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All Reporters → f-supp → Volume 279

Opinions in f-supp Volume 279

OPINION This matter came before the court upon the complaint of the National Labor Relations Board (hereinafter referred to as “Board”), seeking enforcement of a subpoena duces tecum, directed to defendant Martin S. Nadler as President of Q-T Shoe Manufacturing Company, Inc., (hereinafter referred to as “Q-T Shoe”), or, in the alternative a mandatory injunction compelling defendant Q-T Shoe to pr...
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MEMORANDUM OF DECISION The plaintiff is a citizen and resident of the State of North Carolina, and the defendant is an insurance company, incorporated under the laws of the State of South Carolina. On May 10, 1965, Larry F. Blythe, husband of the plaintiff, Linda G. Blythe, purchased a life insurance policy Number 025797 from the defendant, with a face value of $10,000 and a double indemnity ride...
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MEMORANDUM DECISION AND ORDER These consolidated actions were initiated by plaintiff taxpayers to recover alleged overpayment of income taxes for the calendar years 1955 and 1958 in the amounts of $7,039.47 and $15,616.54, respectively, in Civil Action 41263, and $5,073.78 and $21,385.25, respectively, in Civil Action 41264, plus interest. The controversy arose when the government redetermined the...
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(dissenting). I respectfully dissent from the conclusion of the majority that the District of Columbia statute prescribing a residence requirement of one year for eligibility for receiving public assistance is unconstitutional, as transgressing the Equal Protection of the Laws Clause of the Fourteenth Amendment, and as interfering with freedom of travel. In my opinion the enactment is a valid exer...
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OPINION Plaintiffs move for an order pursuant to 28 U.S.C. §§ 2281 and 2284 convening a three-judge court, and defendants Mario A. Procaccino, individually and as Comptroller of the City of New York; Roy M. Goodman, individually and as Director of Finance of the City of New York; other officials of the City of New York; the members of the New York City Board of Higher Education; and the m...
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MEMORANDUM Dealing with the question left open in the court’s findings and conclusions of October 20, 1967, as amended on November 21, 1967, 277 F.Supp. 484, plaintiff has applied for an award of attorneys’ fees in a substantial amount. Defendant opposes the application, urging that the circumstances and outcome of the several issues are such that each party should be left to bear its own counsel...
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MEMORANDUM This is a pro se application for a writ of habeas corpus. 1 Robert V. Williams, the relator, alleges that refusal of the trial court to grant a request for withdrawal of his previously entered guilty plea deprived him of his right to a speedy trial as guaranteed by the Sixth Amendment. He further suggests that the denial of his application to appeal to the New York State Court of A...
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RULING ON THE MERITS Plaintiffs instituted this action pursuant to 42 U.S.C. § 1971 et seq. (Voting Rights Act) to have the general election in Ward 4, Madison Parish, Louisiana, held on November 8, 1966, declared null and void insofar as the office of school board member in that ward is concerned. In general, the complaint alleges that defendant Post and his deputies, acting in their officia...
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MEMORANDUM The above action relates to claims by plaintiffs in the nature of product liability based upon the contention that a certain product known as “Little Lady Toilet Water,” when applied by a three-year-old infant, Robin Sue Oxman, above named, injured the said infant’s left eye. *66 I. Three causes of action are brought "by the guardian ad litem, Herbert Oxman, upon behalf of the infant...
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ORDER This action on an account was commenced by plaintiff against defendant on August 5, 1966 seeking to recover $12,-700.49 allegedly due for certain quantities of fish delivered to defendant’s seafood markets and for which defendant has refused to pay upon demand. Defendant’s answer, after setting out a general denial, admits plaintiff sold fish to him over a period of time but denies that he ...
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OPINION AND ORDER Defendant, Alexander M. Lybrand, was classified a conscientious objector opposed to participation in war in any form (Class I-O). He was ordered by his local draft board to report for civilian work in lieu of induction into the Armed Forces. Having failed to report, he was indicted and tried by the Court for knowingly failing to comply with his local draft board’s order....
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DECISION and ORDER Plaintiffs have moved to transfer this action to the western district of Oklahoma pursuant to 28 U.S.C. § 1404(a). Plaintiffs sue for damages allegedly caused to a pumping station in Oklahoma and contend that such damage was caused by the escape of liquid chlorine through a defective weld in a steel pressure vessel manufactured by the defendants, Pressed Steel Tank Company. *85...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT The within action was instituted by the United States for the purpose of quieting title to certain land hereinafter described, to evict the defendant occupants of the land, and for damages claimed to have resulted from the use and occupancy of the land by the defendant occupants. The land in controversy is described as follows: The So...
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A ship under construction, launched and lying in navigable waters, but not yet completed, is not a vessel in navigation. Hence a shipyard worker injured aboard it is not entitled to a warranty of seaworthiness. But it is afloat, and accidents happening on it occur on navigable waters. Therefore, the admiralty jurisdiction of this Court extends to tort claims arising from such accidents. Thus, i...
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OPINION This action is a claim for a refund of federal income taxes paid in 1955 by the plaintiff, Daniel J. Rock. The basis is a loss in the year 1957 which plaintiff proposed to carry back to the year 1955. The defendant, United States of America, has moved pursuant to Rule 12(b) (1) of the Federal Rules of Civil Procedure for an order dismissing this complaint on the ground that this court...
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OPINION The problem presented in this case is whether a person who receives copies of documents that have been purloined from another and uses the information contained in them knowing that the originals have been purloined, is liable for damages to their owner. This question is answered in the affirmative to the extent that an action for damages lies under such circumstances. The Court express...
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Plaintiff, Max B. Goldblatt, a qualified voter residing in Dallas and a candidate for City Councilman, Place 3, District C, in the April 4, 1967, City Council elections, in his Original Complaint demanded (1) that a preliminary injunction be issued by the three-judge court convened restraining the City of Dallas from enforcing the provisions of Section 21 of the Charter of the City of Dallas provi...
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MEMORANDUM DECISION These thirteen actions have been, by stipulation, consolidated for determination as, for all practical purposes, the legal questions and factual situations are identical. Plaintiffs are corporations engaged in transportation of property in regulated interstate and foreign commerce as motor carriers. Defendant, Interstate Commerce Commission (herein referred to as the I.C.C. or...
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OPINION The defendant, Allan Michael Walsh, is charged in a two-count indictment with having violated the Universal Military Training and Service Act, 50 App.U.S.C. § 462. The first count charges that he willfully failed and refused on June 16, 1966, to comply with. an order of his local draft board to submit to an armed forces preinduction physical examination. The second count charges that he...
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The third-party defendants move pursuant to Rule 12(c) of the Federal Rules of Civil Procedure for an order dismissing the third-party complaint for failure to state a claim upon which relief can be granted, and for such other relief as may be just. Argument on these motions was originally heard on August 10, 1966, at which time none of the parties raised any problem relating to the choice of t...
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OPINION This case comes before the Court upon the petitions for summary judgment filed by both the plaintiff, Jimmie L. Ford and also by the defendant, Secretary of Health, Education and Welfare. The matter at issue is the correctness of the administrative determination by the Secretary of Health, Education and Welfare that Jimmie L. Ford is not totally disabled within the meaning of the Social Se...
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Memorandum: This is a suit charging the defendant with negligence arising out of a motor vehicle collision near Huntsville, Texas. The plaintiff is a citizen of Texas and the defendant is a citizen of New York. The defendant was served pursuant to Art. 2039a, Vernon’s Ann.Tex.Civ.St. Suit was originally filed in the District Court of Walker County, Texas and was subsequently removed to this cou...
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OPINION A petition has here been filed by Donnie Ray Smearman pursuant to the provisions contained in 28 U.S.C. § 2255.1 The petitioner complains that he was given a longer term of incarceration under the Youth Corrections Act than he would have received as a maximum sentence under the statutory crime to which he pleaded guilty. The petitioner was convicted, upon a plea of guilty, for violation of...
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ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS The request of R. D. Pendleton for leave to file his petition for writ of ha*138beas corpus in forma pauperis is granted. 28 U.S.C. § 1915(a) (1964). Petitioner is serving sentences in state prison for two separate convictions for narcotics offenses, and he now attacks the validity of each conviction. The convictions are now considered separately be...
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*140OPINION Plaintiff has moved to set aside the verdict and for an order granting a new trial. Rules 50 and 59, F.R.Civ.P. Plaintiff’s counsel also moves for an order specifically permitting him to interview each trial juror in this case. This suit for damages, pursuant to the Federal Employers’ Liability Act, 35 Stat. 65 (1908), as amended, 45 U.S.C. § 51 (1964), was commenced before the court a...
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MEMORANDUM AND ORDER This matter came before the Court on defendants' pretrial motion to suppress weapons, ammunition, and a ski mask seized from them, on the ground that the search was made without a warrant and without probable cause. The Court has heard testimony, oral argument, and has considered defendants’ supplemental memorandum. According to the testimony, the event in question occurred su...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This is an action by the K. O. Lee Company, Inc.,1 against the Government for a refund of disputed income taxes paid under protest and pursuant to a demand for additional income taxes by the Collector of Internal Revenue in his assessment against Lee on January 29, 1963, limited however in this part2 of its case to the increase in the tax by reason of the Co...
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DECISION AND ORDER Petitioner has filed this suit pro se and in forma pauperis, alleging that jurisdiction is based upon 28 U.S.C. § 2201. He claims a violation of his rights under the 8th and 14th amendments. Petitioner is an inmate of the Wisconsin state prison at Waupun. He alleges that he is afflicted with an unknown dis *150 ease or condition of the foot and that he has been unable to ...
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The District Director of the Immigration and Naturalization Service seeks summary judgment in this action for a declaratory judgment brought by two alien crewmen. It is undisputed that both plaintiffs are natives and citizens of China who last resided in Hong Kong. Both carried Hong Kong seamen’s identity books. Both boarded foreign vessels as crewmen — one in England, the other in Japan. When the...
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OPINION AND ORDER The relator was convicted and is presently confined for the unlawful sale of narcotic drugs.1 At the time of sentencing, the relator was on parole for a conviction in 1939. He was returned to prison as a parole violator on March 31,1964. Following the completion of his 1939 sentence he was to begin serving his 1964 sentence. Following his recommitment, the relator was granted a ...
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ORDER Plaintiff seeks permission to proceed in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff alleges that the defendant, an attorney at law, was appointed on April 7, 1965, by Walworth county circuit judge Ernst John Watts to assist him in prosecuting his appeal from a conviction under Wis.Stat. § 943.24(1). From that date until plaintiff’s release from custo...
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ORDER DISMISSING COMPLAINT The court will treat the complaint as one aménded to name the United States of America as the proper party defendant. It will treat the complaint as one for a refund of taxes only. It will treat the parties plaintiff as having standing to sue. And for the purposes of this order the court will assume, without deciding, that the belief in nonpayment of taxes for war purpos...
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Plaintiff has filed protest contesting the classification of certain merchandise described in the entry invoices as galvanized conductor pipe elbows, liquidated by the collector as entered under TSUS item- 610.80, as iron or steel pipe fittings, not otherwise specified, dutiable at 19 per centum ad valorem. Plaintiff claims that the pipe elbows are not pipe fittings but a form of iron or steel pip...
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MEMORANDUM ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Plaintiff moves for summary judgment in this declaratory judgment suit for construction of a fidelity savings and loan blanket bond issued by the defendant, insuring against defalcations by the officers of the Beverly Savings and Loan Association. The Bank’s obligations were insured by the plaintiff, which assumed them when the Bank li...
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FINDINGS OF FACT I. THE PARTIES AND JURISDICTION 1. The plaintiff, Maxon Premix Burner Company, Inc. is a corporation organized and existing under the laws of the State of Indiana, and has its offices and principal place of business at 201 East 18th Street, Muncie, Indiana (Admission Nos. 1, 2). 2. Plaintiff manufactures and sells industrial gas and oil burners, and associated blowers, mixe...
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OPINION In this action the plaintiffs, Kenneth R. Jones, James Mickey Booth, and Frederick Brooks, filed their complaint on behalf of themselves and as a class action on behalf of others similarly situated, against the Tennessee State Board of *193 Education, Tennessee A. & I. State University, the Faculty Advisory Committee of said University, and other state and university ...
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OPINION This is an action to enjoin a Joint Committee of the Tennessee General Assembly from proceeding into an investigation of allegedly subversive activities on the part of the Highlander Educational and Research Center Inc. (hereinafter referred to as the “Highlander Center.”) Although the Court, as indicated in this opinion is compelled to conclude that the plaintiffs are entitl...
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MEMORANDUM OPINION After petitioner’s arrest and conviction in the Police Court of Green-ville, Mississippi, for breach of the peace (Miss.Code Ann. § 2089.5) and resisting arrest (Code of Ordinances, City of Greenville, § 252 Rev.Ed.1938), there was an appeal to the County Court of Washington County and a de novo separate jury trial on each of these charges with verdicts of guilty; an appeal to t...
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OPINION and JUDGMENT This case comes before the court upon a petition for a writ of habeas corpus by Earl Lester Austin, a state prisoner, pursuant to the provisions of 28 U.S.C. § 2241 and is filed in forma pauperis. Petitioner is currently serving a life sentence pursuant to his conviction of robbery in the Corporation Court for the City of Lynchburg, Virginia on December 12, 1966. Petitioner wa...
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OPINION AND ORDER This is an application by John A. Lassiter, a state prisoner, for a writ of habeas corpus in forma pauperis. Lassiter was convicted of armed robbery at the April 1960 Term of the Superior Court of Hertford County and was sentenced to a term of eighteen to twenty years imprisonment. At the April 1965 Session of the Superior Court of Hertford County his conviction was vacated in po...
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MEMORANDUM On March 1, 1963, the Tennessee Valley Authority (the TVA) entered into a contract (No. 63P-42-T6) with Cox Coal Company (Cox) of Jellico, Tennessee, for the purchase of certain weekly coal tonnages. Deliveries were to begin on April 15, 1963. It was specified in Paragraph 10 of the contract, “The Attached Terms and Conditions of Bid constitute parts of this contract.” Paragraph 9 of t...
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On June 4th, 1963 Pioneer Oil & Gas Co., Inc. filed a petition praying for relief under Chapter X of the Bankruptcy Act (11 U.S.C.A. §§ 501-676). The only plan of reorganization subsequently submitted was that submitted by the debtor. On October 16, 1963, Judge Robert A. Ainsworth, then a district judge and now a judge of the Fifth Circuit Court of Appeals, disapproved the plan submitted by the de...
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MEMORANDUM The Court of Appeals by order dated December 7, 1966, remanded this writ for an evidentiary hearing on the issue of illegal search and seizure. It appeared on our calendar in Part I on August 21st and we held the hearing on August 30, 1967. Although relator’s counsel called Detective McDonnell, the arresting officer, as his first witness and reviewed with him the pertinent events of Mar...
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MEMORANDUM OPINION By its complaint, First National Bank of Shreveport (Bank) seeks to recover the accelerated unpaid balance of a promissory note which it alleges was executed on March 7, 1966, at Shreveport, Louisiana, for value by the defendant, A. R. Marcinkowska. The note is in the principal amount of $11,705.40 and is payable to bearer, without interest except after maturity, in thirty-six m...
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MEMORANDUM OPINION AND ORDER The indictment herein charges willful and knowing mutilation by burning of a draft card contrary to 50 U.S.C.App. § 462(b) (3). The second count charges that on the same day defendant willfully and knowingly failed and refused to possess a draft card contrary to the same section. The defendant has filed numerous motions (a total of 21) to dismiss the indictment. Motio...
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MEMORANDUM This action was instituted on November 18, 1964, to recover damages for injuries sustained on November 24, 1962. The gist of the complaint is that plaintiff was attempting to relight an automatic gas hot water heater when there was a sudden explosion and plaintiff was severely injured. The automatic gas water heater was manufactured by the defendant in 1955. Two years late...
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OPINION AND ORDER This case arises out of the entry of the United States into the installment credit business.1 On April 20, 1966 John Calvin Barlean and Betty Lou Barlean filed a petition in bankruptcy. On May 10, 1966 the first meeting of creditors was held and the Barleans were granted permission to pay the filing fees of $100.00 in installments. The last installment was due October 20, 1966. T...
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OPINION AND ORDER This is a suit under the Federal Tort Claims Act brought for the redress of a sailor’s death by his widow as administratrix of his estate. Plaintiff alleges that decedent while in the Philadelphia Naval Hospital died because of the negligence of the Hospital’s agents from the time of his admission, March 12, 1966. The Government has moved for summary judgment, citing Feres v. ...
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ORDER The Secretary of Labor has filed his Complaint in this case under Section 17 of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. § 201 et seq.), hereinafter referred to as the Act. The Secretary seeks an injunction restraining defendants from violating, among other things, the overtime provisions of the Act and a judgment restraining the de*265fendants from withholding overtime co...
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ORDER TRANSFERRING PETITION FOR HABEAS CORPUS At the time of filing his petition for habeas- corpus with this court, Richard Laue was imprisoned at San Quentin (located in this district) pursuant to sentence of the Superior Court of the State of California in and for the County of Los Angeles. Thereafter, the state authorities transferred him to the California Conservation Center at Susan-ville...
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MEMORANDUM Plaintiff’s motion to remand raises the troublesome question of applying the phrase “separate and independent claim or cause of action” contained in the removal statute, 28 U.S.C. § 1441(c). The action was started in the Supreme Court of the State of New York, County of New York, and removed to this court by two of the three defendants, The Pennsylvania Railroad Company and Lloyd Brase...
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In this action for copyright infringement, defendants move for summary judgment on the ground that the Certificate of Copyright Registration No. Gp52281 for the work in question, a pierced earring tree in the form of a sculpture of a flower, stem and leaves, was issued to “Alart, Inc.”, a non-existent corporation, rather than to “Alart Associates, Inc.”, a New York corporation named as plaintiff ...
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Memorandum of Decision This is a suit to set aside an order of the Interstate Commerce Commission which required the cancellation of cer*272tain tariff provisions1 which had been proposed by the plaintiffs in this action. The plaintiffs Baltimore and Ohio Chicago Terminal and the Indiana Harbor Belt Railroad Company are switching or terminal carriers within the Chicago switching district. The rem...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW The above entitled cause came on regularly for trial and the Court having duly considered the evidence and being *276fully advised in the premises now finds the following: FINDINGS OF FACT I. Petitioner was charged, tried by a jury, and convicted of burglary with explosives in the District Court of Reno County, Kansas, which verdict was rendered on the 17th ...
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OPINION Plaintiff has brought this two-count action for redress of the alleged depriva *285 tion, under color of Pennsylvania law, of rights, privileges or immunities secured to her by the Fourteenth Amendment of the Constitution of the United States and for recovery of damages for the alleged conspiracy of defendants to deprive her of the equal protection of the laws or of e...
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MEMORANDUM OPINION AND ORDER A three-judge Court having been constituted herein under the authority of 28 U.S.C. § 2281; and it now appearing to such Court that the private act of the General Assembly of Tennessee under which the defendants are sought to be enjoined herein is one of limited application, concerning only Warren County, Tennessee and no other county or other local jurisdiction of the...
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MEMORANDUM OPINION AND ORDER This is an action by certain voters of Warren County, Tennessee, claiming that their federally-protected rights have been, and are being, circumvented by the malfeasance and current nonfeasance of the General Assembly of Tennessee and the Quarterly County Court of that county by the continuing malapportionment of the membership of the County Board of School Commission...
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This is a motion in the nature of a writ of error coram nobis (28 U.S.C. § 1651(a)) for an order setting aside a judgment of this Court of conviction of Leo Carlino (“movant”) and Miss Smart Frocks, Inc. (the “corporation”), a New York corporation of which movant was an officer, director and stockholder. The judgment was entered on December 9, 1962 after pleas of guilty by movant and by the corpor...
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MEMORANDUM This matter came on to be heard on defendant’s motion to suppress evidence obtained by inspectors of the United States Food and Drug Administration from the defendant. The evidence includes certain statements made by defendant to an inspector in response to questions addressed to him (defendant), certain information gleaned by the inspector from examining copies of invoices exhibited to...
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Memorandum, Order By a supplemental report and order on reconsideration and further hearing in F.D.No. 21989, Pennsylvania Railroad Company — Merger — New York Central Railroad Company, 330 I.C.C. 328, served June 12,1967, the Interstate Com*305merce Commission authorized consummation of the merger of the Pennsylvania Railroad Company (PRR) and the New York Central Railroad Company (NYC) on the ...
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The United States of America and the Interstate Commerce Commission have moved this Court to establish an expedited briefing schedule in this action; appended to their motion is a copy of the Amended Pre-Trial Order of the District Court for the Western District of Virginia in Norfolk and Western Railway Co. v. United States of America, Civil Action No. 67-C-51-R. We note the statement of the two ...
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Memorandum on Motion for Injunction The United States of America and the Interstate Commerce Commission have moved this Court to enjoin (1) the Norfolk and Western Railway Company from taking any further action' in Civil Action No. 67-C-51-R, Norfolk and Western Ry. v. United States, before the United States District Court for the Western District of Virginia; and (2) the City of Scranton and Mil...
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We have before us, on final hearing, actions to enjoin the enforcement of orders of the Interstate Commerce Commission in F.D. 21989 and 21990, see 327 I.C.C. 475, 328 I.C.C. 304, and 330 I.C.C. 328, authorizing the merger of Pennsylvania Railroad Company (PRR) and New York Central Railroad Company (NYC) into a single company (Penn-Central), and in F.D. 21510, see 330 I.C.C. 780 and 331 I.C.C. ...
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*357DECISION This action for breach of contract is before the court on trial solely of the preliminary issue of interpretation of the agreement which relates to royalty payments under a license of patented invention covering clothes drying machines manufactured and sold by defendant.1 Imperial Appliance Corporation (“Imperial”) as licensor, and Hamilton Manufacturing Company (“Hamilton”) as licens...
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This is a derivative action brought by minority stockholders of General Motors Corporation (General Motors) against E. I. du Pont de Nemours & Company (du Pont) claiming damages flowing from alleged violations of §§ 1 and 2 of the Sherman Act 1 (15 U.S.C. §§ 1, 2) and breach of common law fiduciary duty. 2 It is alleged that, by reason of du Pont’s stock interest in Genera...
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In Consolidated Proceedings for the Reorganization of Corporations This plenary action was brought in 1962, pursuant to Chapter X of the Bankruptcy Act by the trustees in reorganization of certain corporations once controlled by Lowell Birrell. It was dismissed with prejudice by this Court in April, 1966, following approval of a settlement in a written opinion dated April 13, 1966. The case was s...
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279 F.Supp. 392 (1968) Thomas J. DOMINGUEZ, Plaintiff, v. NATIONAL AIRLINES, INC. and Air Line Employees Association, International, an unincorporated association consisting of seven or more members, Defendants. No. 66 Civ. 1081. United States District Court S. D. New York. February 8, 1968. *393 Herbert A. Simon, Valley Stream, N. Y., for plaintiff. Hoffman, Kemper & Johnson, Miami, Fla., fo...
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*393OPINION Plaintiff brings this action for damages for wrongful discharge and for reinstatement of his former employment with defendant National Airlines, Inc. (the airline). Federal question jurisdiction is invoked under 28 U.S.C. § 1337 and the Railway Labor Act, 45 U.S.C. § 151 et seq., based on an allegation that plaintiff was discharged in violation of the Act for engaging in union activit...
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MEMORANDUM OPINION AND ORDER This matter came on for trial to the Court without a jury on December 28, 1967, upon an agreed Statement of Facts contained in the Second Amended PreTrial Order. The Court heard the argument of counsel, considered the written Briefs filed herein, and is now fully advised. The Agreed Statement of Facts without the attached exhibits is as follows: “That between Oc...
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MEMORANDUM A jury verdict has been returned in this action against the defendant, Iowa-Illinois Telephone Company (Iowa-Illinois), and judgment in the amount of 150,122.51 has been entered thereon in favor of the plaintiff, Homer Mayhew and against said defendant. Iowa-Illinois’ motion to set aside the verdict and judgment, or in the alternative for a new trial, has been denied and the Court must...
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ORDER DENYING MOTION TO SET BAIL PENDING APPEAL We explore this problem in some detail because of the increasing importance it has assumed under the provisions of the relatively new Criminal Justice Act.1 The situation is this: Criminal trial has been had, conducted either by assigned or retained counsel (in the case before us, retained counsel was employed) and jury verdict of guilty returned. T...
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OPINION Three motions are before the Court: (1) a motion by defendant Union Carbide, under Fed.R.Civ.P. 56(e), based upon the Statute of Frauds, for summary judgment as to the first cause of action (in which Union Carbide is the sole defendant); (2) a motion by defendant Cooper, based upon the Statute of Frauds, for summary judgment as to the second cause of action (in which Cooper is the sole de...
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Memorandum-Decision and Order This action was filed to recover $469.-68, an amount of federal excise taxes and deficiency interest paid by the plaintiffs after audit and assessment by the Internal Revenue Service, for the first quarter of 1956. The issue regarding this specific and somewhat small amount of money was tried to the Court. A substantial trial record was compiled. The excise taxes comp...
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OPINION This is an ex parte application by plaintiff under Rule 26(a), Fed.R.Civ.P., for leave to serve notice of the taking of defendant’s deposition prior to the expiration of 20 days after commencement of this action. The applicable clause of Rule 26(a) provides that: “After commencement of the action the deposition may be taken without leave of court, except that leave, granted with or-withou...
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The above-entitled action is a claim by Carol Glicksman and by Paul Glicksman, her husband, which grows out of a collision of two motor vehicles. Plaintiff Carol Glicksman was operating one of these motor vehicles and the defendant, Sidney Laitman, was operating the other. The first claim in the complaint is because of injuries, etc. to the plaintiff Carol Glicksman. The second claim is that of th...
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OPINION A former “claims authorizer” for the Department of Health, Education and Welfare brought this action against the Secretary of that Department for a declaratory judgment that his resignation was involuntary and a mandamus compelling his reinstatement to his former position among other demands. He claims that he was coerced into resigning because of religious pressure and was further coerced...
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OPINION Plaintiff moves to dismiss defendants’ counterclaims for insufficiency in law. Fed.R.Civ.P. 12(b). The counterclaims allege that plaintiff, knowing its patent to be invalid and not infringed by defendants, “wantonly, wilfully and maliciously commenced its * * * action against defendants and sought a preliminary injunction and obtained a restraining order against them, with a view to preven...
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*431MEMORANDUM OPINION (sitting by designation). This is an action to recover for work performed pursuant to a construction contract. The complaint alleges that the plaintiff is a Louisiana corporation with its principal office there, and the defendant is a drainage district “created and organized by a decree of the Chancery Court of Tippah County, Mississippi”. The ad damnum here is for more tha...
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The merchandise the subject of these protest cases, which were consolidated at trial, was invoiced as “Sekiden shots” and they appear as small, round pieces of clay with pearl-like coatings. Classification was made under item 737.90 of the Tariff Schedules of the United States as parts of toys dutiable at the rate of 35 per centum ad valorem. It is claimed that the shots are dutiable as ammunition...
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The protest in this case involves an importation of certain plastic artificial flowers described on the invoice as “AP/37 Poinsettia Branch”, “AP/36 Poinsettia Spray”, and “AP/1 Poinsettia Spray”. It was stipulated that the involved articles are in chief value of plastic (R..3). The merchandise in question was classified under item 748.20 of the Tariff Schedules of the United States and assessed w...
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The merchandise in the case at bar consists of certain woven fabrics, weighing over 4 ounces per square yard, containing more than 17 percent by weight, but not in chief value of wool, the remainder of the fabrics being composed of manmade fibers. The fabrics in question were classified under the provisions of paragraph 1122 of the Tariff Act of 1930, classification under said paragraph not being ...
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The issue in this case is the proper classification of certain inflatable vinyl articles representing various water animals. Samples of the articles in evidence include a swan, 28 inches long, 30 inches high; a seal, 28 inches long, 27*4 inches high; a dolphin, 48 inches long and 18 inches high; and a walrus, 38 inches long and 29 inches high. Duty was assessed at the rate of 35 per centum ad valo...
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This appeal for reappraisement is limited to entry items described as artificial flowers (R. 2), exported from Hong Kong in July 1962. The parties, both in their rule 15 statements and again in their briefs, agree that export value, section 402(h) of the Tariff Act of 1930, as amended, 19 U.S.C., section 1401a, is the correct basis for valuing the artificial flowers. Section 402, as amended, defin...
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MEMORANDUM OPINION Defendants’ Pretrial Motions This is a seven count indictment naming five defendants, including Joseph Alfred Tanner, Lawrence Henry Rice, Jack Alter Pearl, Alvin Junior Cupp, and Walter Beryl Chipman. It essentially arises out of the alleged arson and bombing of the vessel Howard L. Shaw, in the Calumet Harbor of Chicago, on or about September 6, 1963. The various...
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MEMORANDUM-DECISION AND ORDER This suit is for refund of corporate income taxes allegedly overpaid for the *482years 1951 through 1954. The complaint is set forth in four counts. Over a long period of time, often seemingly necessary for the presentation and disposition of most federal tax problems, a number of the issues raised by the pleadings have been settled. As the lawyers put it now, there i...
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*486OPINION and ORDER Petitioner, Thomas N. Martin, comes to this court seeking a writ of mandamus pursuant to Title 28 U.S.C. § 1651(a). He alleges that the respondent, Superintendent of the Bland Correctional Farm, acted in excess of his statutory power causing harm to the petitioner which rises to constitutional proportions. A brief review of petitioner’s factual allegations is necessary to pla...
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MEMORANDUM ORDER This matter is now before the Court on the motion of the third party plaintiff, Aluminum Company of America (Alcoa) for summary judgment against the third party defendant, J. M. Foster Co., Inc. By this motion Alcoa seeks to recover as damages the expenses, costs and attorney fees incurred by it as a result of its having defended its interest in the principal case herein. Plainti...
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The principal issues involved in this case are whether the Louisiana Private Works Act 1 or the Louisiana Oil, Gas and Water Wells Act 2 (hereafter referred to as Oil Well Act) afforded lien coverage to suppliers-of material, labor and services on an oil pipeline construction project which extended from land upon the Outer Continental Shelf of the Gulf of Mexico. Both Acts...
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MEMORANDUM OF THE COURT (by designation). Douglas H. Quarles, plaintiff, and Ephriam Briggs intervening plaintiff, Negro employees of Philip Morris, Inc., and members of Local 203 of the Tobacco Workers International Union, brought this action on their own behalf and on behalf of other Negroes similarly situated, against the company, the union and the president of the union, to enjoi...
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MEMORANDUM OF DECISION Plaintiff brought this suit for patent infringement and defendant counterclaimed for damages based on alleged anti-trust violations. A separate trial of the infringement issue was ordered and tried before the Court. The suit is based on Perry Reissue Patent No. 23,422, issued October 23, 1951, based on Original Patent No. 2,421,806, issued June 10, 1947, on an application da...
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MEMORANDUM The Court has received applications from counsel for plaintiffs for attorneys’ fees and expenses incurred in connection with Slayton, et al., v. Missouri Pacific Railroad, et al., No. 63 C 436(2); Alleghany Corporation, et al., v. Mississippi River Fuel Corporation, et al., No. 64 C 48(2); Levin v. Mississippi River Fuel Corporation, et al., No. 64 C 77(2); and Harris, et al., v. Missi...
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279 F.Supp. 532 (1968) George H. WINKLE, Petitioner, v. George A. KROPP, Warden, State Prison of Southern Michigan, Respondent. Civ. A. No. 28558. United States District Court E. D. Michigan, S. D. February 2, 1968. *533 D. Michael Kratchman, Detroit, Mich., for petitioner. Frank J. Kelley, Atty. Gen. of Michigan, and Robert C. Goussy and William J. Mullaney, Asst. Attys. Gen., for respondent. O...
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Plaintiff (hereinafter Chemtee Midwest) is a corporation incorporated by the state of Ohio, which has its principal place of business in the state of Indiana, and defendant (hereinafter INA) is a stock insurance company organized under the laws of the state of Pennsylvania. The amount in controversy is in excess of the sum of $10,000, exclusive of interest and costs. The action is for declarato...
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279 F. Supp. 548 (1968) Thomas August HENSLEY, Plaintiff, v. UNITED STATES of America; Al Johnson Construction Company, a Corporation; and Continental Drilling Company, a Corporation, Defendants. Civ. No. 2716. United States District Court D. Montana, Great Falls Division. February 2, 1968. *549 Bretz & Gabriel, Great Falls, Mont., for plaintiff. Moody Brickett, U. S. Atty., Butte, Mont., for...
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McNees and his mother inherited a piece of commercial property in McComb. The mother was devised a life estate in the property and the son acquired by said will the remainder estate therein. The parties sold the property for fifty-nine thousand dollars which was paid jointly to the sellers. The son induced *552his mother to let him have this money for use in his business in exchange for his agreem...
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ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS AND DENYING PETITION FOR HABEAS CORPUS WITHOUT PREJUDICE Petitioner, a state convict confined in the Missouri State Penitentiary, Jefferson City, Missouri, has filed a petition for a writ of federal habeas corpus, and for leave to proceed in forma pauperis to contest the validity of a Tennessee judgment of conviction and imposition of sentence and ...
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OPINION This is a motion to dismiss the complaint for lack of in personam jurisdiction over defendant Floyd H. Demby, or, in the alternative, to quash the summons allegedly served upon Demby for improper service. The other defendant, Elliot Bros. Trucking Company, Inc., has not appeared on this motion. On October 3, 1966, David Lambert, plaintiff’s intestate, was killed when he was struck by a tr...
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Memorandum Opinion and Order Defendant Eskow is charged with some 40 violations of the mail fraud statute,, 18 U.S.C. § 1341. Defendant now moves for an order: 1) dismissing the indictment because he was denied “his constitutional right” to appear before the grand jury; and 2) granting defendant the right to inspect the grand jury testimony of Donald J. Palmer, as “grounds may exist for a. motio...
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MEMORANDUM AND ORDER This action was instituted by plaintiff to recover for the breach of an alleged oral contract to convey a controlling block of 388 shares in the First State Bank of Thornton, Iowa. Jurisdiction is grounded upon diversity of citizenship. The plaintiff, Glenn O. Emmons, is a citizen of the State of Minnesota and the defendants, Melvin A. Ingebretson and Minnie L. Ingebr...
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OPINION Plaintiff brings this action against a stock brokerage firm claiming jurisdiction under 15 U.S.C.A. § 77v (Securities Act of 1933), 15 U.S.C.A. § 78aa (Securities Exchange Act of 1934, and 28 U.S.C.A. § 1332 (diversity jurisdiction). The causes of action are stated in three counts. Count I avers transactions in violation of 15 U.S.C.A. § 111, 15 U.S. C.A. § 77q and 15 U...
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Plaintiffs Yameta Co. Ltd. (Yameta) and Jimi Hendrix move herein for a preliminary injunction restraining defendants Capitol Records, Inc. (Capitol) and PPX Enterprises, Inc. (PPX) from selling or distributing any recordings featuring plaintiff Hendrix as a performer. They rest their claim for injunctive relief upon general principles of contract law, common-law concepts of unfair competition, Ne...
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*588RULING ON MOTION FOR SUMMARY JUDGMENT This is a suit for refund of excise taxes assessed by the Commissioner of Internal Revenue at the rate of 20% on the first $2500 1 of the prices paid by each of 13 members of the Mason’s Island Yacht Club (hereinafter the “club”) for parcels of real property on Mason’s Island individually acquired by them. These properties were acquired between 1958 and 19...
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MEMORANDUM OPINION This is an action arising under 28 U.S.C. § 1346(a) (1) for recovery of federal income taxes alleged to have been illegally assessed and collected. Plaintiff is a Delaware corporation engaged primarily in the construction of gas distribution facilities. At issue is the dis-allowance by the District Director of Internal Revenue of a “bad debt” deduction claimed by plaintiff in i...
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MEMORANDUM OPINION AND ORDER This matter comes before the Court on a petition by the National Acceptance Corporation (hereinafter the petitioner) for review of an order of the Referee in Bankruptcy, Rufus W. Reynolds, dated August 7, 1967. The order of the Referee denied the National Acceptance Corporation’s claim to the proceeds from the sale of certain property in the hands of the Trust...
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MEMORANDUM Plaintiff, a citizen of Nebraska and resident of Lancaster County, Nebraska, and of its First Congressional District, and entitled to vote for a United States Representative therein, brings this action to procure reapportionment of the three Congressional Districts of Nebraska. Other portions of the prayer for relief will be referred to at the appropriate time in the discussion which...
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*610 MEMORANDUM Two cases, both relating to congressional redistricting, are before the court. The questions, except for the jurisdictional question in Civil 1268L, namely, whether the court has authority under the Federal Rules of Civil Procedure, Section 60(b) (6) or through its inherent power, to modify the order of November 22, 1967, are identical in each. The jurisdictional problem was...
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MEMORANDUM OPINION The Petitioner is an Oklahoma prisoner serving a life sentence imposed by the District Court of Payne County, Oklahoma, on November 2, 1939, on a plea of guilty for the crime of rape in the first degree. In his Petition for Writ of Habeas Corpus herein, the Petitioner raises five complaints as follows: (1) Petitioner was denied his right to counsel at his first District Court ar...
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I As a result of the decennial census of 1960 and pursuant to the Act of Congress of June 18, 1929, 46 Stat. 21-27, as amended by the Act of November 15, 1941, 55 Stat. 761, 2 U.S.C.A., Section 2a, the number of Representatives in Congress to which the State of Mississippi is entitled was reduced from six to five. For Mississippi this was the third reduction in thirty years. Forty years ago, Mi...
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DECISION AND ORDER ON THE MERITS This case involves the interpretation of one of the plaintiff’s tariffs. This court concludes that the proper interpretation demands that judgment be rendered for the defendant. The defendant, a scrap broker, purchased scrap iron from seven railroads-These railroads, at defendant’s direction *626(even though title did not pass until later), transported this scrap ...
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OPINION AND ORDER This petition by a’state prisoner confined at Graterford State Correctional Institution presents novel and intricate questions of federal procedural and constitutional law. Robson essentially is demanding that the Court vacate a court-martial conviction obtained in England, although he has already completed the sentence. He was subsequently convicted in Clearfield County and i...
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OPINION After a verdict by the jury in favor of the third-party defendant, International Terminal Operating Co., Inc. (“ITO”), the third-party plaintiff, N. V. Nederl. Amerik Stoomv. Maats. (“Holland America Line”), has moved to set said verdict aside for judgment in favor of Holland America Line notwithstanding the verdict, or, in the alternative, for a new trial. *637This claim arises by reason...
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MEMORANDUM AND ORDER Petitioner, an inmate at the Missouri State Penitentiary at Jefferson City, seeks relief by a petition for a writ of habeas corpus. There is no question but that petitioner has exhausted his available state court remedies. See State v. Baugh, Mo. 1964, 382 S.W.2d 608. We so find. The historical facts about which the legal issue of this case arises were stated by the Supreme Co...
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OPINION In a long and none too coherent complaint of 113 paragraphs, plaintiff, an employer, sought, in addition to an injunction (denied by this Court after hearing on January 15, 1968), a declaratory judgment, a mandamus, and disclosure of documents by the National Labor Relations Board (hereinafter sometimes called NLRB). The injunction would have enjoined a hearing before a trial examiner of ...
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OPINION On May 29, 1967, plaintiff, a Tennessee corporation, filed the instant suit seeking a declaratory judgment that, by virtue of its registration of the trade name, trade mark, or service mark “Holiday Inn” on July 13, 1954, under the Lanham Act of July 5, 1946, 60 Stat. 427, 15 U.S.C. § 1051 et seq., plaintiff is entitled to nationwide use by federal law of its trade mark thus registered an...
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MEMORANDUM OF DECISION Plaintiff, on September 28,1962, instituted this action by filing a complaint in which it was alleged in substance that plaintiff, as a corporation, timely filed its income tax return for the fiscal year' beginning February 1, 1957, and ending January 31, 1958, and paid taxes shown due thereon. A tax deficiency was imposed in accordance with the reviewing agent’s report dat...
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I. After paying all of the internal revenue taxes assessed against it, plaintiff-taxpayer filed this action on October 7, 1964, claiming that overpayments were made because of “illegally and erroneously assessed” taxes for its taxable years ending in February of the years 1955, 1956, 1957, 1958, 1959 and 1960. Although the plaintiff’s original complaint alleged a number of different errors...
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MEMORANDUM ORDER Plaintiff brings this suit for refund of the amount paid in satisfaction of the Commissioner’s assessment, and interest thereon, pursuant to the civil penalty imposed by § 6672 of the Internal Revenue Code of 1954, 26 U.S.C. § 6672, for failure to collect and/or pay over any tax. The statute provides in pertinent part: “Any person required to collect, truthfully account for, and ...
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This matter comes before the court on motions by both defendants for an order of dismissal, grounded upon the alleged lack of standing in the plaintiffs to maintain the present action. Plaintiffs’ complaint seeks a declaratory judgment, an injunction and compensatory damages, all on the theory that the marketing of data processing 1 to the public by defendant American National Bank i...
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MEMORANDUM OPINION AND ORDER ON MOTIONS FOR SUMMARY JUDGENT This is an action for declaratory judgment brought pursuant to the provisions of 28 U.S.C. § 2201. Defendant by way of counterclaim also seeks declaratory judgment. There appears to be no issue concerning any material fact appropriate for consideration in determining the basic issue involved in this case. There is controversy concerning ...
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MEMORANDUM: The plaintiffs, Homer L. Bruce, Jr. and wife, seek to recover $16,633.49 in federal income taxes paid for the year 1962. In issue is the character of loss— whether capital or ordinary — sustained by plaintiff when stock owned by him in HLB Corporation became worthless during the tax year. The case was submitted largely on stipulated facts and documentary evidence, the only oral test...
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Petitioner, having petitioned this Court for an order in the nature of a writ of mandamus to compel respondents to release petitioner forthwith from the Federal Correctional Institution at Dan-bury, Connecticut, where petitioner alleges he is presently confined, having been sentenced by the United States District Court for the District of New Jersey, on September 23, 1966, to a term of three years...
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Plaintiff, Hedy Ford, seeks damages for injuries allegedly sustained as a result of a collision in La Crosse, Wisconsin, between an automobile driven by her husband, Robert R. Ford, now deceased, and an automobile driven by defendant Graf. State Farm, Graf’s insurer, and Graf have filed a third party complaint against Shelby Mutual Insurance Company (Shelby) for contribution. Shelby was the insure...
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Libelant, Texas and New Orleans Barge Line, Inc., brings this suit to recover what it alleges to be the balance due under a charter party entered into between it and the respondents on March 16, 1965, together with other debts connected therewith which are also alleged *698to be due and payable. There is very little, if any, real dispute about the facts involved in this case. On March 16, 1965, li...
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Plaintiff’s complaint alleges the following facts. On September 21, 1965 Mark Hunter, plaintiff's decedent, was employed by the Detroit Marine Terminals, Inc. and was engaged in unloading the Norwegian ship “Mica”. While in the process of removing steel from the hold of the vessel, a winch cable and a shocker snapped, causing him to be pinned under some steel, which eventually led to his death. Th...
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*704 ORDER Upon consideration of Plaintiff’s Motion to Remand, the Response of Defendant thereto, and the briefs submitted by the parties, the Court finds that said Motion to Remand should be denied. Plaintiff’s decedent drowned at Grand Lake while water skiing when he passed through an open flood gate in the dam. The Defendant operates the dam under a 50-year license from the Federal Power...
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ORDER DISMISSING MOTION TO MODIFY OR CHANGE SENTENCE The Defendant, Rudolph James Anderson, was sentenced on July 26,- 1965, for violations of 18 U.S.C. § 495 and § 1708 (forging and uttering a United States Treasury check and possession of stolen mail), following his plea of guilty. The sentence was fixed at five years confinement on each count of the three-count indictment, to be served concurre...
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MEMORANDUM The plaintiff in these eases is a citizen of Illinois and the defendants in these cases are citizens of Missouri. The amount involved exceeds $10,000. This Court has jurisdiction under the provisions of 28 U.S.C. § 1332. The plaintiff was an employee of the United States Army Aviation Material Command (hereinafter called AVCOM). The defendants in these cases were employees of AVCOM. In...
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OPINION, FINDINGS OF FACT, AND CONCLUSIONS OF LAW The above entitled cases arose out of the same series of transactions, and were consolidated for trial before this Court September 26, 1967. On July 31, 1961, plaintiffs, Jarril F. Kaplan and Elias M. Romley, were partners in the law firm of Moore, Romley, Killingsworth and Kaplan. On that date there was received on behalf of the partnership, for ...
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ORDER This cause comes on for consideration on the motion of defendant for summary judgment filed pursuant to the provisions of Rule 56(b) and (c) Federal Rules of Civil Procedure which motion states that the amended complaint and answers thereto and the affidavits on file show that the defendant is entitled to judgment as a matter of law. From an examination of all pleadings on file...
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ORDER This suit involves a labor dispute between the parties in which plaintiff filed complaint seeking injunctive relief and damages. The complaint alleges that, under the agreement between them, the plaintiff company shall employ journeymen belonging to the defendant union, with the employment effected by the company calling the union and requesting it to refer journeymen to it for employment. ...
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ORDER This matter is before the Court on a motion to remand an action which was removed to this court pursuant to 28 United States Code, Sections 1441, 1446. 'The motion, the memoranda in support, the brief and answer of the defendant, .and the reply to defendant’s answer have been well considered. Plaintiff commenced this action in the Common Pleas Court of Licking County, State of ...
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MEMORANDUM OPINION, FINDINGS OF FACT, CONCLUSIONS OF LAW ON COUNT I In Count I of an information, containing eleven counts, the three defendants were jointly charged with having (“commencing prior to October 15, 1962 and continuing to on or about December 4, 1962”) unlawfully, willfully and knowingly conspired in 1962 in violation of Section 371 of Title 18, U.S.C. to commit offenses and to cause ...
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OPINION Defendant Andrew Gera was driver of an automobile which on December 15, 1963, hit a pole and a passenger, his brother, Corporal Joseph Gera, a Marine, sustained injuries. Hospital care *732amounting to $2,087.65 was furnished by the Government. Apparently no action has been brought against defendant by his brother. On November 29, 1967, the United States brought this suit under the Medica...
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OPINION The plaintiff asserts that she and her husband in 1950 purchased 4.5313 acres of land from the defendant’s decedent but that the two parcels of land which the deed given by the defendant’s decedent conveyed to them, actually contained only 3.5591 acres although the deed recited that they comprised 4.5313 acres. Her husband having conveyed his interest to her, she sues to recover the purcha...
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The trustee herein was appointed May 12, 1966, by an order which directed him to file within 20 days a list of creditors and stockholders. The trustee filed such a list on June 1, 1966; said list did not characterize the claim of any of the creditors as contingent or not contingent, unliquidated or liquidated, disputed or undisputed. Prior to filing said list, the trustee had no knowledge of the c...
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279 F. Supp. 737 (1968) Eugene F. BERHOW and Myrtle V. Berhow, Plaintiffs, v. UNITED STATES of America, Defendant. Civ. 02292. United States District Court D. Nebraska. February 26, 1968. *738 Dan J. Whiteside, Omaha, Neb., for plaintiffs. Sheldon Glass, Tax Division, Dept. of Justice, Washington, D. C., Russell J. Blumenthal, Asst. U. S. Atty., Omaha, Neb., for defendant. MEMORANDUM RICHARD E. ...
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MEMORANDUM AND ORDER This matter is before the court upon the Motion for Summary Judgment of Third Party Defendant Great Plains Lutheran Hospitals, Inc., filing number 39. Briefs were filed, oral argument has been made, and the matter now stands submitted. The facts, insofar as they are material to this motion, are Plaintiff Melburn filed a complaint against Drs. Walker and Steffens claiming that...
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DECISION and ORDER On September 28, 1961, the defendant, Hilton A. Guzman, procured a loan for $4,600 from the Home Savings and Loan Association. This loan was guaranteed by the veterans administration to the extent of $2,700. On March 1, 1962, the defendant defaulted on the loan, and on April 4, 1963, he filed a voluntary petition for bankruptcy in this district. The defendant received a discharg...
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MEMORANDUM This matter is presently before the court on motion of defendant, John L. Kitner, to bring in John W. Bailor and Mary M. Bailor, individually and trading as Bailor’s Inn, as third-party defendants, and motion of plaintiff in opposition to third-party joinder. This litigation arises out of a one vehicle automobile accident which occurred on July 9, 1966, at or about 3:30 A.M., on Legisla...
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279 F.Supp. 747 (1967) Alonzo SAWYERS, Bruce D. McArthy, Jariel I. Bay, Russell D. Bookout, James Adcox, Eugene Harl, and Aeronautical Mechanix Lodge No. 837, of the I.A.M. A.W., Aircraft Lodge of District No. 9, I.A.M.A.W., St. Louis, Missouri, Plaintiffs, v. GRAND LODGE, INTERNATIONAL ASSOCIATION OF MACHINISTS, an unincorporated international labor organization, c/o Richard L. Thurer, Internati...
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MEMORANDUM OPINION AND ORDER The action comes before the Court on a petition for relief under 28 U.S.C. § 2254. When a matter is thus presented the mentioned act of Congress contemplates that a United States court will *762 search the record carefully and in depth. This we have attempted to do. Petitioner was convicted of first degree murder in Denver, Colorado District Court on June 12, 19...
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DECISION and ORDER Petitioner has submitted a habeas corpus petition and seeks leave to file the same in forma pauperis. This is petitioner’s second habeas corpus petition to the federal district court. On September 27, 1965, after a response had been filed by the state attorney general, the previous petition was dismissed. (District court file 65-C-232). *771The present petition to the court is g...
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OPINION This is an action by the executor of the estate of Alexia duPont Ortiz deBie to recover income taxes which plaintiff contends were erroneously paid by taxpayer and illegally retained by defendant. By agreement the action was tried without a jury. The Court has jurisdiction of the parties and of the subject matter of the action. 28 U.S.C. § 1346(a) (1). Background Facts ...
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MEMORANDUM This is a motion under Rule 12(c) for a judgment on the pleadings. Defendant, United States of America, urges this court to grant a judgment in its favor on the ground that the court does not have subject matter jurisdiction. The complaint of Frank H. Amundson, administrator of the Estate of Edward C. Amundson, seeks the return of $100.00 paid to the Commissioner of Internal Revenu...
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This is a motion by defendants for transfer of venue to the Northern District of Texas under 28 U.S.C. § 1404(a). Plaintiffs sue derivatively on behalf of American Hydrocarbon Corporation (American) and also on behalf of the class of shareholders of American similarly situated. Both actions are grounded upon an alleged violation of § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. ...
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OPINION Atlas Copco Aktiebolag (“Atlas”) brings this action for alleged infringement of U. S. Letters Patent No. 3,085,-638, issued to Jan Larcen, plaintiff’s assignor, on April 16, 1963, and hereinafter termed the “Larcen patent.” Atlas is a Swedish corporation. It maintains its principal place of business in Sweden, with sales subsidiaries in many other countries, including its American office ...
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This is an injunction proceeding in which the Regional Director of the Fifteenth Region of the National Labor Relations Board has filed on behalf of the Board a petition for a temporary injunction under Section 10(1) of the National Labor Relations Act, as amended,1 pending the hearing and determination by the Board of a complaint issued by it alleging that the Seafarers’ International Union of No...
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Memorandum Opinion And Order On Reargument This is an action to rescind the sale of municipal bonds made by defendants to plaintiff. The amount sought to be recovered by plaintiff is the sum of $46,-551.57 which she allegedly advanced to defendants for the purchase of said bonds. Plaintiff seeks to recover the further sum of $12,381.86 which she al *800 leges she was required ...
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MEMORANDUM AND OPINION This action was commenced in the District Court of the Second Judicial District of the State of Montana, in and for the County of Silver Bow. Plaintiffs are citizens of Montana and sue several defendants, alleging negligence in the design and construction of a mortuary building and apartment, and a breach of warranty in the fitness of the building for the purpo...
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This is a motion to dismiss as moot this stockholders’ derivative action brought under § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C.A. § 78j(b), and Rule 10B-5, 17 C.F.R. § 240.10b-5, and a cross-motion by plain *808 tiff for the award of counsel fees. The complaint alleges that the individual defendants, the directors of Techmation Corporation (hereinafter “Techmation”), used misle...
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MEMORANDUM OF DECISION This action arises under the Internal Revenue laws of the United States, and is here now on cross-motions for summary judgment. The plaintiff’s complaint prays for recovery of estate taxes and interest thereon assessed against the Estate of Carl H. Schmidt pursuant to 26 U.S.C.A. § 2001, as amended. The Court finds, as a preliminary matter, that it has jurisdiction of the...
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MEMORANDUM This matter is now before the Court on the motion of defendant to quash service of process and dismiss the complaint for lack of jurisdiction of this court over the defendant, Oerlikon Plastics Ltd., a Swiss Corporation. Suit was originally commenced by plaintiff on April 20, 1967, and service of process was made pursuant to § 617.3 Iowa Code (1966) as allowed in the federal courts...
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279 F.Supp. 820 (1968) In the Matter of James Kendall CLANCY, Bankrupt. The FIRST NATIONAL BANK OF COLORADO SPRINGS, Petitioner on Review, v. James Kendall CLANCY, Bankrupt, Respondent on Review. No. 67-B-976. United States District Court D. Colorado. February 21, 1968. *821 Haney, Hewbert & Akers, Byron L. Akers, Jr., Colorado Springs, Colo., for petitioner on review. Rodden, Cooper, Woods &...
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MEMORANDUM OPINION AND ORDER James Kendall Clancy filed a voluntary petition in bankruptcy on March 10, 1967. Objections to the bankrupt’s discharge were filed by The First National Bank of Colorado Springs on the ground that the bankrupt had obtained a business loan from the bank by making a materially false financial statement within the terms of Section 14c(3) of the Bankruptcy Act.1 Referee M...
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OPINION SUSTAINING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Plaintiff, Citizens Bank of Hattiesburg, a Mississippi banking corporation, filed its complaint for declaratory judgment and other relief against the Comp*825troller of the Currency seeking to void the certification of a branch bank of Southern National Bank of Hattiesburg, and to cancel the certificate of authority previously issued by t...
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Memorandum Opinion and Order on Petition to Review Petitioner, Stanley Karman, Inc., was adjudged a bankrupt on December 12, 1966. At that time, the Referee denied confirmation of an amended plan of arrangement submitted by petitioner in a Chapter XI proceeding commenced in a pending involuntary bankruptcy proceeding. 11 U.S.C. §§ 721, 723, 766. Petitioner seeks a review and reversal ...
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MEMORANDUM AND ORDER This matter is now before the Court on the motions of both defendants to dismiss under Federal Rule of Civil Procedure 12. Each defendant moves to dismiss on the grounds that (1) the complaint fails to state a claim upon which relief can be granted, (2) the Court has no jurisdiction of the subject matter, (3) the action is barred by the Statute of Limitations for matt...
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ORDER Plaintiff seeks payment by defendant State Farm Mutual Automobile Insurance Company under the uninsured motorist endorsement contained in a policy of insurance issued by defendant. The matter was heard before the court on December 5, 1967 sitting without a jury. This court, as directed, must find and state separately its facts and conclusions of law. FINDINGS OF FACT 1. On or about Oc...
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MEMORANDUM DECISION ON MOTION FOR SEVERANCE, BILL OF PARTICULARS, DISCOVERY I. Severance Defendant Thomas Burgio moves for an order severing the trial of his case from the trial of his two co-defendants named in the indictment pursuant to which the three will be jointly tried. 1 The indictment is in seven counts. In count one it is alleged that Burgio and his two co-defendants, along wi...
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Findings of Fact and Conclusions of Law This action was brought by plaintiff, individually and as executrix of the estate of her deceased husband, Raymond P. Cotter, to recover from defendant, United States of America, damages for the wrongful death of decedent. The gravamen of the complaint is that Mr. Cotter died in the Veterans Administration Hospital, Montrose, New York, as the result of: 1) a...
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MEMORANDUM The complaint in this action alleges that plaintiff was a surety on performance and payment bonds executed on December 30, 1959 in connection with a federal construction contract, for work to be performed at the Maximum Security Penitentiary in Marion, Illinois. The bonds were issued pursuant to the Miller Act, 40 U.S.C. § 270a et seq., on behalf of Henry C. Pulley d/b/a Pulley...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This suit was brought by a veteran, presently an employee of defendant, to recover the difference between wages to which the veteran claims he was entitled upon his return from military service and wages paid to the veteran. The difference involved has been stipulated. FINDINGS OF FACT 1. Plaintiff is a citizen of Massachusetts';defendant is a Massachusetts ...
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Memorandum of Decision on Motion Movants are persons who have been subpoenaed to appear and testify before a special grand jury convened to investigate alleged violations of Title 50 (Appendix) U.S.C. § 462 (Draft Card Burning). Movants claim that it is suspected that they have violated the cited statute. The instant motion was brought on by order to show cause signed on December 11, and heard o...
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*861MEMORANDUM OPINION AND ORDER ON PETITION FOR LEAVE TO WITHDRAW INTEREST Petitioner, Alicia T. Levin, has petitioned this court for an order permitting her to withdraw, from time to time in her discretion, the interest (amounting to approximately $4,320.00 per year) on funds deposited in several savings banks for the benefit of petitioner’s two infant children, Mark and Julie Levin. The corpus ...
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OPINION AS RENDERED FROM THE BENCH Freddie L. Weston has filed a petition for writ of habeas corpus consisting of some 22 pages. The petition is so long and so involved that it is difficult to understand. As the Court interprets it, petitioner seeks to have vacated two’ sentences that were given him in 1954, at which time he was convicted in the Criminal Court of Knox County on two separate counts...
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Plaintiff moves to remand this declaratory judgment action to the New York State Supreme Court, where it was originally brought, on the ground that the amount in controversy does not exceed $10,000, 28 U.S.C. § 1332(a) (1),1 and therefore the action is not removable to the federal courts. 28 U.S.C. § 1441(a).2 The action arises as the result of a dispute as to the meaning and effect of a contract ...
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OPINION and JUDGMENT From an adverse decision of the Secretary of Health, Education and Welfare rendered June 29, 1967, Alex Ratliff, married, the father of two children and a resident of Grundy, Virginia, has appealed to this court. Born October 8, 1928, he is now thirty-nine years of age. The possessor of a third grade education, he can sign his name, but is otherwise illiterate. Having delivere...
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OPINION Plaintiff, Secretary of Labor, sues under 29 U.S.C. § 482(b) to set aside an election in defendant labor organization because of an alleged violation of the provisions of 29 U.S.C. § 481(e). The election was held November 17, 1966. Thereafter the complaining member filed a protest with the president of the labor *874organization on February 3, 1967, which was rejected on February 13, 1967...
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MEMORANDUM This action was filed for review of the Secretary of Health, Education and Welfare’s determination that the plaintiff was not entitled to Social Security Disability Benefits. Plaintiff subsequently filed a motion to remand the case to the Secretary for the taking of further evidence. The motion was granted by this court on November 22, 1966. On remand the Secretary reversed his position...
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Memorandum and Order Defendant filed, on July 3, 1967, a petition for removal of plaintiff’s cause of action from the Supreme Court, New York County, to this court, on the ground of diversity of citizenship. A certified cheek of defendant’s attorney, in the amount of $500.00 and entitled “Bond for Removal”, was filed with the clerk of the court. The cheek was accepted by the clerk “In Lieu...
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ORDER Petitioner has filed a “Petition for Writ of Habeas Corpus ad Testificandum”, and Respondents move to dismiss same. On April 15, 1966, the Petitioner was sentenced to a term of fifteen years in the Oklahoma State Penitentiary by the District Court for Oklahoma County pursuant to his conviction in that Court of the crime of burglary in second degree after former conviction of a felony. Petiti...
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OPINION The relator, Tomislav Kordic, previously challenged, in a petition for a writ of habeas corpus before this court, the denial of his right to a hearing on his claim that if he is returned to Yugoslavia he will suffer political persecution. 8 U.S.C. § 1253(h). This court on July 25, 1967 sustained petitioner’s right to an interview or hearing before an Immigration Inspector. Respondent had a...
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OPINION and JUDGMENT This case comes before the court upon a petition for a writ of habeas corpus, filed in forma pawperis by a state prisoner pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a team of life imprisonment in the Virginia State Penitentiary, following his conviction for first-degree murder, in the Circuit Court of Albemarle County, on October 18, 1961. At his trial befor...
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Laitram sued Deepsouth claiming infringement of its patents on a shrimp deveining machine 1 and a shrimp vein remover. 2 Deepsouth answered that Laitram’s patents were invalid. Then it counterclaimed seeking a declaration that a third Laitram patent, on a machine for peeling shrimp, 3 was invalid. Laitram made a public dedication of the patent on the shrimp peel...
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This is an action by the purchaser of a large pretzel oven, Becker Pretzel Bakeries, Inc. (Becker), against the manufacturer-seller of the oven, Universal Oven Company, Inc. (Universal), to recover damages caused by a fire in the oven some months after it had been installed. At the trial before a jury plaintiff offered evidence that the fire was caused by slippage of the meshes in the oven; tha...
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Jurisdiction of this case is based on diversity of citizenship. The statute1 conferring jurisdiction requires that the amount in controversy exceed $10,000. The defendant challenges the existence of jurisdiction. The damages alleged are a mild strain of the variety known as a whiplash, resulting in “a painful injury to his neck whereby he was incapacitated for a week and one-half and suffering pai...
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OPINION ON MOTIONS FOR SUMMARY JUDGMENT Each of the parties herein has filed a motion for summary judgment. Plaintiffs’ motion has been once and the defendant's motion twice amended. The motions are accompanied by affidavits, and documents which are stipulated as to authenticity. Plaintiffs are beneficiaries of a life insurance policy issued by the defendant upon the life of Donald G. Elliott in ...
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MEMORANDUM OPINION Plaintiffs are former owners of Class A preferred stock of the defendant Chicago & Eastern Illinois Railroad (C & El). They bring this action on their own behalf, and ask that this be declared a class action, pursuant to Rule 23 of the Federal Rules of Civil Procedure, and that they be permitted to represent all other owners and former owners of Class A stock, on and af...
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Plaintiff, Frederick Chusid & Co. (hereinafter “Chusid”), a Delaware corporation engaged in the management consulting and personal counselling business with its principal place of business in Illinois, brings this diversity copyright and antitrust suit against five of its former employees and Marshall Leeman & Co. (hereinafter “Leeman”), a New York corporation having its principal place of busi...
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MEMORANDUM OF DECISION In this case, tried to the Court1 without a jury, the defendant was charged *921with failure to comply with an order to report for and submit to an Armed Forces physical and mental examination, in violation of Title 50 U.S.C.(App.) § 462 (a). On March 4, 1963, the defendant registered with the Selective Service System, Local Board No. 8 in New Haven, Connecticut. In his Clas...
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This case is now before the Court on defendant’s motion to dismiss the amended complaint for failure to state a claim upon which relief may be granted. A similar motion was made to the original complaint and this Court, in granting that motion, allowed the plaintiff 30 days to amend its complaint “so as to set forth a cause of action based on the common law.” L. S. Good & Company v. H. Daroff & So...
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OPINION AND ORDER SUR DEFENDANT’S MOTION TO DISMISS On January 26, 1967, the plaintiff filed a complaint in this District with jurisdiction based on diversity of citizenship for damages resulting from an accident which transpired in Houston, Texas, involving a motor vehicle owned by the defendant, and allegedly operated by one of its agents. Although the complaint and summons were lodged in a tim...
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Opinion and Judgment This case is before the court upon a petition of Piedmont Trust Bank, a creditor of the bankrupt, to review an order of the referee in bankruptcy entered November 28, 1967. The referee held that Piedmont Trust’s objections to the bankrupt’s discharge arrived after the date set for the filing of such objection, and since no good cause was shown for the granting of an extension,...
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ORDER This cause came on to be heard pursuant to notice for hearing on plaintiffs’ motion to remand, and counsel for the respective parties were present and heard. It is plaintiffs’ contention here that the defendant did not seek to remove this cause timely. The original complaint of plaintiffs filed in state court merely stated jurisdictional amount for the state court and was not s...
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This is a stockholders’ derivative suit brought on behalf of Dreyfus Corporation, seeking recovery pursuant to § 16 (b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78p(b). Between September 15, 1966 and March 15, 1967, the defendant, The Fund of Funds, Ltd., owned in excess of 10% of the outstanding shares of the common stock of Dreyfus. Within that six-month period, defendant bought an...
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MEMORANDUM This action was brought under the Securities Exchange Act of 1934 and under common law fraud and negligence counts by a customer against his stockbroker. After a verdict of a jury and judgment in its favor, the successful defendant moves for review under Rule 54(d) of the Federal Rules of Civil Procedure of the taxation of costs against the unsuccessful plaintiff as determined by the Cl...
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MEMORANDUM OPINION ON MOTION TO DISMISS All defendants in this action for personal injuries, pain and suffering, and wrongful death have moved to dismiss. The single ground of the motion is that, there being no diversity of citizenship between plaintiff and defendants, this court is without jurisdiction. This suit, brought by plaintiff as administratrix of the goods, chattels and credits of her de...
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Plaintiff, Gully Wilson, brought this suit, basing jurisdiction upon diversity of citizenship and the General Maritime Law, seeking to recover damages for injuries he sustained while working as a longshoreman aboard the S/S ANDREA GRITTI, owned and operated by the defendant, Societa Italiana de Armamento (Sidarma). The defendant impleaded the stevedore-employer of the plaintiff, which in turn inte...
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OPINION Before the Court is a motion by the Reading Railroad to transfer this action to the United States District Court for the District of Columbia, in accordance with Section 1404(a) of the Judicial Code. In the alternative, the Reading seeks a stay of further proceedings in this suit pending the prosecution of a prior action in the District of Columbia between the same parties, and involving ...
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279 F.Supp. 952 (1967) Paul W. PREISLER et al., Plaintiffs, v. The SECRETARY OF STATE OF MISSOURI and The Attorney General of Missouri, Defendants, F. V. Heinkel et al., Intervenor Defendants. No. 1064. United States District Court W. D. Missouri, Central Division. December 29, 1967. Probable Jurisdiction Noted March 4, 1968. *953 *954 *955 Paul W. Preisler, St. Louis, Mo., for plaintiffs. Norman...
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MEMORANDUM The relator, presently incarcerated at the State Correctional Institution, Graterford, Pa., seeks, by a petition for a writ of habeas corpus, to test the legality of his restraint by the state authorities. In his petition, the relator asserts that on February 27, 1967, he filed a petition under the Pennsylvania Post-Conviction Hearing Act, 19 P.S. § 1180-1 et seq. (1966), in the Court o...
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The defendant urges, and the Court finds, that prescription has run against the plaintiff’s claim that the defendant caused the plaintiff to lose an opportunity to sell his business to Hagan Parmley in February, 1964. Suing on the basis of diversity, the plaintiff says that Parmley offered to buy his business consisting of five (5) Texaco service stations, all located in Mississippi, on February 1...
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In this action for a refund of estate taxes in the sum of $42,427.18 alleged to be an illegal charge of interest upon interest, both parties move for summary judgment. The facts are undisputed. Plaintiffs are the executors of the estate of Elias A. Cohen, who died on July 2, 1952. An estate tax return duly filed on April 23, 1954 showed no estate tax due. On or about April 15, 1957, after audit, a...
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*1021MEMORANDUM DECISION This is a controversy between the Weyerhaeuser Company and the Commonwealth Investment Corporation, under contentions that Commonwealth’s claim in the sum of $150,246.24 against Tri-State Building Materials Company, a corporation, in this proceeding1 should be subordinated to that of Weyerhaeuser’s which is for $20,990.30. The facts giving rise to such claim are not in dis...
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