference).

In April 1985, the Permit Section of the Virginia Department of Highways and Transportation sent out a notice and an administrative interpretation of Chapter 248 to various persons who received overdi-mensional permits from the Department. Also, advertisements were placed in newspapers throughout the Commonwealth of Virginia giving notice of the enactment of the new law.

During the 1985 session of the General Assembly, the Virginia Legislature declined to pass legislation increasing vehicle width from 96" to 102" and overall vehicle length from 55' to 65'. The study prepared by the Virginia Department of Highways concluded that vehicles exceeding 56 feet in length and 102 feet in width were not compatible with pavement widths less than 24 feet. The Virginia highways, excluding the interstate system and selected stretches of federal-aid primary highways designated in accordance with the federal Surface Transportation Assistance Act of 1982, would be burdened by the use of such larger vehicles and highway safety would diminish. (Defendants’ Exhibit No. 15 — Impact Analysis of Truck Length and Width Increases on Virginia Roads).

An overdimensional load, truck, tractor, or semi-trailer is one that exceeds certain prescribed height, length and weight restrictions. According to the Virginia Code, any truck, tractor or semi-trailer which exceeds 102" in width on a federal highway, 96" in width on a state highway, 13'6" in height, and 40' in length or for a combination of vehicles 60' in length will be considered overdimensional. Va.Code Ann. § 46.1-328, 329, 330 (Cumm.Supp.1985). Overdimensional vehicles and loads create safety problems and are a burden on Virginia highways. In addition, the safety considerations that make amber flashing lights necessary on 14 foot manufactured housing units are equally applicable to other overdimensional vehicles or loads.

49 U.S.C.A. § 2316 (Supp.1985) requires that the widest commercial vehicle sanctioned by federal law for operation on interstate highways and designated federal-aid primary highways in Virginia is 102 inches. All loads of a width in excess of this travel the highways of the nation under the particular permit systems of the various individual states. 49 U.S.C.A. § 2316(c) (Supp.1985) allows each state to issue permits for overdimensional vehicles and loads.

There is no uniformity of state regulations governing permit standards for over-dimensional loads. (Testimony of Parker, Jacobs). Approximately ten percent of motorists are illiterate and, therefore, cannot read a sign, such as, “overdimensional load”, etc.

Virginia interprets its statute to require that the flashing amber lights be affixed to the upper portion of the rear of the overdi-mensional vehicle or load rather than the top of the vehicle or load. Therefore, there is some flexibility in interpretation.

The Department of Transportation’s Federal Motor Carrier Safety Regulations require that most exterior lights be steady burning. 49 C.F.R. § 393.25(f).

An amber flashing light would not decrease highway safety by either causing motorists confusion or inappropriate vehicle operator response. Furthermore, amber flashing lights on overdimensional loads are appropriate warning devices during the daylight hours.

Accidents have occurred in Virginia with vehicles operating overdimensional loads.

It is routine for overdimensional vehicles to stop at the next state’s border in order to meet the different permit requirements.

It would cost two hundred twenty dollars ($220.00) to outfit a truck cab and oversized load with equipment mandated by § 46.1-267. (Stipultion of the parties).

II

Preemption

The first inquiry is whether § 46.1-267 of the Va.Code has been preempted by 49 C.F.R. § 393.25(f) (1984). SC & RA argues that § 393.25(f) preempts § 46.1-267 of the Va.Code. Defendants argue that the Federal Highway Administration has promulgated regulations in the area of lighting devices but has not preempted the entire subject matter.

The theory of preemption is that so long as Congress acts within an area delegated to it, as under the Supremacy Clause, state laws which are contrary are preempted.

The principal to be derived from our decision is that federal regulation of a field of commerce should not be deemed preemptive of state regulatory power in the absence of persuasive reasons — either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained.

Florida Lime and Avocado Growers v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963).

In the recent case of Tousley v. North American Van Lines, 752 F.2d 96 (4th Cir.1985), it was held that “... in the absence of express preemption by Congress, the examination of any preemption issue involves a two-tier inquiry: (1) whether Congress in passing the statute intended to occupy the field, or (2) whether the state statute is void because it conflicts with federal regulation. See Silkwood v. Kerr-McGee Corp., [464 U.S. 238] 104 S.Ct. [615] at 621 [78 L.Ed.2d 443] (1984).”

In H.P. Welch Co. v. New Hampshire, 306 U.S. 79, 59 S.Ct. 438, 83 L.Ed. 500 (1939), the Supreme Court held that the predecessors of the Federal Motor Carrier Safety Regulation did not preempt state regulation in the same field.

49 C.F.R. § 393.2 (1984) states “Nothing contained in Parts 390 through 397 of this subchapter shall be construed to prohibit the use of additional equipment and accessories ...” Also, 49 C.F.R. § 390.30 (1984) provides in the regulation that “[p]arts 390-397 of this subchapter are not intended to preclude States or subdivisions thereof from establishing or enforcing State or local laws relating to safety, the compliance with which would not prevent full compliance with these regulations by the subject thereto.” It appears that states may also pass their own regulations.

It should also be pointed out that the widest width required under any federal law is a vehicular dimensional width of 102 inches as authorized by the Surface Transportation Assistance Act. 49 U.S.C.A. § 2316 (Supp.1985). In this case we are dealing with overdimensional loads which are 12 to 14 feet wide. Each individual state sets safety requirements through permits for overdimensional loads. 49 U.S. C.A. § 2316(c) (Supp.1985). The standard lane of travel is 12 feet and they were not designed to carry a 14 foot load. Therefore, a state may impose additional equipment requirements.

The court concludes that 49 C.F.R. § 393.25(f) (1984) does not preempt Va. Code Ann. § 46.1-267 (Cumm.Supp.1985).

Ill

Commerce Clause

A state may regulate the use of its highways in the interest of public safety. See Smith v. State of Alabama, 124 U.S. 465, 8 S.Ct. 564, 31 L.Ed. 508 (1888).

State regulations affecting interstate commerce will be upheld by a court if the regulation is rationally related to a legitimate state end, and secondly, if the regulatory burden and discrimination imposed on interstate commerce is outweighed by the state interest in enforcing the regulation. Southern Pac. Co. v. State of Arizona, ex rel Sullivan, 325 U.S. 761, 65 S.Ct. 1515, 89 L.Ed. 1915 (1945); Cities Service Gas Co. v. Peerless Oil & Gas Co., 340 U.S. 179, 186-87, 71 S.Ct. 215, 219-220, 95 L.Ed. 190 (1950).

There is a strong presumption of validity that surrounds a state safety regulation and the burden of overcoming a strong presumption rests on the plaintiff. Raymond Motor Transportation, Inc. v. Rice, 434 U.S. 429, 444, 98 S.Ct. 787, 795, 54 L.Ed.2d 664 (1978).

The federal statutes and regulations do not address vehicular width dimensions greater than 102". In the case at bar, we are dealing with overdimensional loads that have 12 to 14 foot widths. Therefore, Virginia may impose reasonable requirements which are outside federal regulations.

The court has to balance the constitutionality of the safety regulation against the burden on interstate commerce. There is no evidence that Va.Code Ann. § 46.1-267 (Cumm.Supp.1985) is discriminatory in effect or intent on interstate commerce. Furthermore, at the time the court entered the Preliminary Injunction, the court reversed judgment on the issue of highway safety. The court is now satisfied that this is a safety regulation. See South Carolina Highway Dept. v. Barnwell Bros., 303 U.S. 177, 58 S.Ct. 510, 82 L.Ed. 734 (1938). The safety interests of the state far outweigh the slight burden on interstate commerce, and therefore, this court finds Va.Code Ann. § 46.1-267 (Cumm. Supp.1985) does not violate the Commerce Clause.

IV

Conclusions of Law

The court has jurisdiction over this cause of action.

49 C.F.R. § 393.25(f) (1984) does not preempt Va.Code Ann. § 46.1-267 (Cumm. Supp.1985).

Va.Code Ann. § 46.1-267 (Cumm.Supp. 1985) does not unduly burden interstate commerce.

The plaintiffs Preliminary Injunction issued by this court on June 26, 1985, should be dissolved.

An appropriate Order shall issue.

ORDER

In accordance with the accompanying Memorandum Opinion, it is accordingly

ORDERED:

(1) that Judgment be, and it hereby is, ENTERED in favor of the defendants, and plaintiffs Complaint is DISMISSED with prejudice;

(2) that the Preliminary Injunction issued by this court on June 26, 1985, be, and the same hereby is, DISSOLVED;

(3) that the Clerk shall forward certified copies of this Order together with the accompanying Memorandum Opinion to all counsel of record.